It was reported on 14 May 2009 on  the front page of Al-Sabaah, the government newspaper, that Prime Minister Nouri al-Maliki had suspended in part the operation of Article 136(b) of the Criminal Procedure Code 23 of 1971 as part of his anti-corruption drive.

Article 136(b) has had a varied life.

All of Article 136 of the Criminal Procedure Code 23 of 1971 was repealed by Article 4 of Kurdish Law 22 of 2003 in so far as it applied in the Kurdish Region.

In the rest of Iraq, Article 136(b) of the Criminal Procedure Code 23 of 1971 in Book 2 (Investigation of offences, collection of evidence and initial investigation), Section 5 (Methods of compulsion to attend), Chapter six (Decisions of the judge after the end of the investigation) states:

ب – فيما عدا المخالفات المعاقب عليها بموجب قانون المرور رقم 48 لسنة 1971 المعدل والبيانات الصادرة بموجبه، لا تجوز احالة المتهم على المحاكمة في جريمة ارتكبت اثناء تادية وظيفته الرسمية او بسببها الا باذن من الوزير التابع له مع مراعاة ما تنص عليه القوانين الاخرى

(b) With the exception of infractions punishable by the amended Traffic Code number 48 of 1971, and related statements, the transfer of the accused for trial for an offence committed during performance of an official duty, or as a consequence of performance of this duty is possible only with permission of the minister responsible or his deputy, in accordance with the stipulations of other codes.

History of the legislation

The original text (as enacted) read:

ب – لا يجوز احالة المتهم على المحاكمة في جريمة ارتكبت اثناء تادية وظيفته الرسمية او بسببها الا باذن من الوزير التابع له مع مراعاة ما تنص عليه القوانين الاخرى

(b) The transfer of the accused for trial in an offence committed during performance of an official duty, or as a consequence of performance of this duty is possible only with permission of the minister responsible, in accordance with the stipulations of other codes.

The original was first amended by Law 201 of 1978 (6^th amendment to the Criminal Procedure Code 23 of 1971), published in the Official Gazette in issue 2691 of 8 January 1979. This added the exception of traffic offences.

ب – فيما عدا المخالفات المعاقب عليها، بموجب قانون المرور رقم 48 لسنة 1971 المعدل، والبيانات الصادرة بموجبه. لا يجوز احالة المتهم على المحاكمة في جريمة ارتكبت اثناء تادية وظيفته الرسمية او بسببها الا باذن من الوزير التابع له مع مراعاة ما تنص عليه القوانين الاخرى

(b) With the exception of infractions punishable by the amended Traffic Code number 48 of 1971, and related statements, the transfer of the accused for trial in an offence committed during performance of an official duty, or as a consequence of performance of this duty is possible only with permission of the minister responsible, in accordance with the stipulations of other codes.

It was subsequently amended to add the Minister’s deputy by Revolutionary Command Council Resolution 453 of 1984, Article 1, published in the Official Gazette on 30 April 1984. This amendment was then repealed by Revolutionary Command Council Resolution 748 of 1988 and the responsibility reverted to being that of the Minister alone.

Article 136(b) was ‘suspended’ by the CPA with effect from 18 June 2003 under Order 7 and specifically implementing Memo 3, section 4(d), published in the Official Gazette on 17 August 2003.

According to Transparency International, Prime Minister Allawi’s cabinet reinstated Article 136(b) in February 2005 by Order 14 of 2005. The validity of that suspension was challenged before the Federal Supreme Court given that the Transitional Administrative Law in Article 24 stated:

No official or employee of the Iraqi Transitional Government shall enjoy immunity for criminal acts committed while in office.

In its first decision, the Federal Supreme Court in 2005 considered that the re-instatement of Article 136(b) was not contrary to the Transitional Administrative Law. The court stated:

If the Minister or the one authorized to give the permission objects to making the reference, the injured party could file a suit before the Administrative Court in accordance to paragraph D(2) of Article 7 of the Law of State Shura Council No. 65 of1979 which is amended by Law No. 106 of 1989. The decision issued by the Administrative Court could be appealed before this court. Thus, if the Minister decided not to give a permission, the Minister’s decision, in this case, is not considered as decisive and final but it could be legally appealed.

