Fariba Nawa – AUTHOR AND JOURNALIST

By Fariba Nawa
July 17, 2003
Mother Jones

Clerical Shiite judges have stepped into the power vacuum in Baghdad. What will the new face of justice be in Iraq?

Tucked away in an alley in the shadow of a centuries-old shrine in one of Baghdad’s Shiite neighborhoods, Sheikh Ra’id Saadi is performing an act for which he might have been executed three months ago.

The long-bearded, turbaned cleric is holding court, playing judge, jury and prosecutor with the Koran and Hadith as his law books. He resolves family and land disputes, marries couples, and if obliged, punishes criminals in the rare comfort of an air-conditioned room.

The US authorities here have promised to rebuild Iraq’s judiciary system, crippled by decades of corruption and long dominated by those loyal to Saddam Hussein. But Baghdad’s courts remain shuttered, and American officials say it will be months before they are open again. Throughout the capital, small Islamic courts like this one are filling the judicial vacuum. “The entire administrative system is in our hands now. I deal with 100 cases at a time. Even the Sunnis come to us for rulings,” Saadi says. “The Americans don’t have the authority to enter this courtroom. I’m the one in charge.” What remains to be seen is whether Saadi’s authority will last.

Like everything else in Iraq these days, the judicial system is a work in progress, and nobody can quite agree on what the end result should be. Several prominent Shiite politicians have insisted that Sharia, or Islamic law, should form the foundation for both the government and the courts. Other factions, including the country’s top Shiite clerics, envision a system blending Islamic and secular laws, but keeping religion and government separate.

The answer, of course, will be dictated by what US authorities are willing to accept. But while officials in Washington have insisted they will not accept an Islamic state like that in neighboring Iran, US officials in Baghdad are turning a blind eye to the proliferation of Sharia courts in the city. In fact, US officials don’t even want to talk about the issue — repeated requests for comment were declined.

SECULAR COMPLAINTS, CLERICAL JUDGMENT

One day last month, about 20 men crowded into Saadi’s makeshift courtroom, defendants and plaintiffs sitting across from each other on black wooden benches covered by green cloth. Saadi, in starched white tunic and clog shoes, sits between the two groups, writing out his rulings on a red plastic stool cluttered with papers.

The dispute is over land. The plaintiffs claim the defendants have illegally taken over 650,000 square meters of property. They claim that Saddam Hussein’s infamous chief bodyguard, Abd Homoud, forced them off the land. Now that Homoud is gone, they want the land back. “There was a fish lake there and we had plants and date trees that were planted by my grandfather,” one of the plaintiffs says. The defendants, in turn, insist the land is theirs, that they bought it from another family, not the hated Abd Homoud.

Soon, all the men are on their feet, screaming objections and pointing fingers. They all speak at the same time; one of the plaintiffs flashes a large, yellowed, torn paper, claiming it is a family map of the disputed land. Then, one of the defendants makes an accusation that inflames the already heated argument.

“They went to the Americans to ask for help,” the man claims.

“We certainly did not. We’re Muslims and we will solve this through Islam. We would never go to the occupiers,” Jasim Jaber Shaheen, one of the plaintiffs, fires back As emotions rise, it becomes clear that while the American officials aren’t welcome in Saadi’s court, the occupiers are still a constant presence.

Saadi threatens to kick the men out of his court. Then, someone in the crowded room begins reciting a prayer. Each of the defendants and plaintiffs take up the verse, and the room becomes calm once more.

Eventually, Saadi calls for an investigation into the issue. He tells the defendants and plaintiffs to accompany the court investigators as they tour the property, and instructs the men that they must produce witnesses to support their claims. The courtroom clears, the mollified adversaries going their separate ways.

CIVIL LAW, ISLAMIC INFLUENCE

Like every other Islamic judge in Iraq, Saadi is following the direction of the Hawza, the powerful religious school and center of Shiite learning located in the southern Iraqi city of Najaf. The spiritual leader of the Hawza, Grand Ayatollah Ali al-Sistani, has declared that politics and religion should remain separate in Iraq, because politics corrupts religion. Not that al-Sistani wants to see Islam banished from Iraq’s courts altogether. Islamic law has always been incorporated into the country’s legal system. Even during Saddam Hussein’s rule, while clerical courts like Saadi’s were outlawed, civil laws remained rooted in Islamic teachings.

