Iraqi High Court Authority - A State-Practice Review of the Source of High Court Authority and an...

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ISLAMIC LAW AND LAW OF THE MUSLIM WORLD

at New York Law School

Research Paper Series 07-01

Iraqi High Court Authority: A State-Practice Review of the Source of High

Court Authority and an Assessment of 2005 Iraq Constitution

by

Matthew T. SimpsonPublic International Law and Policy Group

This paper can be downloaded free of charge from theSocial Science Research Network at:

http://ssrn.com/abstract= 1061101New York Law Schools website can be accessed at

http://www.nyls.edu
http://ssrn.com/abstract=1061101http://ssrn.com/abstract=1061101


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IRAQI HIGH COURT AUTHORITY:ASTATE-PRACTICE REVIEW OF THE SOURCE OF HIGH

COURT AUTHORITY AND AN ASSESSMENT OF 2005IRAQ CONSTITUTION

Matthew T. Simpson1

November 2007

TABLE OF CONTENTS

Introduction ....................................................................................................................................1

Powers and Functions....................................................................................................................2

Independence ..................................................................................................................................2Separation of Powers ...........................................................................................................3

Independence of Judges .......................................................................................................4

Authority of the Court...................................................................................................................5Judicial Review ....................................................................................................................5

Judicial Review of Legislative Actions ...................................................................5Judicial Review of Lower Courts ............................................................................6

Finality of Decisions ...........................................................................................................8

Structure of the Court ...................................................................................................................8

Judges ..................................................................................................................................9

Appointment ............................................................................................................9Qualification ............................................................................................................9

Number ..................................................................................................................10

Term and Removal.................................................................................................10Judicial Council.................................................................................................................11

Administration of the Court .......................................................................................................12Claims ................................................................................................................................13

Initiation, Standing & Selection.............................................................................13

Transparency, Location & Administrative Procedures .....................................................14

Conclusion ....................................................................................................................................15

INTRODUCTION

In 2005, the Iraqi Constitutional Committee drafted the Iraqi constitution, replacing the

Law of Administration for the State of Iraq for the Transitional Period ("TAL"), the first

governing law in Iraq since the Coalition Provisional Authority took control in 2003.Recognizing the 2005 constitution as a temporary document, the first parliament formed the

Constitutional Review Committee (CRC) in September of 2006 to determine whether and how

to amend the constitution.

1 Matthew T. Simpson is a Senior Research Associate with the Public International Law & Policy Group in

Washington, D.C. He received his B.A. cum laude, with Highest Honors in 2004 from Hobart College, Geneva,

N.Y. He can be reached at [email protected]. The author would like to thank Kora Mehta and Paul

Williams of the Public International Law & Policy Group. The views and opinions expressed herein are solely those

of the author and do not represent the views of his firm or its affiliates.


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In light of the CRCs efforts, this article reviews state practice for the sourcing of high

court authority, synthesizes the results to identify patterns where possible, and assesses the Iraqiconstitutions consistency with state practice. Specifically, this article examines whether states

use constitutional provisions or domestic legislation to provide for their high courts powers and

functions, independence, authority, structure and administration, and identifies for the CRC those

provisions that may be inconsistent.

Powers and Functions

Many states include a broad statement identifying the powers and functions of the high

court. Such statements can include, on a very general level, which controversies a high court

may consider, and what role the high court is to play in society.

The powers and functions of a high court are typically set forth in the states constitution

and reaffirmed in their legislation. For example, Algeria2

and Portugal3

each identify generalpowers and functions of their high courts in both their constitutions and legislation. In the

Philippines, the constitution broadly charges the Supreme Court with settling actualcontroversies involving rights which are legally demandable and enforceable, and to determine

whether or not there has been a grave abuse of discretion amounting to lack or excess ofjurisdiction on the part of any branch or instrumentality of the Government.

4Likewise in

Bulgaria, the constitution charges the judicial branch, namely the Bulgarian Supreme Court, with

safeguarding the rights and legitimate interests of all citizens, legal entities, and the state.5

Currently the Iraqi Constitution addresses the powers and functions of the Supreme Court

in Article 93s discussion of the Supreme Courts jurisdiction. While most states opt for aseparate provision for the powers and functions of the high court, grouping such statements

together in a provision on jurisdiction is not inconsistent with state practice.6

2 ALGERIA CONST. art. 139 (1976), available athttp://www.oefre.unibe.ch/law/icl/ag00000_.html (last visited Feb.21, 2007) (The judicial power protects the society and the liberties. It guarantees, to all and to everyone, the

safeguard of their fundamental rights.);Regulations Setting the Functioning Rules of the Constitutional Council

(Algeria, 2000), available athttp://www.conseil-constitutionnel.dz/indexAng.htm (last visited Mar. 8, 2007) (The

Constitutional Council decides on the conformity of organic laws with the Constitution before their promulgation in

accordance with the last paragraph of Art. 123 of the Constitution by issuing a mandatory opinion after having beencalled upon by the President of the Republic in accordance with the second paragraph of Art. 165 of the Constitution

within the time limit set out in the first paragraph of Art. 167.).3 PORTUGAL CONST. art. 223 (1976), available athttp://www.oefre.unibe.ch/law/icl/po00000_.html (last visited Feb.

