Do We Need Laws and Lawyers in Kurdistan?

scales of justice

By Jegr Nathim:

“Congratulations on an outstanding result”, said the gracious lady from the assessment and awards unit at the University of South Wales in the UK. “You will be awarded the Clark’s legal prize for the best performing LLM student!” she continued as she handed me out my Masters in Law certificate. But contrary to my wife’s expectation and hope, this piece of good news put me not in a partying but a contemplative mood. Ever since I started my post-graduate course, and even during my undergraduate days at the Salahaddin University’s college of law, where they taught us for four years how not to think, a nagging question has continued to haunt me as to whether, in Kurdistan, laws really are necessary. This question may seem to you, dear reader, to be a quite foolish one! For doesn’t history tell us that absent the rule of law in a society, chaos ensues and men return to the state of nature in which life, Hobbes assures us, is “poor, solitary, nasty, brutish and short”? I will argue in this piece that Kurdistan is on the precipice of descending into such a condition and that, in my humble but seriously studied view, no current party leader among those in opposition or in government has the desire, the capability or the strength to introduce the serious reforms that are needed.

Since I don’t wish to be thought of as another doomsday prophet, I will explain the reasons why I have reached such a conclusion. One can safely name last year as the year of blatant disregard of the rule of law and the principle of separation of powers, the year in which judicial authority was violently trampled upon and every principle of democracy was scornfully made to kowtow to brute force, the year that saw the death of the dream of a peaceful transfer of power and the year that witnessed  the destruction of the hope of change in the heart of this young generation in Kurdistan. Most people hold the KDP responsible for these unfortunate events, but although I am not trying to absolve them of their guilt, I nevertheless mainly blame the tribal, anti-systematization, anti rule of law mentality that permeates the thinking of all the political party leaders for every single one of our miseries. Let me give an example to clarify what I mean. Back in the good old days when the KDP in its infinite wisdom still believed in exchanging words not bullets with its opponents, and in a press conference with the KDP’s politburo chief Fadhil Merani, Nawshirwan Mustafa, our curious combination of Sheikh Mahmud, Lenin and Obama, the man on whom the youth of this country pinned their hopes of change, when talking about the contentious issue of the  region’s presidency, said: ” This matter will be agreed upon by us in the leadership of political parties and then it will be sent to parliament to be made into law.” So, according to this statement, this is how we should define legislation: an agreement between  the politburo of the parties or their equivalents on a matter of concern and interest to the political elite which is codified into law by the legislature.

This definition is deeply problematic as it renders the parliament into a useless superficial body which primarily serves at the pleasure of the party leaders and they can get rid of it when they perceive its functions to endanger their and their clan’s interests, as the KDP did when it prevented the speaker of the parliament from entering the capital. I don’t have the slightest amount of doubt that, had the roles been reversed, the PUK and Gorran, their empty rhetoric notwithstanding, would have behaved  in the same way as the KDP because the same type of thinking governs all the actions of their leaders.

In its servile stance towards the political parties, the legislature in Kurdistan enacts three categories of laws. The first type is that which seeks to codify in legal jargon the political and economic power-sharing arrangements between the party politburos and, in the case of Gorran, its national assembly. This category of laws is quite superfluous since these agreements will be implemented as long as there is a binding determination and an enduring interest of the political elite in implementing them, regardless of the existence of a legislating body or lack thereof. Once these interests cease to matter, the agreements and the laws codifying them become null and void.

The second kind of legislation is that which is value-neutral  in terms of protecting an interest of the political elite. These laws will not be enforced, even if they are enacted to preserve the basic rights of the majority or a marginalized group of the people, since they serve no interest of the strong. One wonders what is the use of such laws and why not think of the environment before printing them? An example of this category is Kurdistan’s disability rights law.

The final group of laws are those which are applied if the subject is a helpless commoner and disapplied when the guilty is a royal. This situation has led to a joke among my lawyer colleagues: that the strong don’t go to the courts of law but to the courts of the royal families. One benefit of these legislations to the clan-chiefs is that they help in keeping the masses in check. For instance, if you are a witness to some of their ill-gotten gains and you want to expose their corruption, they will find in their arsenal of legal tricks a basis for putting you behind bars, for instance by accusing you of, say, carrying unlicensed weapons, as in the case of Said Akram, and if you are a killer of Sardasht Osman or Sorani Mama Hama or Kawa Garmiani, you need not concern yourself with penal laws as all the judges know better than to sentence you! Since we inherited this final category of laws from Iraq’s federal government, we don’t need our parliament to issue them as well.

