The Kurdish language in the courts of the Kurdistan Region: between Law and Reality
Introduction
The law, on the one hand, is a tool for implementing and enforcing justice, both at the national and the international level. On the other hand, language is an instrument for establishing, expressing, explaining, and enforcing law, and as a result, it is an instrument for achieving justice, both at the societal and the international levels. One very important aspect of the law is that it should be understood by the general public. Hence, if the general public does not understand the text, terms, and the legal decisions, violation of the law and punishment do not have meaning. Therefore, the subject of law and the understanding of all the legal texts and terminology by the public is essential to establish justice in society.
In Iraq, Arabic is seen as the language of the law, and all legal texts are written in Arabic. The Kurdish language on the other hand is seen as a local language and it has been neglected. This is due to a few factors: one is the dominance of Arabic ever since the creation of the modern state of Iraq which favored Arabic as the language of the majority. And the fact that the Arabic language is the language of Islam (which is the religion of the majority of the citizens in the KRI). However, the establishment of the Kurdistan Region in 1992, and the recognition of the Kurdish language as an official language in Iraq according to article 4 of the 2005 constitution, marked the beginning of a new era regarding the status of the Kurdish language in Iraq and the Kurdistan Region.
One of the reasons for the existence of multiple official languages rather than a single official language is that with the evidence of each country’s linguistic diversity, societies have reached the conclusion that a common language is not a factor of national unity. Therefore, in order to lessen national conflicts, states have implemented the Policy of “Peaceful Linguistic Coexistence”. This is a policy based on three principles, which are: Equality of Official Languages, Freedom of Implementation of Languages, and the granting of more executive power to regions based on the principle of primacy. In the meantime, 55 states in the world have more than one official languages.
The Kurdish language in the Courts in the KRI
In this section, we will focus on the following topics: the importance and need to protect the Kurdish language, the use of the Kurdish language in the courts of the Kurdistan region, and the challenges facing the development of the Kurdish language in courts.
The importance and need to protect the Kurdish language
The language of any individual and nation, in addition to being a means of communication, is also a means to express the identity of said nation. Even if an individual is able to speak other languages, he constantly acquires his individual and social identity through his mother tongue. It is the language that reflects the historical events and experiences that the people have witnessed throughout history. It is clear that the preservation and development of this language will preserve the cultural and historical boundaries of this nation and will strengthen the political identity of this nation. Furthermore, language is more than a means of communication and is in fact a part of the nation’s identity and culture. When a language dies, the culture that it covers dies with it. Undoubtedly, on the individual level, language is very important for shaping an individual’s identity, and on the social level it is important for social unification. Historically, the usage of language to serve political goals started with the modern era. The major European states did not have a single unified language from the start. When Italy achieved political unity only 2% of the population spoke Italian, in Germany during the process of German unification, only 17% of the population spoke German. In France in 1790, only 10% of the population spoke standard French, and in 1873 more than a quarter of the French population could not understand standard French.
When the language, culture and history of an oppressed group of people are suppressed and neglected, members of that group feel inferior, and come to believe that they have nothing to be proud of, and thus this sense of inferiority gradually becomes the norm. As a result, member members of that group resort to cultural suicide, abandoning their native culture and language, losing their identity and history, and turn to the culture and language of the dominant group.
Today, policies for linguistic preservation have emerged, and they are being implemented in some countries around the world, as the situation in the world today is that if such policies don’t come about, many languages will disappear. The Kurdish language is not far from the danger of disappearing, hence policies to protect the language are essential. It is clear that this is not an individual task, but the powers that be must work to preserve the language and protect it with a short-term and a long-term program. Linguistic Policy is basically a design for the development of one or more languages and, as such, determines the use of languages in various fields such as teaching, administration, media, etc. Language policy is the examination of all linguistic behaviors such as assumptions, cultural patterns, popular beliefs, and attitudes towards language, etc.
The usage of the Kurdish language in the courts of KRI
Legal language is a tool for establishing communication in the field of law and ensuring the enforcement of law. Legal language is difficult to understand by people without legal expertise, to the extent that European linguists have coined the term “Legal Language”. One of the reasons for this problem is that legal language, unlike other languages, is a static language and it does not change. It is the people's right to understand legal decisions and to know whether a decision that has been made in the court is against them or in their favor. In countries that have more than one official and legal language, linguistic policies flourish more.
Creating equal status for all the official languages in a state is one of the legal issues of language policy. For example, the Canadian constitution recognizes both English and French as the country’s official languages and gives them equal rights and privileges in all government institutions.
Language is the identity of nations, and the Kurdish nation has a legitimate right to protect their language, especially the language of the law, which is the language of communication between the legislation, judiciary and executive powers with the people. The law is the highest expression of the will of the people, and the most prominent symbol of the sovereignty of the state over its territory. Therefore, the language of the law must be the language of the nation itself. Iraqi jurist and academic, Ismaat Abdul Majid says : “The proper condition of a legal officer is that the officers have the ability to understand the law. For this reason, the law should be written in the language of the country which it is enforced, so that the citizens can understand the law”.
As mentioned earlier. The judiciary Law No. 14 of 1992 in its fifth article states that the Kurdish language is the language of the courts of the Kurdistan Region and supporting this law, the Ministry of Justice by Ministerial Order No. 343 dated 3/6/2000 decided that from this date onwards, all legal affairs of the courts, from complaints to requests, minutes, judgements, and court decisions, should be translated into Kurdish. For this purpose, a committee was formed in the Ministry of Justice.