21, 2007);Law on the Constitutional Courtart. 1 (Portugal, 1982), available athttp://codices.coe.int/ (last visitedMar. 7, 2007) (The Constitutional Court has authority over all Portuguese jurisdiction...).4 PHILIPPINES CONST. art. VIII 1 (1987).5 BULGARIAN CONST. art 117 (1991), available athttp://www.oefre.unibe.ch/law/icl/bu00000_.html (last visited

Feb. 21, 2007).6 Despite the traditional aversion to double negatives, this article emplys them regularly. In these instances,

differences exist between stating that a provision is consistent with state practice, is not inconsistent with state

practice, and is inconsistent with state practice. Most importantly, consistent with state practice implies apositively analogous relationship between a provision and state practice, while not inconsistent does not go so far

as to suggest a positively analogous relationship, but rather identifies the lack of a negatively analogous relationship.

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Independence

Judicial independence is an essential characteristic of nearly all modern high courts and

widely accepted as a prerequisite to successful governance. The Universal Declaration of

Human Rights (1948) provides in Article 10 that [e]veryone is entitled in full equality to a fair

and public hearing by an independent and impartial tribunal, in the determination of his rightsand obligations and of any criminal charge against him.7

The separation of the judiciary (and

therefore the high court) from any external influence is thus a necessary feature of most high

courts. Most states also require the independence of judges from external influences.

Separation of Powers

Most states establish the independence of the high court from all other governmental

entities in either their constitution or legislation, while some address the high courts

independence in both the constitution and legislation.

Many states provide for the independence of the high court in the constitution. Forexample, in Portugal, the constitution establishes the independence of all federal courts, and

separates the judiciary from other branches of government.8

In South Africa, the 1996constitution establishes an independent judiciary, including a Constitutional Court, with the

power to review and to abolish legislation inconsistent with the constitution.9

In the Philippines,

the constitution defines the powers of the Supreme Court,10

and prohibits the legislature fromdepriving the Court of such powers.

11In Macedonia, the constitution proclaims the

Constitutional Court independent and autonomous of all other government entities,12

and the

Algerian constitution makes a similar assertion.13

In Bahrain, the constitution provides for anindependent judiciary.

14

Some states, however, provide for the independence of the high court solely in

7See Adel Oman Sherif and Nathan J. Brown, Judicial Independence in the Arab World, available at

http://www.pogar.org/publications/judiciary/sherif/jud-independence.pdf, quotingGeneral Assembly of the United

Nations, Resolution No. 217 A (III) of December 10, 1948.8 PORTUGAL CONST. art. 203 (1976) ([t]he courts are independent and subject only to the law.).9 SOUTH AFRICA CONST. ch. 8, sec. 165(2) (1996), available at

http://www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1 (last visited Feb. 21, 2007)

(providing that The courts are independent and subject only to the Constitution and the law, which they must applyimpartially and without fear, favour or prejudice.).10 PHILIPPINES CONST. art. VII 5 (1987).11 Id., art. VII 2 (1987) (providing that The Congress shall have the power to define, prescribe, and apportion the

jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in

Section 5 hereof...No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of itsMembers.).12 MACEDONIA CONST. art. 98(2) (1991), available athttp://www.oefre.unibe.ch/law/icl/mk00000_.html (last visitedFeb. 21, 2007) (providing that Courts are autonomous and independent. Courts judge on the basis of the

Constitution and laws and international agreements ratified in accordance with the Constitution.).13 ALGERIA CONST. art. 138 (1976) (The judicial power is independent.).14 BAHRAIN CONST. sec. 4, art. 104 (2002), available athttp://www.oefre.unibe.ch/law/icl/ba00000_.html (last

visited Feb. 21, 2007) (No authority shall prevail over the judgment of a judge, and under no circumstances maythe course of justice be interfered with. The law guarantees the independence of the judiciary, and the law shall lay

down the guarantees of judges and the provisions pertaining to them.).

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legislation. For example, in Bosnia-Herzegovina, the Rules of Procedure of the Constitutional

Court provides the Constitutional Courts independence from all levels of authority and all stateauthorities.

15In Canada the Supreme Court and Exchequer Courts Act 1875 established an

independent Supreme Court.16

In Hungary, Act No. XXXII establishes the independence of the

Constitutional Court.17

In other cases, states provide for the high courts independence in both the constitution

and legislation. For example, in Croatia, Article 117(2) of the constitution provides for the

independence of the judicial power broadly,18

while Article 2(2) of the Constitutional Act of theConstitutional Court provides for an independent Constitutional Court.

19

Article 92(1) of the Iraqi Constitution briefly establishes the high courts independence:

The Federal Supreme Court is an independent judicial body, financially andadministratively.

Largely complete, this provision may benefit from greater emphasis on the importance ofthe separation of powers. Such language may be found in the Bosnia-Herzegovina constitution.

Independence of Judges

Most states include a provision emphasizing the independence of the high court judges toreinforce the independent nature of the high court decision-making process. Either the

constitution or the legislation may contain this provision addressing the independence of the

judges.

The constitution of the Czech Republic sets forth the independence of the high courtjudges and emphasizes that no one may interfere with their impartiality.

