Legal System of Iraq

The Federal Iraqi legal system is a civil law system on the Egyptian/French model comprising the ordinary civil, labour, personal status and criminal courts. Unlike some other countries in the region, there is no separate shari’a based system. Family law (personal status law) is administered within the ordinary court system.

Civil disputes are largely regulated by the Civil Code, Law No 40 of 1951 and where relevant the Commercial Code No. 30 of 1984 and civil procedure and evidence is regulated by the Civil Procedure and Actions Law No. 83 of 1969 as amended by the Civil Evidence Law No. 107 of Year 1979. The system is inquisitorial and judge led rather than adversarial. The Iraqi legal system does not operate a system of precedent whereby decisions of higher courts must be followed by lower courts. However higher court decisions can be given a certain amount of weight by lower courts in determining disputes before them. The appellate system for civil cases provides for an appeal from the Court of First Instance to the Court of Appeal and from there to the Court of Cassation. Some administrative decisions can be challenged before the Shura Council which is part of the Ministry of Justice – rather than being part of the federal judicial structure.

Article 2 of the Iraqi Constitution states:

“First:Islam is the official religion of the State and is a foundation source of legislation:

  1. No law may be enacted that contradicts the established provisions of Islam 
  2. No law may be enacted that contradicts the principles of democracy.

C.  No law may be enacted that contradicts the rights and basic freedoms stipulated in this Constitution.

Second:This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis, and Mandean Sabeans.”

Many resources relating to Iraqi Law can be found at http://gjpi.org a resource hosted by the University of Utah S. J. Quinney College of Law.

Adoption and kafala in Islam

Islamic law does not recognise adoption as such in that it prohibits the legal fiction that a child becomes the child of the adoptive parents. There is a specific injunction in the Qur’an which states:

…Nor has He made your adopted sons your (biological) sons.  Such is (only) your (manner of) speech by your mouths.  But Allah tells (you) the Truth, and He shows the (right) Way.  Call them by (the names of) their fathers; that is juster in the sight of Allah.  But if you know not their father’s (names, call them) your brothers in faith, or your trustees.  But there is no blame on you if you make a mistake therein.  (What counts is) the intention of your hearts.  And Allah is Oft-Returning, Most Merciful.

(Qur’an 33:4-5)

Kafala is a concept of Islamic law meaning the long term fostering of a child without the right to kinship. While kafala results in placing the child securely with a caring family, it does not allow the actual adoption of a child and a change e.g. in his/her inheritance rights. 

The English courts have dealt with kafala arrangements – in the context of Jordan (In the Matter of the Adoption Act and in the Matter of J [2002] EWHC 766 (Fam) Fam Div); and Egypt (Z (A Child) (English Adoption: Egyptian Orphan), [2016] EWHC 2963 (Fam). The European Court of Human Rights dealt with an Algerian kafala case in Harroudj v France (43631/09) and a Moroccan case in Chbibi Loudoudi v Belgium(52265/10).

UN Convention on the Rights of the Child

Most nations are signatories to the UN Convention on the Rights of the Child (CRC) which states in Article 3:

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. 

Article 20 of the CRC states:

Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 

2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 

3. Such care could include, inter alia, foster placement, kafalahof Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. 

Andrew Allen KC: Middle Eastern Law Expert Blog

This blog seeks to provide a very basic outline guide to the legal systems in what is very broadly defined as the Middle East (including North Africa, Iran, Pakistan and Afghanistan). I will start with Family Law and hope to cover other areas of law in the future. I hope that such a shared resource can provide an introduction to some of those legal systems and may point some in the direction of further study. Andrew Allen

Andrew Allen KC acts as an expert witness in Middle Eastern Law. He is based at Outer Temple Chambers, London and his work has included reports on the laws of Pakistan, Bangladesh, Sudan, Saudi Arabia, Somalia, Egypt, Lebanon, Jordan, United Arab Emirates (Dubai, Abu Dhabi, Sharjah, Ras Al Khaimah, Ajman, Fujairah and Umm Al Quwain), Syria, Algeria, Yemen, Oman, Morocco, Tunisia, Libya, Algeria, Iran and Iraq (including Kurdistan Region). Expert report subject matters include questions relating to adoption, kafala, child custody and contact, abortion, marriage, divorce and inheritance.

Andrew Allen KC was called to the bar in 1995 and was appointed as Queen’s Counsel in 2020. He holds an MA in Law from Christ’s College, Cambridge (1992); an LLM (1994) in Middle Eastern Law from the School of Oriental and African Studies, University of London; and an MSc in Sociology from Birkbeck College, University of London (2014).

Family Law in Algeria

Family law in Algeria is governed by the 1984 Family Code. The provisions of the 1984 Code are drawn from various schools of law, a draft Algerian code of Muslim law formulated by a commission in 1916 during French rule, and parallel legislation from neighbouring countries (particularly Moroccan enactments). It is primarily rooted in shari’a principles. Article 222 of the Code specifies the shari’a as the residuary source of law, thus allowing for selection of appropriate interpretations from any school of law or directly from the original sources of law (Qur’an and sunnah) or from secondary sources. Women make up 70% of the country’s lawyers and 60% of its judges.

The 1984 Code has been subject to revision, in particular in 2005. Procedure in the Family Courts is regulated by the 2009 Code of Civil and Administrative Procedure – in particular in relation to family cases in Book 2, Title 2, Chapter 1.

An unofficial translation of the Algerian Family Code provided by the British Embassy, Algiers is available at https://www.gov.uk/government/publications/algerian-family-code

The Legal System of Algeria

The Algerian legal system is based on French and Islamic law (shari’a). Algeria remained under French rule for 132 years, which constituted the longest direct European colonisation of any region in North Africa. After a brutal eight-year struggle for independence, Algeria became a sovereign state in July 1962. A civil concord in 1999 appears to have largely restored peace in Algeria following a troubled decade of struggle between the military and Islamic militants. The Berber community in Algeria won official recognition of the Berber language and other cultural demands in 2001.