The justice system being haltingly rebuilt in Najaf, the holiest city for the world’s 110 or 120 million Shiites, reflects that approach, with judges using a blend of Islamic and secular law. It also reflects the influence of the Americans now running Iraq, and the lasting impact of Saddam Hussein.

Like Saadi, the judges in Najaf insist they are the ultimate legal authority in their courthouse. But, unlike in Baghdad, the Americans in Najaf are directly involved in the city’s courts. As in every other Iraqi city, American officials have insisted that civil institutions in Najaf undergo a process of “de-Baathification” — the term coined by American administrator L. Paul Bremer for ousting members of Saddam Hussein’s Baath Party establishment. But how do you wipe away the influence of three decades of Baathist rule? After a vote by courthouse staff — monitored by a US legal team — 50 of the 200 judges in Najaf lost their jobs. That purge evidently satisfied the US overseers. While the remaining judges had all practiced during Saddam’s rule, the courthouse was allowed to reopen.

The US contingent in Najaf is settled a few miles from the city’s center, on the grounds of what was to be a university. Civil affairs officers Capt. Jim Rondeau and Sgt. Holly Malueg explain they are in Najaf to help the city’s residents rebuild their lives. And, like the city’s clerics, they insist they are only providing guidance to the court’s judges. But that guidance, it is clear, sometimes take the form of orders.

“We’re insisting that they have documents before they throw someone in jail. Without documents, they were throwing 10-year-old boys in jail,” Rondeau says. “We had to release a lot of people.”

The courthouse itself is hardly grand — particularly when compared to Najaf’s most prominent landmark. Just a few miles from the two-story court is the gold-domed, shimmering mosque where Ali, the fourth and last Islamic caliph and first Shiite imam, is buried. The mosque was left untouched by the looters who rampaged through Najaf’s streets in the days after Saddam Hussein’s regime collapsed. The courthouse was not. Documents, torn from court files, litter the building’s dusty halls. The walls show charring from recent fires, and the rooms are all but bare. There is no electricity to power fans or provide light, and the temperature inside the drab building quickly becomes stifling.

Still, from 8:30 am to noon each weekday, the judges sit behind their desks, dressed in suits and ties, hearing the complaints of Najaf’s citizens. Black-clad women and men wearing long, loose shirts squat on the cement floor in the corridors, waiting their turn. Some of the men finger prayer beads as they smoke cigarettes.

Bushra Muslim told this reporter in the halls of the courthouse that seven members of her husband’s family killed her husband, daughter and sister, and then stole the family’s money. Two were caught, she says, but five have escaped.

“During Saddam’s time, those men would’ve gotten what they deserved. Now there’s no one to do anything,” she complains. It is a common grievance, but one that the judges and lawyers in Najaf’s court vigorously reject. They insist that crime is falling, and point to the new 200-cell jail, built by Americans and located next to the courthouse.

“People’s lives are getting back to normal. Marriages are rising very high, from a few a day to 20 now. And that’s a sign that people have hope in their life,” says Judge Fawad Doud al-Alousi.

But marriage laws are among the few largely untouched by the legal revolution taking place in Iraqi courts — because they fall under Islamic directives. Many other laws, particularly those adopted in the last three decades, have been called into doubt. Judges in Iraq have adopted the 1969 Iraqi constitution as their legal guide. Ra’id Johi, Najaf’s chief investigative judge, explains that the constitution, written after the 1968 Baathist coup but before Saddam seized control, melds secular and Islamic law.

These days, the vast majority of the accused brought before Johi are facing weapons or robbery charges. For the most part, the punishments are far less harsh than they were while Saddam was in power — which is good news for Ali Abd Alim Jasim.

The 33-year-old stands before Johi with one arm behind his back, refusing to meet the judge’s eyes. Iraqi police stopped Jasim at a gas station. When they searched his pickup, they found 30 AK-47 assault rifles. He tells Johi he has a license to keep the weapons.

“Your honor, I was looted many times, so I carried those for defense,” he says.

“Were you trying to free Iraq with these weapons,” Johi asks archly.

Jasim then changes his story, saying he is a member of a political organization, and that the weapons belong to that group. Johi asks if US authorities have given permission for Jasim’s organization to have weapons. Jasim says he doesn’t know. Johi scribbles something on his carbon copy papers, and sends Jasim out on the streets, free but without his guns. Under Saddam, Jasim may have received up to five years in jail. Johi gives him one year probation. Johi has given him a break.

“We’re more lenient because the circumstances are difficult now.”