20Conversely, France

21

15Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina arts. 2-3 (Bosnia-Herzegovina, 2004),

available athttp://codices.coe.int/ (last visited Feb. 21, 2007);Law on the Constitutional Courtart. 2 (Slovenia)(1994), available athttp://codices.coe.int/ (last visited Feb. 21, 2007).16Encarta Encyclopedia Online, Supreme Court of Canada, available at

http://encarta.msn.com/encyclopedia_1741500815/Supreme_Court_of_Canada.html (last visited Feb. 22, 2007).17

Act No. XXXII of 1989 on the Constitutional Court, Amended by Act LXXVIII of 1994, Preamble (Hungary,1989), available athttp://www.mkab.hu/content/en/encont5b.htm (last visited Feb. 22, 2007).18 CROATIA CONST.art 117(2) (1990), available athttp://www.oefre.unibe.ch/law/icl/hr00000_.html (last visited

Feb. 21, 2007) (Judicial power shall be autonomous and independent.).19The Constitutional Act of the Constitutional Court of the Republic of Croatia, art. 2(2), No. 49/02 (Croatia, 2002),

available athttp://codices.coe.int/ (last visited Feb. 21, 2007) (The Constitutional Court shall be independent of allstate bodies, and shall independently distribute the assets approved in the state budget for the functioning of the

activities of the Constitutional Court, in accordance with its annual budget and the law.).20 CZECH REPUBLIC CONST. art. 82 (1992), available athttp://www.oefre.unibe.ch/law/icl/ez00000_.html (last

visited Feb. 21, 2007) ((1) Judges shall be independent in the performance of their duties. Nobody may threaten

their impartiality.).21Institutional Act on the Constitutional Councilart. 7 (France, 1958), available athttp://codices.coe.int/ (last

visited Feb. 21, 2007) (A decree issued in the Council of Ministers on a proposal from the Constitutional Councilshall lay down the obligations placed on the members of the Council in order to guarantee the independence and

dignity of their office. These shall include in particular an obligation on members of the Constitutional Council, for

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and Hungary22

set forth requirements for the independence of high court judges in their

legislation.

Article 88 of the Iraqi Constitution provides generally that judges are independent.

Judges are independent, and there is no authority over them except that of thelaw. No power shall have the right to interfere in the judiciary and the affairs ofjustice.

Though not specific to Supreme Court judges, this provision likely sufficiently

emphasizes the independence of all judges, including those on the Supreme Court. Therefore, it

is unlikely a constitutional amendment is necessary to specify the independence of the justices ofthe Supreme Court, though it is advisable that a statement to that effect be made in the

legislation.

An amendment to Article 88, however, may be appropriate to set forth a prohibition

against interference with the independence of the judiciary. Such a prohibition may send astrong message against interference with the independence of the high court, and provide a cause

of action should such interference occur.

Authority of the Court

States grant a broad array of authorities to their high court. Some states address the scope

of the high courts review, typically whether they can consider the constitutionality of legislative

action or lower court decisions. Some states also address the binding nature of the authority ofthe high court, and whether the decisions of the court are final. Identifying the authority of the

high court at the point of its establishment enhances the credibility of the institution and limitssubsequent challenge of that authority. States, therefore typically set forth the high courts

authority in both the constitution and legislation. Usually, a states constitution includes broad,

fundamental statements concerning the high courts adjudicatory powers while legislationprovides more detailed, specific powers.

Judicial Review

Typically high courts are permitted two types of judicial review: 1) judicial review of

laws and actions of the states government; and 2) judicial review of decisions of the states

lower courts.

the duration of their term of office, to refrain from adopting a position in public on matters which are or could be the

subject of a decision of the Council and from engaging in consultations on such matters.).22 Act No. XXXII of 1989 on the Constitutional Court, Amended by Act LXXVIII of 1994, art. 12 (Hungary, 1989)

(The Members of the Constitutional Court shall be independent, and shall base their decision solely on the

Constitution and other Acts.).

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Judicial Review of Legislative Action

Judicial review of the constitutionality of laws is often one of the most important means

of establishing judicial authority. This type of review provides protection for core constitutional

rights against the power of the majority or the executive. The judicial review of legislative

action may be set forth in either the states constitution or its legislation.

The constitutions of Armenia,23

Latvia,24

and Yemen,25

permit their high courts to

review all legislative action for its consistency with the constitution. In Slovenia, however,legislation provides that the Federal Supreme Court shall have jurisdiction over all such matters

as are vested in the Court by statute.26

Legislation also provides that the Federal Supreme Court

shall have the authority to evaluate the conformity of the government acts and laws to existingstatutes, the Constitution, and the international treaties of which Slovenia is a signatory.

27

Legislation in Spain sets forth the Constitutional Courts jurisdiction in any action relating to the

unconstitutionality of laws.28

Judicial Review of Lower Courts

The judicial review of lower court decisions may be set forth in either the statesconstitution or its legislation. The constitutions of Paraguay

29and Malta

30permit the

Constitutional Court to review any decision by a lower court, particularly those involving a

constitutional issue. In Tunisia, the constitution permits the high court to hear only allegations oftreason by a government official.