Subsequently Prime Minister Jaffari suspended it again when he came to office later in 2005, but then reinstated it once more. On 3 September 2007 the Secretary General of the Council of Ministers issued a memo concerning the remit of the Commission on Public Integrity (now known as the Commission on Integrity).

The Council of Representatives passed a law on 18 September 2007 [English translation here] (which has gone through all 3 readings and is on the Council of Representatives website in the ‘passed law’ section). This attempted to provide some judicial oversight of the process in line with the decision of the Federal Supreme Court. It proposed the following amended text:

(b) With the exception of infractions punishable by the amended Traffic Code number 48 of 1971, and related statements, the transfer of the accused for trial for an offence committed during performance of an official duty, or as a consequence of performance of this duty is possible only with permission of the minister responsible or the head of an entity which is not organized in a ministry, in accordance with the stipulations of other codes. If the minister or head of entity did not permit such a transfer, then the prosecutor and anyone of interest may appeal the verdict before the Administrative Court within 30 days commencing from the day following the date of notification, and the court’s verdict shall be subject to appeal before the Federal Supreme Court.

Reasons
This law was enacted to allow an appeal from the decision of the responsible minister or head of an organisation which is not organised in a ministry – not to authorize an employee to be referred to trial.

The Council of Representatives also passed a law on 8 October 2007 [English translation here] (which has gone through all 3 readings and is on the Council of Representatives website in the ‘passed law’ section) which attempted to simply repeal Article 136(b).

Act to amend the Code of Criminal Procedure (23) of 1971

Article 1

Delete paragraph (b) of Article 136 of the Code of Criminal Procedure No. 23 of 1971 as amended.

Article 2

This law is effective as of the effective date of Order No. 55 issued by the Coalition Provisional Authority on 27 January 2004.

Reasons

The survival in force of paragraph 136(b) as referred to in Article 1 of this Act, is contrary to the provisions of Order No. 55 of 2004 establishing the Office of Public Integrity. Investigations carried out are a waste of resources in the absence of the approval of the competent minister to refer cases of corruption to the competent court as required by this paragraph and the present law is required for the purpose of applying the principle of the rule of law to all citizens without bias.

The reference to CPA Order 55 is a reference to the order establishing the predecessor to what is now the Commission on Integrity.

These ‘passed laws’ were never published in the Official Gazette and do not appear on the ILD database. Article 129 of the constitution states that: “Laws shall be published in the Official Gazette and shall take effect on the date of their publication, unless stipulated otherwise.” Therefore if a law is not published in the Official Gazette, it is not in force. Like the version which appears on the ILD database, the 2008 practitioner texts obtained from the legal bookshops in Mutanabi Street contain the text as it existed prior to the CPA orders. The CPA Memorandum 3 and the Allawi government Order 14 of 2005 are included as appendices. Neither the practitioner texts nor the ILD database make any reference to the ‘passed laws’ of 18 September 2007 or 8 October 2007.

Incomplete and anecdotal information received thus far suggests that the Presidency Council did not unanimously ratify the law. In future Parliaments, the President of Iraq will have a predominantly ceremonial role without a veto and pursuant to Article 73 of the constitution will be deemed to have ratified any law sent to him 15 days after it was sent to him by the Council of Representatives. However during this first Parliament, under the transitional Presidency Council provisions, Article 138(5) states that:

A- Legislation and decisions enacted by the Council of Representatives shall be forwarded to the Presidency Council for their unanimous approval and for its issuance within ten days from the date of delivery to the Presidency Council, except the stipulations of Articles 118 and 119 that pertain to the formation of regions.

