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The Court of Cassation has also a general right of revision of the proceedings of any Criminal Court, and a Court of Sessions has the right of revision of the proceedings of any court subordinate to it.

The Criminal Courts observe the Baghdad Criminal Procedure Regulations, and apply the Baghdad Penal Code and the penal articles of other laws.

These two codes were promulgated in 1918 and were introduced for the purpose of simplification of the criminal law, the Ottoman Code of Criminal Procedure and the Ottoman Penal Code being complicated, ill-arranged, and unsuited to the administration of criminal justice, which, at that time, was largely in the hands of British military officers. The Criminal Procedure Regulations are based on the Sudan Code of Criminal Procedure, which is itself based on the Indian Penal Code. It is simple to understand and, in general, has met with enough success to justify its being retained in its present general form. It is now being redrafted with such alterations and additions as have been shown to be necessary.

The Baghdad Penal Code is framed on the pattern of the Egyptian Penal Code, and embodies many sections of the Ottoman Penal Code. Time has shown that it requires a good deal of amendment and enlargement and it is now being redrafted, but its present general form will be retained. The law has been the subject of much unmerited criticism, to a large extent fostered by lawyers who, accustomed to the Turkish codes, found it inconvenient to study the new ones.

3. The Religious Courts.

The Religious Courts consist of :—
(a) The Shar'ah or Moslem Courts.
(b) The Jewish Ecclesiastical Courts.

(c) The Christian Ecclesiastical Courts.

The Shar'ah Courts exercise exclusive jurisdiction in matters. of the personal status of Moslems, and matters connected with the administration of their waqf.*

Appendix II† to this section shows the present distribution of the Courts, there being courts at many places throughout the country and a Court of Revision in Baghdad. It will be noted that some of the Qadhis are Sunnis and some are Shi'ahs, while there are both Sunni and Shi'ah Benches in the Court of Revision. Before the Occupation the Shar'ah Courts were exclusively Sunni. After the Occupation it was considered necessary, in view of the large proportion of Shi'ahs among the population of 'Iraq, to allow the Shi'ahs to apply their own personal law which differs from the Sunni law in some important respects. It was then arranged that Shi'ah cases of personal status should be brought in the Civil † See page 154.

* Charitable bequests.

Courts and transferred by the Court to Shi'ah jurists. Such jurists were appointed at various places and received salaries. The system was later carried to its logical end and, in 1923, a law was passed whereby Qadhis could be either Shi'ah or Sunni, and should be appointed having regard to the prevailing sect in the locality. By the same law a Shi'ah Bench was established in the Court of Revision.

The system has not been entirely successful, partly owing to the difficulty of finding Shi'ahs with the ability to carry out their duties in a methodical manner, and partly to the impossibility of finding Shi'ahs who can fulfil the duties of Peace Judges, a necessary qualification where there is little work. It will be noted. that in some places the Civil Judge is invested with powers of a Qadhi and sits as a Shar'ah Court. The reason for this is, as in the case of Qadhis acting as Peace Judges, the necessity for keeping down the number of the judicial staff in places where there is little work.

The Jewish and Christian Ecclesiastical Courts sit in Baghdad, and have exclusive jurisdiction to decide suits relating to marriage, divorce, dowry and maintenance payable to husband and wife. These courts have not yet been included in the judicial system, and legislation is required in the near future to provide for their proper establishment, in accordance with the Organic Law which provides that they shall have jurisdiction in the following

matters :

(a) In matters of marriage, divorce, separation, maintenance and the attestation of wills where the same are not attested by the Notary Public, except such matters as are within the jurisdiction of the Civil Courts, so far as concerns members of their own communities other than foreigners.

(b) In other matters of personal status concerning members of the communities, if both parties so agree. The personal status cases of Jewish and Christian foreigners are within the jurisdiction of the Civil Courts.

4. Foreigners' Cases.

By the Judicial Agreement, annexed to the Anglo-'Iraq Treaty, provision is made whereby foreigners who are parties to civil and criminal proceedings may claim that their cases be heard by a court which includes a British judge or judges; that is to

say :

(1) Where the court consists of a single judge, e.g. a Criminal Magistrate's Court or a court of a single judge in civil matters, the judge shall be British.

(2) Where the court consists of three judges, e.g. Bench Courts of First Instance in civil matters, Courts of

Session, and the Court of Cassation, there shall be at least one British judge who shall preside.

(3) Where the court consists of five judges, e.g. the Court of Cassation in full bench, there shall be at least two British judges, one of whom shall preside.

It is further provided that the house of a foreigner shall not be entered by the judicial or administrative authorities without a warrant signed by a British judge. In cases where a British judge is not available, or where the police are by law allowed to enter houses without warrant, entry into a foreigner's house must be reported forthwith to the nearest British judge.

This special constitution of courts has been devised to take the place of the judicial capitulations formerly enjoyed by foreigners in Ottoman Dominions, and, for the purposes of the agreement, the expression "foreigners" has been limited to the nationals of any European or American State which formerly benefited by capitulations in Turkey and did not renounce the same by an agreement signed before the 24th July, 1923, and of any Asiatic State which is now permanently represented on the Council of the League of Nations. The expression "foreigners " also includes corporations constituted under the laws of such State and religious or charitable bodies wholly or mainly composed of nationals of such States.