31According to Portugals constitution, individuals must go

through an intermediary appeals court before they petition the Supreme Court to hear their

23 ARMENIA CONST. art. 100 (1995), available athttp://www.oefre.unibe.ch/law/icl/am00000_.html (last visited Feb.

21, 2007) (providing that the Constitutional Court shall decide on whether the laws, the resolutions of the NationalAssembly, the orders and decrees of the President of the Republic and the resolutions of Government are inconformity with the Constitution.).24 LATVIA CONST. art. 85 (1922) (providing that the constitutional Court shall review cases concerning the

compliance of laws with the Constitution.).25 YEMEN CONST. art. 151 (1991), available athttp://www.oefre.unibe.ch/law/icl/ym00000_.html (last visited Feb.

21, 2007) (permitting the Supreme Court to judge cases and pleas that laws, regulations, bylaws and decisions are

not constitutional.).26

Law on the Constitutional Court art. 13 (Slovenia, 1994).27 Id.art. 22.28Organic Law No. 2/1979 on the Constitutional Courtart. 2.1 (Spain, 1979), available athttp://codices.coe.int/

(last visited Feb. 21, 2007) (The Constitutional Court shall have jurisdiction, in the circumstances and form laid

down by this Law: a. in any action or question relating to the unconstitutionality of laws, legislative provisions or

enactments having the force of law.).29 PARAGUAY CONST. art. 259(1) (1992), available athttp://www.oefre.unibe.ch/law/icl/pa00000_.html (last visited

Feb. 21, 2007) (authorizing the Supreme Court to supervise every judicial branch organization and to decide, on anunappealable basis, conflicts of jurisdiction and competence, in accordance with the law).30 MALTA CONST. sec. 95(f) (1964), available athttp://www.oefre.unibe.ch/law/icl/mt00000_.html (last visited Feb.

21, 2007) (permitting the Constitutional court to consider: any question decided by a court of original jurisdiction

in Malta together with any of the questions referred to in the foregoing paragraphs of this subsection on which an

appeal has been made to the Constitutional Court).31 TUNISIA CONST. art. 168 (1959), available athttp://www.oefre.unibe.ch/law/icl/ts00000_.html (last visited Feb.

21, 2007) (The high court meets in a case of high treason committed by a member of the Government.).

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cases.32

In South Africa the constitution restricts their high courts to appellate review and allows

lower courts to take up constitutional issues in regular proceedings.33

In Argentina, theconstitution gives the Supreme Court appellate jurisdiction in most cases, while allowing original

jurisdiction for certain claims.34

Some states also address this issue in legislation. For example, in Malaysia, the Courts ofJudicature Act (Act 91) gives the Federal Court jurisdiction to hear and determine appeals

against decisions made by the Court of Appeals (excluding several non-appealable matters.)35

Legislation in Finland permits the Supreme Court wide jurisdiction over all lower courtdecisions.

36

Article 92(2) of the Iraqi constitution provides that the work of the Federal SupremeCourt shall be determined by a law passed by the Council of Representatives:

[T]he work of the Court shall be determined by a law enacted by a two-thirds

majority of the members of the Council of Representatives.

Further, Article 93 of the Iraqi constitution enumerates the jurisdiction of the

Federal Supreme Court (in relevant part):

The Federal Supreme Court shall have jurisdiction over the following:

First: Overseeing the constitutionality of laws and regulations in effect.

...Eight:

A. Settling competency disputes between the federal judiciary and thejudicial institutions of the regions and governorates that are notorganized in a region.

B. Settling competency disputes between judicial institutions of theregions or governorates that are not organized in a region.

On its own, the work of the Court in Article 92(2) is open to interpretation, such that it

32 PORTUGAL CONST. art. 210(3) (5) (1976) (providing: The courts of law of first instance shall be, as a rule, the

district courts, to which the courts mentioned in Article 211(2) shall have an equivalent status. The courts of law of

second instance shall be, as a rule, the courts of appeal. The Supreme Court of Justice shall operate as a court offirst instance or of second instance in the cases prescribed by law.).33 South Africa Const. art. 174 (1996).34 ARGENTINA CONST. sec. 117 (1853), available athttp://www.oefre.unibe.ch/law/icl/ar00000_.html (last visited

Feb. 21, 2007) (The Supreme Court shall have appellate jurisdiction, with such regulations and exceptions as

Congress may prescribe; but in all matters concerning foreign ambassadors, ministers and consuls, and in those inwhich a province shall be a party, the Court shall have original and exclusive jurisdiction.).35Courts of Judicature Act (Act 91) (Malaysia, 1964), available athttp://www.kehakiman.gov.my/legislation/Court_Of_The_Judicature_Act.shtml (last visited Feb. 21, 2007);

MARTINDALE HUBBELL INTERNATIONAL LAW DIGEST, Malaysia (2006).36Supreme Court Actart. 3 (Finland, 1974), available athttp://codices.coe.int/ (last visited Feb. 21, 2007) (The

Supreme Court shall examine and decide as the final instance: 1. all litigation which according to law or special

decrees may have been brought before the judicial department of the Senate of Finland; 2. appeals against thedecisions and actions of authorities, which until now have been subject to appeal to the judicial department of the

Senate; 3. appeals against the judgments and decisions of the Land Court.).

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may either refer to the narrow administrative work of the Court, or to its broader review

capacities. When read in conjunction with Article 93, however, the two articles provide a broadstatement as to the authority of the Court to both review judicial and legislative decisions, subject

to change by the Council of Representatives. This provision is not inconsistent with state

practice. Further, in light of the political volatility in the state, and the on-going development of

the Iraqi judiciary, it may well be advisable to permit the Council of Representatives a degree ofcontrol over the activities and jurisdiction of the Court so as to ensure the institution is as flexible

as necessary.