Now that I have established beyond any reasonable doubt and to the detriment of my profession that laws are quite unnecessary in Kurdistan, a question begs to be answered. In this economic situation that the region is going through, which the word depression doesn’t do full justice to, why we should pay such hefty salaries to a group of rhetorician primates whose only business is to burnish their images on the TV-screens and produce destructive sound-bites that are the epitome of stupidity and recklessness to represent us in a congenitally paralyzed parliament?

Another issue I take with Mr. Nawshirwan’s statement goes back to the foundational appeal of the Gorran movement.  It was exactly against such backroom and shady deals of the KDP and PUK leadership, the embodiment of which was the famous and infamous strategic agreement, that the majority if not all of the Gorran members joined his movement and, in my view, the aforementioned statement, to say the least, is a betrayal of their dreams of changing the status quo.

Next Tuesday will be my first day in my once dream-job of teaching law at one of the private universities in Hawler. Many a time I thought about this day and imagined myself standing on the lectern in front of a group of law students. I had vowed that, no matter what subject is allocated to me to teach, I will devote my first three lectures to talk about the philosophy of law. To stimulate their thinking, I always told myself, I will start a dialog with them on Plato’s Socrates’ several definitions of justice given in The Republic, ponder Aristotle’s three categories of justice, discuss the relevance of Thomas Aquinas’s principles of natural law, put Bentham’s utilitarianism and John Rawls’s veil of ignorance to the test with them. But I will break my promise and tell them the tragic story of my family instead, to illustrate to them how unfortunate a decision they have made by choosing to study law.

Back in 2004, Zedan Zrary, a scion of the tribe’s leading family, committed  the then unpardonable sin of joining the PUK in a KDP-dominated area. All hell broke loose when he, at the head of a delegation of some elders of the tribe, visited and were received by the Patriotic Union’s leader Jalal Talabani. in a frenzy of activities, the purpose of which was damage-control, the KDP sent several emissaries to urge Mr. Zedan to return to the Party’s beneficent tent. The KDP’s strategists seemed to have reasoned that if such prominent tribal men  from its controlled zone joined its perennial opponent, the PUK, their grip on power in these  areas would gradually fade away. After these approaches failed to convince my stubborn cousin, the KDP higher-ups decided that our region should be honored by a visit by Mr. Sidad Barzani, a brother and one of the closest, if not the only, confidant of Masud Barzani, the president of the Kurdistan Democratic Party, to put further pressure on the majority of the Zrary tribe and my family to persuade the rebellious Zedan to rejoin the KDP. During the high profile, carefully choreographed three day tour of Mr. Sidad Barzani, a multitude of delegations, with their promises ranging from a seat in the parliament to several general directorships of ministries, descended on Zedan’s house beseeching him to rethink his decision and receive Mullah Mustafa’s son with a pledge of allegiance to the KDP. However, he once again refused to budge. Thus ended the visit which left us children stuffed with candies but was eventually to lead to the orphanage of many of the children of my tribe.

Zedan Zrary,

Zedan Zrary

Five years later a dispute arose between Zedan and Tariq Hamza Sewe, a scion of another family from my clan. The subject of the disagreement was a piece of land which neither of them owned but both wanted to cultivate. Having not been able to reach an agreement and not trusting what he called “the biased KDP Courts” to adjudicate fairly between them, Zedan slapped Tariq, who is a son of a well-known KDP martyr, on the face and left him bloody and bruised. All the peace-making efforts between the two families produced no solutions and Tariq filed a suit in the court. Zedan rejected my request for him to surrender to the police and in a heated argument told me (who had become his English teacher and constant companion when he was trying to obtain a Master’s degree in law at Coia University) that, “The KDP wants my head and this is just a ploy to put me behind bars and humiliate me because I have challenged their authority and it has nothing to do with Tariq. Otherwise why they don’t let him make peace with me?” Zedan did agree to be jailed for the assault, according to article 413 of the iraqi penal law, but he feared for his life if he were jailed in Erbil and proposed instead to be imprisoned either in Sulaimania or Koia; but the KDP authorities wouldn’t agree to this.