These arrangements are not new, and are, with slight variation, merely a confirmation of what has been in force for several years. When the courts were first opened, after the military occupation, a large number of British judges were employed, and foreigners' cases came before them as a matter of course. Later, the number of British judges was reduced, and it became necessary to make special provision for the hearing of foreigners' cases. Instructions were accordingly issued to the courts by the Judicial Secretary, in 1919, detailing the arrangements above mentioned, but nothing was done to give them the force of law. The arrangements worked quite smoothly, and the law, which, now that the Anglo-'Iraq Treaty and Agreements have been ratified, will, it is proposed, shortly be introduced to implement the provisions of the Agreement, will involve no changes in the business of the courts.

5. Jurisdiction over Members of the British Military Forces.

The Military Agreement, annexed to the Anglo-'Iraq Treaty, provides for the limitation of the jurisdiction of the local courts in certain matters, criminal and civil, where members of the British military forces are concerned, and for the special composition of Criminal Courts for the trial of grave offences against such forces. These matters will be dealt with by legislation, probably in the law regulating the trial of foreigners' cases

6. Extradition of Offenders.

The extradition of fugitive criminals is regulated by the Extradition of Offenders Law, 1923. It is provided that, where a requisition is made to the 'Iraq Government by the Government of a foreign State for the surrender of any fugitive criminal of that State who is, or is suspected of being, in 'Iraq, the Government may, if it thinks fit, issue order that an enquiry be made into the case and on completion of such enquiry, if the Government consider that the criminal ought to be surrendered, it may issue a warrant for the removal of the criminal and for his delivery at a place and to a person named in the warrant.

It is thus open to the 'Iraq Government to deliver up a criminal in spite of there being no extradition treaty with the country requesting the extradition. There is thus no difficulty in the way of the 'Iraq Government conforming to the extradition treaties made between Great Britain and other Powers until such time as 'Iraq shall be in a position to conclude her own treaties. Nevertheless, provision is made in the law for the conclusion of treaties, and it is stated in Article 16 that "Nothing in this law shall derogate from the provision of any treaty or agreement for the extradition of offenders and the provisions of this law shall be modified accordingly."

Up to the present, extradition proceedings in relation to India, Persia and Syria only have been under active consideration. In the case of India, no convention has been concluded, but ever since the Occupation the two countries have afforded each other reciprocal facilities in this respect, and requisitions are constantly passing between the two Governments. A provisional agreement has been concluded with Persia, which covers all offences, except those of a political or military nature. As regards Syria, proposals have for some time been on foot for the conclusion of a Convention on the lines of that concluded between Palestine and Syria, but these have as yet led to no definite result.

7. Commissions Rogatoires.

It is provided in the proclamation under which the courts are established that any court may, in pursuance of an order issued by the Minister of Justice in that behalf, hear and record the evidence in matters relating to judicial proceedings pending in the courts of foreign countries. It is thus open to the Minister to accept commissions received from other countries, whether there be or not an agreement to that effect with the country transmitting the commission, and some received through the diplomatic channel have, in fact, been executed. In the case of concluded Conventions. the procedure follows the agreement.

Conventions for the service of documents have been established with Syria and Palestine, indicating the channels through which

documents shall be transmitted, and there is a working arrangement with the Government of India, whereby documents are exchanged direct by the courts concerned. 'Iraq also benefits by the Anglo-French Convention for the service of documents in France.

Much difficulty was experienced by the courts in the administration of oaths to litigants in foreign countries, but that has now been overcome by arrangements being made for the oath to be sworn before British Consuls. The requisite form of oath is transmitted to the Consul concerned through the High Commissioner.

8. Execution of Foreign Judgments.

This is a matter which is now engaging the attention of the judicial authorities. The 'Iraq lawyers appear to be generally inclined to the opinion that no action can be brought in an 'Iraq court founded on a foreign judgment, and that in the absence of a treaty the original cause of action must, in every case, be enquired into. They point out that, although they are unable to indicate any Turkish jurisprudence on the subject, the Turkish Government in recent years passed a law permitting such actions, subject to reciprocal treatment secured by treaty with the country concerned. The matter has not yet come up in an acute form, but must be dealt with by legislation in the near future.

It is also under consideration whether an attempt should be made to arrange for the mutual execution of judgments for maintenance issued by the Moslem Religious Courts of 'Iraq and Syria. The judgments referred to would be limited to maintenance in favour of the wife or children of the body of the defendant, and, in view of the small amounts involved and the expense incurred in obtaining a fresh judgment in a foreign country, the matter is worthy of consideration, provided that satisfactory evidence is afforded of the defendant having had proper opportunity to appear and defend.

9. Staff.

With the exception of the adviser and four British judges the entire judicial staff is 'Iraqi. Of the British judges, Mr. G. Alexander is President of the Court of Cassation, and Messrs. A. MacLaren, J. Pritchard and J. Woodman are Presidents of the Courts of First Instance at Baghdad, Mosul and Basra respectively. A fifth British judge will be obtained as soon as the Ministry is in a position to offer a contract.

The British judges are not merely engaged in foreigners' cases, although such matters take up a good deal of their time.

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