Finality of Decisions

States often set forth the binding effect of their high courts decisions in legislation. InHungary, for example, legislation sets forth the binding nature of high court decisions.

37

Croatias legislation mandates that all decisions of the Constitutional Court are binding on all

persons and provides guidance for their enforcement.38

Spain similarly asserts the finality ofSupreme Court decisions in its legislation, making them effective upon publication in the official

gazette.

39

Some states, however, choose to include statements on the finality of the decisions of thehigh court in their constitutions. Armenia

40and the Czech Republic

41are example of this.

Article 94 of the Iraq Constitution sets forth the finality of the decisions of the Supreme Court.

Decisions of the Federal Supreme Court are final and binding for all authorities.

While it may be more effective to set forth the binding nature of the Supreme Courts

decisions on all people, in addition to all authorities, a constitutional amendment is notnecessary. It is sufficient to include such a statement in the legislation establishing the Supreme

Court.42

Structure of the Court

Clarification of the structure of the high court at the time of its establishment provides the

public with greater understanding of the workings of the court, and ensures its consistent

37 Act No. XXXII of 1989 on the Constitutional Court, Amended by Act LXXVIII of 1994, art. 27.2 (Hungary,

1989) (The decisions of the Constitutional Court shall be binding on everybody.).38 The Constitutional Act of the Constitutional Court of the Republic of Croatia, art. 31, No. 49/02 (Croatia, 2002).39Organic Law No. 2/1979 on the Constitutional Courtart. 38.1 (Spain, 1979) (Judgments handed down in

unconstitutionality proceedings shall have the force of res judicata, shall be binding on all public authorities andshall have consequences of a general nature from the date of their publication in the Official State Gazette".).40 ARMENIA CONST. art. 102 (1995) (The decisions and conclusions of the Constitutional Court shall be final andshall come into force following the publication thereof.).41 CZECH REPUBLIC CONST. art. 89.2 (1992) (Enforceable decisions of the Constitutional Court are binding on all

authorities and persons.).42SeeThe Constitutional Act of the Constitutional Court of the Republic of Croatia, art. 31, No. 49/02 (Croatia,

2002) ((1) The decisions and the rulings of the Constitutional Court are obligatory and every individual or legalperson shall obey them; (2) All bodies of the central government and the local and regional self-government shall,

within their constitutional and legal jurisdiction, execute the decisions and the rulings of the Constitutional Court.).

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operation. Provisions addressing the courts structure include specific procedures for the

appointment, number, qualifications and removal of judges, and oversight of the high court.

States may provide for the composition of the high court either in the constitution or

domestic legislation. In cases where the states constitution defines the composition of the court

in general terms, legislation often fills in gaps or provides specific details. Some states definethe composition of the high court solely in legislation.

Judges

In establishing a high court it is necessary to define the selection process for judges and

how to remove a justice prior to the conclusion of their term if necessary. The process forselecting and appointing judges is often of constitutional significance and the choice of judges

can make a significant difference in the area of constitutional review. Independent judges are

better positioned to protect core constitutional values and principles.

Appointment

Most states set forth the procedures for appointing judges to the high court in theirlegislation. In Slovenia, the Law on Judicial Service provides that judges of the Constitutional

Court shall be elected by the National Assembly.43

Some states, such as Hungary, however, set

forth their appointment procedures in their constitution.44

Qualification

The majority of states include qualifications for the high courts judges in their

legislation. States such as Liechtenstein45

provide for the qualifications of high court judges inlegislation. Finlands legislation requires that justices are persons of high intellectual integrity

and qualified in law, and who have skill and experience from service in the judiciary.46

Other states, however, provide for the qualification of their judges in their constitutions.

According to the Afghanistan constitution, members of the Afghan Supreme Court should have

higher education in law or in Islamic jurisprudence, and should have enough expertise and

experience in the judicial system of Afghanistan.47

In South Africa, the constitution provides

43Supreme Court of the Republic of Slovenia (Judges of the Constitutional Court shall be elected by the National

Assembly in a secret ballot by a majority of all deputies.).44Hungarian Constitutional Court, About the Court, http://www.mkab.hu/en/enpage1.htm (last visited on Jan. 20,

2007) (declaring that Constitutional Court judges shall be elected by a two-thirds majority of Parliament).45Constitutional Court Act - Law of 27 November 2003 on the Constitutional Courtart. 5 (Liechtenstein, 2003),

available athttp://codices.coe.int/ (last visited Feb. 21, 2007) (Citizens of the Republic of Liechtenstein who havean impeccable reputation, who are trained in law, and who have served, for at least 10 years, in the legal profession

or in an area of education related to his or her qualifications as a lawyer, shall be eligible for appointment to

Constitutional Court judge).46Supreme Court Actart. 2 (Finland, 1974) (requiring that justices be persons who are of high intellectual integrity

and qualified in law, and who have skill and experience from service in the judiciary.).47 AFGHAN CONST. art. 118 (2004) (unofficial English translation), available at

http://www.af/resources/aaca/constitution/FinalDraftConstitutionEnglish.pdf (last visited Oct. 3, 2006).

