The New Iraq

GWEN IFILL:

Rebuilding Iraq is about more than bricks and mortar. The nation's legal system — its courts, its constitution and its due process laws — must also be revamped. Where to begin?

We ask three lawyers who have been wrestling with just that question. Feisal al-Istrabadi is vice president of the U.S.-based Iraqi Forum for Democracy. He served on a State Department task force on the Iraqi legal system. Khaled Abou el Fadl teaches Islamic, human rights, and international law at UCLA. And Cherif Bassiouni teaches law at DePaul University, and is president of their International Human Rights Law Institute. He was also a member of the State Department task force.

Mr. al-Istrabadi, give us a primer on what the Iraqi legal system was before this war?

FEISAL AL-ISTRABADI:

Well, the Iraqi legal system in broad terms was based upon the Egyptian legal system, which in turn is based upon the French legal system. In fact the Iraqi code, the Iraqi civil code, was authored by an Egyptian scholar in the late 40s or early 50s.

And so in broad terms, it is a code civil country, that is to say outside the tradition of the Anglo-American common-in-law system, which we have in this country, and it relies for instance on, in the criminal context which is the context most often discussed, on an investigatorial judge and an inquisitorial system of trial.

GWEN IFILL:

How is that different from the way, help me to understand, how is that different — Americans think of legal systems and democracy, they think of a different set of strictures than they did in prewar Iraq.

FEISAL AL-ISTRABADI:

Yes. Well, the Iraqi judiciary, for instance, is not independent. Every judge, every prosecutor is an employee of the ministry of justice. And is answerable to the minister of justice and therefore of course is an extension, the entire Iraqi state was an alter ego for Saddam Hussein.

So that is the first principle that separates any sort of western understanding, whether let's say Euro-American understanding of a judiciary, and that is that in the first instance, the Iraqi judiciary was not only not independent, but very heavily dependent upon and an organ of the state, an instrument of the political will of the state and in fact became an instrument of the oppression of the people of Iraq.

GWEN IFILL:

So, Professor Bassiouni, as you took part in this task force made up of legal experts trying to get to the bottom of what you're dealing with now, what did you conclude the Iraqi legal system is now, is it in a shambles, is there anything to it now that the war is over?

CHERIF BASSIOUNI:

Well, I think it's important for the viewer to understand that Iraq had a well established legal system — not only in terms of its codification, but a tradition in its various law schools and its scholarship, and in its judges and prosecutors and its legal profession. It was for all practical purposes as good a legal system as all of those in the Arab world, and many in Europe as well.

What happened after the Ba'ath Revolution of '68 and particularly after '73 when Saddam became president, as Mr. al-Istrabadi said, he turned the system around by subverting the judges who were quite independent before that, and subverting the laws by adding many amendments to them, as well as special decrees enacted by the Revolutionary Command Council, which became simply an instrument of his tyranny.

So what needs to be done is not to rebuild the legal system from scratch, but rather to remove all of these encumbrances from the legal system which existed in Iraq until the late 60s and then reconstitute its judiciary to ensure that they're impartial and free from the political biases and pressures that were placed on them since the Ba'ath regime took place.

GWEN IFILL:

So professor al Fadl, let's start with where you begin to reconstruct, whether in fact the underpinnings exist for something new to be built or whether they don't, how do you begin? Where do you begin? Do you start with law schools, do you start by getting new judges? How do you erase the Ba'athists, for instance, from the positions of power they have? Where do you start?

KHALED ABOU EL FADL:

Well, I think you have to start with canvassing the local talent in Iraq, I think that just makes sense. There are highly educated and highly experienced judges, lawyers, many of the judges for instance are the best legal minds, were eventually exiled by Saddam Hussein or simply kicked out of the judiciary and remained in Iraq.

But their involvement in an effort to rebuild is crucial because they know the cultural context, they know the history, they know the mechanics; they know the technical, what technically existed before Saddam and what technically was changed after Saddam. I think it is crucial to — another crucial step is that Saddam had created a system in which people were promoted in law schools or in the Judiciary or in the Justice Department according to their political affiliation to the Ba'ath. That has to be undone.

What you've got to do is build the system, which promotes people, values people on merit and on technical competence and knowledge, not on their political biases and prejudices.