Being a deputy at the PUK’s Bahrka district organization center, he left for the PUK-dominated Zone and, as a gesture of goodwill, both of his eldest sons surrendered themselves to the police force. Kosrat Rasul Ali, on behalf of the PUK leadership, told him in no uncertain terms that the PUK didn’t want to endanger its strategic agreement with the KDP, especially now that Gorran had splintered its unity and undermined the PUK’s status vis-à-vis the KDP. Putting his trembling hands on my shoulders and his, Kosrat asked Zedan to make peace with Tariq and promised his help in that regard. Feeling let down by the PUK, Zedan, with the help of some elders of the Zrary tribe, asked Nihad Barzani, another of Masud Barzani’s brothers to mediate between the two families. After receiving Nihad’s personal assurance that he would make peace between them, Zedan returned to Hawler. A few days later, on the evening of September second, 2010,  Zedan was killed cold-bloodedly by Tariq’s family at his home. A KDP leadership council member who is particularly close to the Barzani family told me on the pain of death and on the strictest condition of anonymity that “finding the perfect pretext to get rid of Zedan and being motivated by revenge for what he considered to be Zedan’s insolence towards him when he refused to rejoin the KDP, Sidad arranged with Nihad to lure him back to Hawler and ordered Tariq to kill him and promised Tariq his full financial support and physical protection.” The events of this sad day appeared to confirm the accuracy of my source’s account for, to the astonishment of the inhabitants of Khalwan village where Zedan was killed, less than 20 minutes after the assassination, Tariq’s home in their neighboring village became heavily fortified and surrounded by Zeravani forces who officially were there to prevent further bloodshed, but it was clear to everyone that they were protecting only one side. Masud Barzani made a phone call to the head of the tribe promising that he would personally take care to see that justice should be served in this case. However, like all his promises  of reform, the implementation of which is wholly dependent on the goodwill of his immediate family, this one didn’t fare any better. Barham Salih, the then prime minister paid a visit to the crime scene accompanied by the interior minister Karim Sinjari and he liberally dumped all his empty liberal rhetoric about the rule of law on us poor villagers but the “smartest man in southwest Asia”, as he was characterized by Michael Hayden the former CIA director in his recent memoir, deemed it smart to back off in the face of KDP pressure and told a PUK politburo member that he couldn’t do anything! In this, unfortunately, he was not alone. A judge who was reviewing the criminal case against Tariq also told Zedan’s family that he had received a call from the president’s office ordering him not to issue any verdict as the president himself would deal with the case and make peace between the two families. So much then for the judiciary which is tasked with taking the oil lords to task!

Disappointed by the obstruction of justice by the KDP, Zedan’s family took the matters into their own hands and killed Tariq’s elder brother and for almost 6 years the ancient law of lex talionis (an eye for an eye ) reigned supreme between the two families. The final tally of this tragedy was 9 people killed, among them a Zeravani force member who was protecting Tariq’s son, who also became a victim, and several injured. Each time someone perished, I would call my source to ask him whether enough is not enough and is it not time to resolve this senselessness once and for all? And he would answer ‘no’ as the higher-ups wish to teach those who dare to challenge their dominance a lesson that this is a penalty for straying from the right path and keep them dependent on the KDP! Thus the KDP, taking a strategy from the Baath party’s playbook, pitted these families against each other while the PUK stood by as an uninterested observer. It seemed that the Barzani family became convinced that we, idiots as we are, nevertheless finally got the lesson and on the fifth of January 2016, with much pomp and ceremony befitting such occasions and in the headquarters of its august leadership council and, most importantly, under the auspices of none other than Mr. Sidad Barzani, who had explicitly ordered that no PUK leader should be allowed to participate, and with Nihad Barzani in attendance, the two families made peace and (“Blessed are the peacemakers: for they shall be called the children of God!”) of course no one was sentenced or arrested other than for a short time. Nor will the real culprits ever be tried in a court of law. This tragedy shows, my dear students, that ours is not a country of Laws but a country of men. Therefore rise up with me to bulldoze our colleges of Laws and our so-called courts because they are completely futile.

Jegr Nathim:  Born in 1988 and living in Hawler, he graduated from Salahaddin University’s law college (“where they taught us for four years how not to think!”) and has since got a Masters degree in law. Occasionally he writes book reviews for ‘Lvin’ and articles for ‘Awene’.

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