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for experience quotas for certain judges.48

The Armenian constitution also limits the

involvement of judges in certain political and professional activities.49

Number

States specify the number of active judges on the high court in either the constitution orin legislation. For example, in Armenia,50

and France51

legislation determines the number of

judges on the court. By contrast, South Africa,52

Bosnia Herzegovina,53

and East Timor54

make

that determination in their constitution.

Term and Removal

The length of a justices term and the procedures for removing a justice prior to the

expiration of that term may be found in either the states constitution or their legislation.

Spain,55

Latvia,56

and South Korea57

all include term and removal provisions in their legislation,while Malta,

58Portugal,

59and South Africa

60include similar provisions in their constitutions.

48 SOUTH AFRICA CONST. art. 174(5) (1996) ([A]t least four members of the Constitutional Court must be persons

who were judges at the time they were appointed to the Constitutional Court).49

ARMENIA CONST. art. 98 (1995) (Judges and members of the Constitutional Court may not hold any other publicoffice, nor engage in any other paid occupation, except for scientific, educational and creative work. Judges and

members of the Constitutional Court may not be members of any political party nor engage in any politicalactivity.).50Law of the Republic of Armenia on the Constitutional Courtch.1, art. 1 (Armenia, 1997), available at

http://www.concourt.am/hr/armenia/arm/ccourt/lcc2e.htm (last visited Feb. 21, 2007) (establishing Armenias

Constitutional Court has nine members).51Institutional Act on the Constitutional Councilart. 1(1) (France, 1958) (establishing Frances Constitutional

Council has nine members).52 SOUTH AFRICA CONST.art. 176 (1996) (establishing the South African Constitutional Court has 12 members).53 BOSNIA AND HERZEGOVINA CONST.art. VI(1)(a) (1995), available athttp://www.oefre.unibe.ch/law/icl/bk00000_.html (last visited Feb. 21, 2007) (providing that the House ofRepresentatives of the Federation chooses four Justices, the Assembly of the Republika Srpska chooses two, and the

President of the European Court of Human Rights is entrusted with the choice of the remaining three of the nine

member high court).54 EAST TIMORCONST. art. 125(2) (2002), available athttp://www.constitution.org/cons/east_timor/constitution-

eng.htm (last visited Feb. 21, 2007) (providing for provides for one Justice to be elected by parliament, and all

others to be selected by a council comprised of representatives of the office of the president, the parliament, and the

judicial profession)55Organic Law No. 2/1979 on the Constitutional Courtart. 22 (Spain, 1979) (The following shall be grounds for

dismissal of Judges of the Constitutional Court: firstly, resignation accepted by the President of the Court; secondly,

expiry of their term of office; thirdly, existence of any of the grounds of disability applicable to members of the

Judiciary; fourthly, any incompatibility that may arise; fifthly, failure to perform the duties of their office with the

requisite diligence; sixthly, failure to maintain the reserve pertaining to their office; seventhly, being foundresponsible for fraud in civil proceedings or being convicted of a willful wrong or of seriously negligent crime.).56Law on the Constitutional Courtart. 7.1 (Latvia, 1996), available athttp://codices.coe.int/ (last visited Feb. 21,2007) (The term of office of a justice of the Constitutional Court shall be ten years as of the day when he/she took

up his/her duties of office pursuant to Article 5 of this Law.).57Constitutional Court Actart. 7 (South Korea, 2005), available at

http://www.ccourt.go.kr/home/english/welcome02.jsp (last visited Mar. 7, 2007) ((1) The term of Justices shall be

six years and may be renewed. (2) The retirement age of a Justice shall be sixty-five: Provided, That the retirementage of the President of the Constitutional Court shall be seventy.).58 MALTA CONST. sec. 97 (1964).

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Article 92(2) of the Iraqi Constitution describes the judges of the Federal Supreme Court:

The Federal Supreme Court shall be made up of a number of judges, experts inIslamic jurisprudence, and legal scholars, whose number, [and] the method of

their selection...shall be determined by a law enacted by a two-thirds majority ofthe members of the Council of Representatives.

This article leaves the appointment and number of justices to legislation, which isconsistent with international state practice.

61Though it is silent on the term or removal

provisions for those justices, it is also consistent with international state practice to address these

elements in legislation.62

With respect to the qualifications of the judges, however, ambiguities exist that may

result in the Council of Representatives interpreting this Article as requiring a Federal SupremeCourt judge to be: (1) a judge, andan expert in Islamic jurisprudence, anda legal scholar or (2) a

judge, oran expert in Islamic jurisprudence, ora legal scholar. The interpretation of thisprovision may affect the composition of the Court as the former interpretation is much stricter

than the latter.

Judicial Council

Many states utilize a judicial council, which may have a role in the administration of the

judiciary, selection of judges and general oversight. The structure of the judicial council may be

significant in ensuring judicial independence.

States almost always provide for oversight of the high court in their constitution.Constitutions may outline the composition of the judicial council and the selection of its

members, specifying who is eligible to serve on the council (judges, representatives of other

branches of the government, members of professional associations, academics), the number ofmembers on the council, and the length of years served on the council. Constitutions also may

include specific roles and duties of the judicial council, such as oversight of the judiciarys

budget, administration of the judiciary, selection of lower court judges, and training and

policymaking.