GWEN IFILL:

Professor El Fadl, when you talk about political biases, one of the big questions in this whole rebuilding exercise politically as well as legally has been what effect of religion and Islamic tradition will be on creating a new democracy? What is your thought on how integrated that has to be?

KHALED ABOU EL FADL:

Well, I think that any democracy, a democracy is worked out just simply in theory in abstract, in the sense of someone philosophizing about what an ideal democracy is, that doesn't work. A democracy has to take account of the reality on the ground and the context it has to work with.

Now, we know certain things don't work in a democracy regardless of the context, for instance, that a democracy which, in which people govern in the name of God, in which people yield power in God's name, is not going to be much of a democracy.

But at the same time, we know that through the experience of many eastern European countries, in fact the history of western European countries, that there are a large set of varieties, contextual varieties that can work for democracy.

What we've got to do I think in Iraq is that when it comes to religion, it would be a mistake, in my opinion, to expect people, if people are already, religion is ingrained in their system of values, in how they see right and wrong, in how they express sense of what is proper and improper, I think it would be a grave mistake to try to wrench it out by force and cause a further polarization and division in society but at the same time, to incorporate the democratic elements from that religious tradition.

GWEN IFILL:

Let me try to direct that same question to Mr. , I'm sorry, Mr. al-Istrabadi. Tell me what is your sense about religion, does it have to be integrated or can it be kept separate?

FEISAL AL-ISTRABADI:

I think one thing we need to avoid is to sort of have an orientalist view of Iraq, that Iraq is part of the Arab world and Islamic world which it clearly is and therefore what we know about the Islamic world applies to Iraq. Iraq's legal institutions have been very highly secularized for a very long time, since the foundation of the modern state of Iraq in the 1920s and its independence in 1932.

There are large secularizing influences in Iraqi society, even emanating from the highest traditions of the, for instance the Shia clergy the late Grand Ayatollah al-Khoi established as a matter of Islamic religious law, at least under the… in the Shia world, the necessity for the separation between mosque and state. As there are such forces within Iraq operating in what we would call a secularist framework, I think it would be a mistake simply to assume that because Iraq is, and without a doubt it is, a part of the Islamic world, that therefore we must incorporate principles of the Islamic law or somehow accommodate the creation of a theocracy.

Iraq is not Iran. And that is something that has to be taken into account whenever Iraq's legal institutions are discussed.

GWEN IFILL:

Professor Bassiouni, as we're differentiating between Iraq and other countries, also, what about the differentiation between the rebuilding job, which is necessary here and other countries where we have watched this happen, Kosovo, Afghanistan what about Iraq and perhaps its tendencies toward theocracy as the others were suggesting, might make this difficult, more difficult, at least different?

CHERIF BASSIOUNI:

Well, let me start by saying that there's a great deal of misconception about Iraq, and I think both Professor Abou El Fadi and Mr. al-Istrabadi have mentioned some of the facts that are not commonly known. Iraq has had a very good legal system since the 20s. It has been a secularized legal system. It has been a codified legal system, and they have had a long tradition of distinguished scholars and judges.

So the task of rebuilding either the Judiciary as a group of judges or streamlining the codes in terms of removing the influence of the Ba'ath legislation is a fairly easy task to do. The problem, however, is that the United States is approaching it in a manner that one would deem unconscionable.

For example, after the State Department spent a whole year with over 40 distinguished Iraqi expatriate jurists — judges, lawyers, professor — who live in England, the emirates, and the United States, who worked for a year to prepare a review of all of the Iraqi laws and how to reform them, one day just out of the clear blue sky, the Department of Justice decided to throw all that overboard and sending a group of six distinguished federal judges to Iraq to make an assessment of what is needed to reform the Iraqi justice system.

Now, these judges, with all due respect to them, distinguished federal judges, who probably did not know where Iraq was on the map the day before they were contacted, who have no idea what the Iraqi legal system are, are going to go and evaluate that system, without the benefit of all of the experts who are available.

GWEN IFILL:

And so it's almost like starting from scratch all over again. I'm sorry, I'm going to have to interrupt there; we're right out of time. Thank you, gentlemen, very much for joining us.