Also, Article 6 of the Judiciary Law in the Kurdistan Region No. 23 of 200, again emphasizes that Kurdish is the language of the courts. In addition, Law No. 6 of 2014 on the official languages in the Kurdistan Region of Iraq states in its 6th article that all judicial procedures will be conducted and written in the Kurdish language.
In addition, Law No. 7 of 2014 on the official languages in Iraq in Article 3 clearly states that both Arabic and Kurdish are official languages in Iraq, and the Kurdistan Region is a part of Iraq which means that no legal loopholes exist in this regard.
The Kurdish language according to the Iraqi constitution is an official language in Iraq. If Arabic is the first language in the Arab-majority regions, then Kurdish is the first language of the Kurdistan Region and should be the language of administration and governance in the region. But this constitutional right has not yet been implemented completely.
According to our investigation on the usage of Kurdish in the courts we found out that the attempt to make Kurdish the language of the courts in the provinces of Erbil, Silemani, Halabja and the administration of Garmyan and Raparrin has been moderately successful, and all petitions, writing, notices, and court transcripts are in Kurdish in all courts, only court decisions are in Arabic in most courts. However, in the province of Duhok, until now Arabic is the most used language in the courts and not much progress has been made. Regarding the decisions of the Kurdistan region's Court of Appeals, so far they are mostly in Arabic, which is contrary to Article 6 of the judiciary No. 23 of 2007 and Article 6 of the Law of official languages of the Kurdistan Region No. 6 of 2014.
In their most recent attempt to make Kurdish a legal language, the Judicial Council in the Kurdistan Region according to decision No. 67 on 26/9/2022 in order to unite the language of the courts in the Kurdistan Region decided that court decisions and all judicial proceedings in the Kurdistan Region should be written in Kurdish and only in Arabic when necessary. However, despite this decision, many court procedures and decisions especially in the province of Duhok are still in Arabic, so the judicial council should seriously investigate the results of the decision issues.
Challenges facing the development of the Kurdish language in Courts
in this section we will mention the challenges facing the Kurdish language that have prevented it from being fully established as an official language within Iraq and the Kurdistan Region:
The absence of a language policy, and the absence of strong political will from the Iraqi government and Kurdistan regional government to make Kurdish a functioning official language throughout Iraq, including the Kurdistan Region.
The lack of a standard Kurdish language due to the dominance of regional dialects, has prevented the establishment of a standard language.
The historical dominance of Arabic as the language of the Islamic religion and then as the language of the state, has caused the Arabic language to dominate and marginalize the other languages.
The outdated understanding of the Iraqi authorities who believe that the development of the Kurdish language encourages separatist movements and may be used by external forces. Therefore, they constantly try to enforce one official language, the language of the majority.
The logistical obstacles that hinder the establishment of multilingual systems in education and administration.
Globalization and the development of a global market makes it difficult for local languages to keep up with the pace of developments, which prevents speakers of these languages from using their languages to convey meanings and concepts, which in turn gradually weaken local languages.
The understanding among some jurists that Arabic is the language of the law and Kurdish cannot become the language of the law.
The small number of legal and judicial resources in Kurdish has led to lawyers to rely on Arabic sources for any legal work and research, which in turn has resulted in the gradual marginalization of the Kurdish language in the field of law in the past thirty years.
The lack of attention given by higher education institutions to conducting academic research in Kurdish has marginalized the language in this regard.
Results:
Minorities have the right to benefit from their own culture and to use their own language freely , openly, and privately, without any interference or discrimination and states have the duty to assist and support minorities in this regard and to provide them with the necessary opportunities and facilities.
The Kurdish language in Iraq and the Kurdistan region has constitutional and legal recognition, and as showcased in this paper there are no legal problems, but both governments are slow and indifferent in implementing the content of the laws.
Regarding the status of the Kurdish language in the context of the judiciary and courts of the region, according to the applicable judiciary law, Kurdish is the official language of the courts, but this text has not been fully implemented.
The Kurdistan Regional Government does not have a language policy or a clear roadmap regarding the status of the Kurdish language, and throughout its three decades of rule, has not been able to establish a standard Kurdish language throughout the Kurdistan Region.
Recommendations:
The judicial council should draw a roadmap and strategy to make all judicial procedures and decisions Kurdish in all courts and throughout the Kurdistan Region.
The Kurdistan Regional Government should formulate a language policy and a national strategy for the creation and consolidation of a standard Kurdish language.
Efforts should be made to consolidate the Kurdish language in the federal institutions of Iraq and solve the problems facing this issue.
Since Kurdish is an official language in Iraq and the Kurdistan Region, knowledge of Kurdish must be a prerequisite for the employment of those working in the judicial institutions in the Kurdistan Region.
Education in Kurdish should be promoted at all levels, without neglecting and ignoring the importance of learning other languages.
Establishment of a commission on official languages to follow up the official languages act and monitor its implementation.
The judicial council of the Kurdistan Region and the Kurdish Language Academy should coordinate to develop and unify legal terms and issue a dictionary of legal terms that will serve as a resource for the courts.
Enrichment of the Kurdish library in all fields, especially the legal field by promoting and encouraging writing, research, as well as translation of legal sources in Kurdish, so it becomes a support for researchers and scientific centers and to reward scientific writing, so it motivates and encourages more writing in Kurdish.
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Master’s in Public Law and a Judicial Investigator at the Erbil Court of Investigation
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