The Albanian constitution addresses the oversight roles of the Albanian High Council of

59

PORTUGAL CONST. art. 222.3 (1976) (Judges of the Constitutional Court hold office for 9 years, non-renewable.).60 South Africa Const. art. 177 (1996).61Supreme Court of the Republic of Slovenia, http://www.sodisce.si/eng/default.asp?id=1234 (last visited Feb. 21,

2007) (Judges of the Constitutional Court shall be elected by the National Assembly in a secret ballot by a majority

of all deputies.);Institutional Act on the Constitutional Councilart. 1(1) (France, 1958), available at

http://codices.coe.int/ (last visited Feb. 21, 2007) (establishing Frances Constitutional Council has nine members).62Organic Law No. 2/1979 on the Constitutional Courtart. 22 (Spain, 1979);Law on the Constitutional Courtart.

7.1 (Latvia, 1996) (The term of office of a justice of the Constitutional Court shall be ten years as of the day when

he/she took up his/her duties of office pursuant to Article 5 of this Law.).

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promote consistency in the Courts daily activities and strengthen the perception of the Court as

an efficient institution. The administration of the high court is also an important element inpotentially asserting judicial independence and assuring compliance with the rule of law. While

the procedures for states high courts vary greatly from state to state, most states set forth the

administrative procedures of the high court in legislation.

When administrative procedure are found in the constitution, they are typically the broad

or general procedures of the high court, leaving the more detailed, specific procedures of the

high court for legislation. Such procedures include those concerning the initiation of claims, theselection of claims, transparency requirements, the location of the court, and other general

administrative procedures.

Claims

How a high court addresses the claims for which it has jurisdiction is usually set forth inthe states legislation. Elements to consider are how a claim may be initiated, who has the

standing to bring a claim, and whether the high court may dismiss or refuse to consider a claim.

Initiation, Standing & Selection

Usually, a states legislation specifies the procedure for initiation of claims before the

high court and who may bring a claim. For example, in Slovenia, legislation allows one-third ofits members of the National Assembly to initiate a review of a law by its Constitutional Court.

66

In Algeria, only the President can call upon the Constitutional court to decide a case67

while

Canadian legislation permits broad access to the Supreme Court.68

Some states locate this authority, however, in their constitution. For example, theconstitutions of Spain and South Africa provide forprivate-party access to initiate claims in the

Constitutional Court.69 The French,70 Armenian,71 Bulgarian,72 Lithuanian,73 and Slovakian74

66Law on the Constitutional Courtart. 23 (Slovenia, 1994) (allowing the National Assembly, at least one-third of

the members of the National Assembly, the National Council, the government, a court of law, the state prosecutor,the Bank of Slovenia, the Auditor general, human rights ombudsman, representative bodies of local communities,

and representatives of state-wide trade unions standing to initiate constitutional review of a law).67Regulations Setting the Functioning Rules of the Constitutional Councilart. 9 (Algeria, 2000), available at

http://www.conseil-constitutionnel.dz/indexAng.htm (last visited Mar. 8, 2007) (The Constitutional Council iscalled upon through a letter sent to its President in accordance with the provisions of Art. 165 and 166 of the

Constitution. The letter of referral shall be accompanied by the text submitted to the Constitutional Council for

opinion or decision.).68Supreme Court Act(Canada, 1985), available athttp://laws.justice.gc.ca/en/S-26/text.html (last visited Mar. 9,

2007) (Proceedings on an appeal shall... be in conformity with any order made, on application by a party to theappeal, by the Chief Justice or, in the absence of the Chief Justice, by the senior puisne judge present.).69 SPAIN CONST. Part IX, Sec. 159 & 161 (1978), available athttp://www.oefre.unibe.ch/law/icl/sp00000_.html (lastvisited Feb. 21, 2007)(allowing individuals to lodge a direct complaint to the Constitutional Court when an

individual has been discriminated against on account of birth, race, sex, religion, opinion or any other personal or

social condition or circumstance, or in situations allowed by law);see also SOUTH AFRICA CONST. ch. 8, art. 167

(1996) ( allowing individuals to bring cases to the Constitutional Court when it is in the interest of justice and with

leave of the Constitutional Court, which has been instrumental in upholding minority protections.).70 FRANCE CONST. art. 61 (1958), available athttp://www.oefre.unibe.ch/law/icl/fr00000_.html (last visited Feb. 21,

2007) (allowing the President of the Republic, Prime Minister, President of the National Assembly, and President of

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constitutions all allow certain percentages of elected officials to request a review of a law by the

states high court. In Morocco, the constitution limits the High Court of Justice to reviewingonly those indictments referred to it by a two thirds majority of both Houses of government.

75

How the high court determines if it will decide a complaint is typically set forth in

legislation. For example, Slovenia and South Korea use a legislatively provided for panelsystem.76

Likewise, in Albania, legislation permits the president of the Constitutional Court to

assign judges to conduct a preliminary review of each case, after which the entire court then

decides whether or not to initiate proceedings.77

Bulgarian legislation simply states that only theConstitutional Court itself may decide whether it has the competence to hear a claim.

78

The Iraq Constitution is silent on the procedures for bringing a claim before the SupremeCourt. Setting forth these procedures in legislation is consistent with international state practice.