B- In the event the Presidency Council does not approve, legislation and decisions shall be sent back to the Council of Representatives to reexamine the disputed issues and to vote on them by the majority of its members and then shall be sent for the second time to the Presidency Council for approval.

C- In the event the Presidency Council does not approve the legislation and decisions for the second time within ten days of receipt, the legislation and decisions are sent back to the Council of Representatives, which has the right to adopt it by three-fifths majority of its members, which may not be challenged, and the legislation or decision shall be considered ratified.

A Human Rights Watch report entitled The Quality of Justice: The Failings of Iraq’s Central Criminal Court dated Dec 14 2008 states:

In October 2007, the Iraqi Council of Representatives (majlis al-nuwwab, or parliament) amended the Criminal Procedure Code, deleting article 136(b), even though it was already constitutionally inoperable. The Presidency Council, which is authorized to review legislation and then ratify or veto it, did not take action in this instance. The legislation was returned to parliament, but no further action was taken.

This may be inaccurate in that it would appear that the Presidency Council took no action, which should ordinarily lead not to a return of the law to the Council of Representatives but to the law being automatically ratified and passed to the Official Gazette for publication which did not happen. Enquiries have been made to the Minister of Justice as to why this passed law has not been published in the Official Gazette.

It has been suggested, as an alternative to repeal, that a committee at the Council of Ministers would deliberate upon each refusal and although they could not force a Minister to waive his veto, they could apply some pressure.

The 2008 Commission of Integrity report [p. 15] records that in 2008, 70 corruption cases were prevented from transfer to trial by the intervention of Ministers.

Anecdotal evidence suggests that this law has had a considerable effect on the number of investigations brought against government officials, because it is presumed that they will be protected by their ministers and therefore that energies expended in investigating them will be wasted. That would appear to be the rationale behind the Council of Representatives passing the laws of 18 September 2007 and 8 October 2007.

A further proposal to amend the law was put before the Council of Representatives in late 2008. The Council of Representatives Integrity Committee had endorsed a proposal from the Commission on Integrity to repeal Article 136(b). This law is listed on the Council of Representatives website as having been through its first reading.

Although the ‘right answer’ to the existence of Article 136(b) would at first appear to be to simply repeal it, this may not be as simple as it first appears. The number of people in detention on remand without having been brought before a judge is very high and the conditions in which such people are being kept are poor. It is possible for false accusations to be made, resulting in arrest and imprisonment on remand for up to a year before production before a judge. Anecdotal evidence from the ministries suggests that allegedly false accusations were being made against employees. Although Article 136(b) relates to the point of transfer for trial (and would not therefore prevent detention during the investigation period) as stated above, its existence is discouraging investigations which might be seen as a waste of time. Reform of 136(b) is therefore necessary in the context of a wider review of the Criminal Justice System including tackling the large number of people on remand.

UPDATE: On 18 April 2011 the Iraqi Council of Representatives again passed a law to repeal Article 136(b). Will the law reach the Official Gazette this time?

The text of the law on the Council of Representatives website reads as follows:

قانون تعديل قانون أصول المحاكمات الجزائية المرقم 23 لسنة 1971 الأثنين 18 نيسان 2011

استنادا لاحكام البند (اولا) من المادة (61) من دستور جمهورية العراق اصدر مجلس النواب القانون الاتي:- قانون تعديل قانون أصول المحاكمات الجزائية المرقم 23 لسنة 1971 رقم () لسنة 2011 المادة (1): تلغى الفقرة (ب) من المادة (136) من قانون أصول المحاكمات الجزائية رقم (23 لسنة 1971 المعدل). المادة (2): ينفذ هذا القانون من تاريخ نشره في الجريدة الرسمية. الاسباب الموجبة لحصر صلاحية تقرير براءة المتهم أو ادانته بيد القضاء ولتأكيد استقلاله وضمان دور أكبر في ميدان محاربة الفساد وعملاً بمبدأ الفصل بين السلطات شرع هذا القانون.

Analysis here.