Scattered Across the Decades: The Philosophical Confusion of Iraqi Law

Should printing presses be licensed by the government? The answer is a good test of your posture towards authoritarianism and bureaucracy. A 1999 resolution of the Iraqi Revolutionary Command Council headed by Saddam Hussein required licensing of all private printing presses by the Ministry of Information. Now, a draft law pending in the Iraqi parliament would amend the 1999 law to revive enforcement of printing press licensing by the Ministry of Culture, raise fees for licensing to over 1000 USD, and impose imprisonment of two years for violations, according to the Iraqi parliament’s website.

The 1999 printing press law was one of many laws targeted for repeal by legal reform programs funded by international donors like USAID and the World Bank. Now, instead of being repealed, the law is being revived and made harsher. The revival of the 1999 law and inaction on dissolving the rules and state bureaucracies which controlled every aspect of life in Ba’athist Iraq raise questions. What kind of government and society does Iraq want, one with space for private business and personal freedom, or the continuance of Ba’athist state socialism and totalitarianism under a veneer of electoral democracy? Among the questions is the degree to which bureaucracy empowers corruption, a topic recently explored here by Professor Frank Gunter.

Are laws like the printing press law kept to maintain the prerogatives of ministry bureaucracies and collect official and unofficial fees rather than for any real policy purpose? Or do they reflect a majority belief in state control of ordinary business and expressive activities?

The "Manifesto” recently published by Drs. Ali Allawi, Abbas Kadhim, and Luay al-Khatteeb sets forth an ambitious program for Iraqi national renewal, including a new constitution which would resolve the omissions and ambiguities of the Constitution of 2005 and an overhaul of Iraqi law. The Manifesto noted:

The thicket of laws and regulations that have been layered over the decades must be streamlined. They contribute greatly to the dysfunction of government, the unchecked high-handedness of the executive and the provision of justice.

The printing press law shows how difficult it will be to achieve consensus on what a new body of Iraqi law should establish. The impulse towards bureaucratic control in Iraq is still strong. Government by a British mandate, a monarchy, populist military dictatorships, the Ba’athist ideology of pan-Arab nationalism paired with state socialism, a foreign military occupational government, and an electoral parliamentary democracy has created a confused body of law, most of it authoritarian and protective of state prerogatives. Every government has added more laws while removing few of the previous laws. The Civil Code of 1951 established the framework of business and property relationships in a market economy, but was limited and criticized by enactments after the Revolution of 1958 without being repealed or even amended significantly. This is good: the respected Civil Code should be the basis of Iraqi contract, property, tort, and agency law going forward. However, the structure of the state established by other laws obstructs the private relationships regulated by the Civil Code.

As an older manifesto, the Law of Legal Reform of 1977, stated: “[L]egislation in Iraq includes a combination of rules taken from various sources differing in spirit and trend. The 1977 Legal Reform law is really a manifesto for a state-socialism rather than a positive law because it contains few specific rules. For example, the Legal Reform Law noted its own philosophical conflict with the 1951 Civil Code, but it did not repeal any of the Civil Code’s positive rules. It disparaged the Code’s reliance on “sovereignty of the will” (freedom of contract) rather than socialist national development direction. So Royal, Ba’athist, and post-invasion laws remain on the books, many conflicting with each other. The spirit of the Civil Code conflicts with the socialist Law of Regulation of Trade of 1970 and clauses of the Commercial Code of 1984. Even the Law of Legal Reform of 1977 remains on the books. An unenforced law should not remain as a ghost to confuse the country and deter investment.

To the extent these laws are enforced, like the Law of Regulation of Trade’s requirement of export licenses for ordinary commodities like dates, they are a drag on the Iraqi economy. A coherent legislative program to sweep away bureaucracy, enable the private sector, cut waste, enhance freedom, and establish a real social safety net might be an electoral winner in the coming campaign.

In addition to the thematic confusion, there is the textual confusion caused by the lack of an officially codified edition of the Laws of Iraq. Codification is the organization of laws by subject matter. For example, Title 18 of the United States Code contains federal criminal law, Title 10 governs the military. In Iraq, laws are published in the Official Gazette after enactment, and referred to as “Law of [subject, e.g. “Printing Presses”] [number e.g. 22] of [year e.g. 1984] thereafter. As laws are amended, the amendments to the law are published, but usually without a recompiled complete version of the law. In American terms, this as if only the Public Laws of the United States were published, and not organized and republished into the United States Code. Private publishers compile amendments and reprint updated versions of the most important laws, but not all.

The wonderful Iraq Law Database originally designed by the United Nations Development Program and now maintained by the Higher Judicial Council, has kept up-to-date versions of Iraqi statutes online, but there is no compiled edition of the laws of Iraq organized by subject matter. The process of codification by subject matter would also help resolve the philosophical conflicts in Iraqi law. Codification would require a detailed examination of all laws and legislative action to repeal, reconcile, amend, replace, and enact laws. This should have been done already, but political confusion, the spoils system, the fight against ISIS, and the parliament’s poor work ethic are all likely reasons.

While the 1977 Law of Legal Reform conflicts with the spirit of the freedoms established in the Constitution of 2005, it does express a coherent philosophy, however oppressive. It was correct in its methodological statement that

An attempt to determine what the reform of the legal system aims at must be preceded by the identification of the ideological background on which reform is based, and by changing, modifying or revoking existing legislation.

Within the parliament, government and Iraqi civil society, there needs to be a discussion about “the ideological background on which reform is based.” The principles of the Constitution of 2005 should be the basis upon which a new legal framework is built. Prime Minister Haidar al-Abadi and Speaker Salim al-Jubouri are able and have shown their willingness to lead, but their term is now potentially short. Their campaigns for reelection should be built upon a clear reform program to set the course for the Iraqi future. An acceptance of the new Manifesto and a rejection of the old manifesto expressed by the Law of Legal Reform of 1977 would be a good place to start. The work to be done will require thousands of good judgments on the potential effects of paragraphs in old and new laws. As the saying goes, “The devil is in the details."

Thomas Doherty is an American-trained lawyer who worked in Iraq in programs between 2003 and 2014, including with the General Counsel's office of the Coalition Provisional Authority, the U.S. State Department as Rule of Law advisor to Provincial Reconstruction Teams Babil and Basrah, the USAID Tijara economic growth program, and USAID Tarabot Administrative Reform Program. His Twitter handle is @dohertytjp

A PDF of this article with references is available on request.