Transparency, Location & Administrative Procedures

Most states include a provision emphasizing the transparency and public nature of theirhigh courts in their legislation. Albanian legislation sets forth the openness of all Court

meetings, but provides the judges the power to close meetings under certain circumstances.79

InLithuania, legislation sets forth detailed openness requirements and procedures for the closure of

meetings or the removal of persons from the Court.80

In Slovakia, legislation provides that the

the Senate and sixty members of either the National Assembly or Senate standing to initiate constitutional review of

a law).71 ARMENIA CONST. art. 101 (1995) (allowing the President and at least one-third of the members of parliament

standing to initiate constitutional review of a law).72 BULGARIA CONST. art. 150 (1991) (allowing one-fifth of all Members of the National Assembly, the President, the

Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, or the Chief Prosecutorstanding to initiate constitutional review of a law).73 LITHUANIAN CONST.art.106(1992),available athttp://www.oefre.unibe.ch/law/icl/lh00000_.html (last visited

Feb. 21, 2007).74 SLOVAKIA CONST. art. 130 (1992) (allowing one-fifth of the members of parliament, the President, theGovernment of Slovak Republic and the general prosecutor standing to initiate constitutional review of a law).75 MOROCCO CONST.arts. 89-90 (1996), available athttp://www.oefre.unibe.ch/law/icl/mo00000_.html (last visited

Feb. 21, 2007).76

Constitutional Court Actart. 72(1) (South Korea, 1988) (The President of the Constitutional Court may establishthe Panels each of which consists of three Justices of the Constitutional Court and have a Panel take prior review of

a constitutional complaint);Law on the Constitutional Courtart. 54(1) (Slovenia, 1994) (A decision on whether to

accept a constitutional complaint and begin proceedings shall be brought by the Constitutional Court in a senate of

three judges at an in camera session).77

Law No. 8577 of 10 February 2000 on the Organization and Functioning of the Constitutional Court of theRepublic of Albania art. 31 (Albania, 2000), availableathttp://www.codices.coe.int (last visited Feb. 21, 2007).78Constitutional Court Actart. 13 (Bulgaria, 1991), available athttp://codices.coe.int/ (last visited Feb. 21, 2007)(The Constitutional Court itself shall decide whether an issue addressed to it is within its competence.).79Law No. 8577 of 10 February 2000 on the Organization and Functioning of the Constitutional Court of the

Republic of Albania art. 21 (Albania, 2000) (1. Cases are heard at the Constitutional Court in open plenary

sessions. 2. The Constitutional Court may bar the public from attending all or part of a session, in order to protect

public morals, public order, national security and the right to private life or personal rights.).80Law on the Constitutional Court of the Republic of Lithuania art. 18 (Lithuania, 1993), available at

http://www.codices.coe.int (last visited Feb. 21, 2007).

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Constitutional Court will hear cases in private unless otherwise decided by the court.81

Likewise, in South Korea, legislation allows the pronouncement of final decision by SouthKoreas court to be held in public, but restricts the oral arguments and deliberation to private

sessions.82

Many states chose to include in their legislation a provision specifying the physicallocation of their high court. Portugal83

and Slovakia84

both include such a provision in their

legislation.

States typically address in legislation the detailed administrative procedures of the high

court. Such administrative procedures include oaths of office,85

appointment of judges to

hierarchic positions,86

and the number of judges required to hear a claim.87

The Iraq constitution is silent on the transparency, location and other administrative

procedures of the Supreme Court. Addressing these provision in legislation is consistent withinternational state practice.

Conclusion

In almost all states, the authority for the highest court in the state, whether it be a

Supreme or Constitutional Court, or some combination of both, is derived from a variety of

sources, primarily the states Constitution, and domestic legislation. Fundamental principles andfunctions of the high court, such as the courts powers and function, independence, and authority

are typically found in the States constitution, while more specific elements of the high court

such as its structure and administration are typically left to legislation. Multiple instances ofstate practice support these general trends.

81Act on the Organization of the Constitutional Court of the Slovak Republic art. 30 (Slovakia, 1993), available at

http://www.codices.coe.int (last visited Feb. 21, 2007) (requiring proceedings to be public unless otherwise decided

by the Constitutional Court);Law on the Constitutional Courtart. 38 (Slovenia, 1994) (requiring the court to

explicitly decide to exclude the public from a hearing).82Constitutional Court Actart. 34 (South Korea, 1988).83

Law on the Constitutional Courtart. 1 (Portugal, 1982), available athttp://codices.coe.int/ (last visited Mar. 7,2007) ([T]he head office of the court is in Lisbon.).84Slovakia Constitutional Court Actart. 1 (Slovakia, 1993) (The seat of the Constitutional Court is Koice.).85 Id., arts. 11-14 (Slovakia, 1993);Institutional Act of the Constitutional Councilart. 1 (France, 1958).86See Slovakia Constitutional Court Actart. 7 (Slovakia, 1993) (establishing the president and vice-president of the

Constitutional Court are appointed by the states president);Law on the Constitutional Courtart. 10 (Slovenia,

1994) (establishing the president of Slovenias Constitutional Court is elected by secret ballot by the members of the

Court itself for a term of three years).87Law on the Constitutional Courtart. 35, 41 (Slovenia, 1994) (providing that only a majority of the judges have to

be present in order to hear a case, but all of the judges must take part in the final decision.).

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