Interim Iraqi Constitution
January 2004 draft
Translation
and Commentary
NEW: 7 March 2004
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On 1 February 2004, the
Kuwaiti daily al-Qabas published an
Arabic-language draft of an interim Iraqi constitution. (I was referred to the publication by the website of Juan Cole, Professor of History
at the University of Michigan; Professor Cole included a commentary on some of
the articles.)
The Iraqi Governing Council
has been wrestling with constitutional issues almost since its creation (an
excellent review of the issues as of November 2003 is available from the International
Crisis Group). Initially, the
Council formed a committee to recommend mechanisms for constitution
drafting. Its report was due in
September 2003. While I do not believe
that the committee’s report has been made public, it was reportedly unable to
develop a definitive recommendation.
The work of the committee was superseded by the agreement
reached on 15 November 2003 between the Coalition Provisional Authority and
the Iraqi Governing Council. That agreement
required the Council to approve a “Transitional Administrative Law” by the end
of February 2004. Such a law would make
possible “local caucuses” by the end of May; the convening of a “Transitional
National Assembly” based on those caucuses; the dissolution of the Iraqi
Governing Council and the Coalition Provisional Authority; and the restoration
of Iraqi sovereignty by the end of June 2004.
Elections for a constituent assembly would follow in 2005, it would
quickly write and seek ratification of a permanent constitution—elections would
be held under the new constitution by the end of 2005.
The Iraqi Governing
Council did not take up the constitutional draft as a body until February 2004,
but some of its members have been active in drafting documents for the full
body to consider. The first draft seems
to have been circulated by Kurdish parties; in response, a second draft was
circulated, apparently under the sponsorship of Council member Adnan Pachachi.
The draft published by al-Qabas
is the “Pachachi draft.” It is not
the most current form—I believe that some changes have been made—but it does
seem to me to be an authentic earlier version.
Al-Qabas is not one of the more sensationalist newspapers in the
region and it is clear that some drafts of the document have been leaked to
journalists. And the al-Qabas
draft closely follows the provisions (and even the language) of the 15 November
2003 agreement between the Coalition Provisional Authority and the Iraqi
Governing Council. Nevertheless, the
version it published varied from other accounts of the document (most
particularly on the matter of representation for women and a multi-member
presidency) and some of its provisions seem incomplete. Further, the al-Qabas version is not
dated. Thus, a variety of external and
internal evidence suggests that the draft is now dated, but no later draft has
been publicly leaked.
While the Iraqi
Governing Council is considering the draft, many of the most difficult issues
(involving elections and timetables) are being debated not only within the
Council but also more widely in Iraq and internationally as well.
Thus, the document
presented here is very much a work in progress.
The interim constitution is
designed to take full effect after the expiration of the Coalition Provisional
Authority on 30 June 2004 (though some of its provisions, such as for a
transitional assembly, are to take effect before that date).
Because this is a legal
document, I have attempted to translate as literally as possible. I have also included some of my own
italicized comments on some of the articles.
Article 1. This law shall be called the “Law of
Administering the Iraqi State for the Transitional Period.” Where the expression “this law” appears in
this legislation, it shall mean the “Law of Administering the Iraqi State for
the Transitional Period.”
Article 2. This law shall be
effective in all provinces of Iraq and it may not be amended in the
transitional period.
It is odd for amendments
to be barred, and it is possible that this could lead to some
complications. The first Iraqi
constitution of 1925, for instance, required amendment shortly after
promulgation because of some oversights in the drafting process.
The ban would have the
salutary effect of directing constitutional debates toward the permanent
constitution.
Article 3. Iraq is an independent state possessing full
sovereignty. Its capital is
Baghdad. Its system is democratic,
parliamentary, pluralist, and federal.
The territory of Kurdistan shall remain in its current status in the
transitional period. The central
authority shall continue in Baghdad, exercising the following competencies:
1. Setting
foreign policy and diplomatic representation
2. Defense
affairs, including guarding the borders
3. Declaring
war and concluding peace
4. Setting
monetary policy, issuing currency, and establishing development policy
5. Establishing
standards, weights, and measures and setting general policy for wages
6. Establishing
the public budget for the state
7. Controlling
citizenship affairs.
Article 4. Islam
is the official religion and shall be considered a basic source among the
sources of legislation. This law shall
respect the Islamic identity of the majority of the Iraqi people and shall
completely guarantee freedom, practice, and rites of the other religions.
This article will undoubtedly attract great attention
because of the provisions for Islam and religious freedom. It is not clear, however, that it will have
much effect on the Iraqi constitutional and legal order. Designating Islam the official religion has
tremendous symbolic importance and is standard in Arab constitutional
documents, but the practical meaning of such a designation is probably quite limited.
The rest of the article
is characterized by more innovative wording.
It is common for Arab constitutions to declare “the principles of the
Islamic shari‘a” to be “a” or “the” principle source of legislation. Even when Egypt adopted the stronger
wording—making shari‘a the principle source—the legal effect has been limited.
First, the provision sidesteps the question of who has authority to issue
authoritative interpretations of Islamic law.
The effect is to leave it to normal legislative organs (chiefly the
parliament, but also the executive and the judiciary). Second, the provision has been interpreted
to be prospective rather than retrospective in nature; that is, it requires
that future legislative acts draw on the shari‘a but those adopted before the
promulgation of the constitution are still valid and are to be brought into
compliance with the shari‘a through the normal legislative process. As a result, the language in the Egyptian
case has had limited effect.
This article in the
Iraqi law is weaker than the Egyptian provision. It does not mention the shari‘a or its principles but only
Islam. More significantly, this is only
“a” source. Absent any structure that
has the authority to issue authoritative interpretations of Islam, the article
by itself will have little impact on the Iraqi legal order. It may, however, give significant symbolic
support to those who call for a greater measure of Islamic legal influence,
however.
In most current Arab
legal systems, Islamic law leaves the realm of the symbolic and enters the
realm of the practical in matters of personal status. All Arab countries draw from Islamic law in matters of marriage,
divorce, and inheritance, though they do so in very different ways. Nothing in this document directly mentions
personal status law, but the end of the Coalition Provisional Authority may
have an important indirect effect: in January 2004, the Governing Council
reportedly voted to repeal the relatively egalitarian Ba‘thist-era law of
personal status. Such a repeal has no
effect so long as the Coalition Provisional Authority does not endorse it. But restoration of Iraqi sovereignty might
cause the measure to take effect.
The religious freedom provisions of Article 4 are placed
on a communal rather than individual basis.
Article 5. The flag
and emblem of the state shall be defined by law.
Article 6. The
Arabic language shall be the official language in the country, while the
current special situation in the territory of Kurdistan shall be respected.
In 1970, the Iraqi government negotiated an agreement
with Kurdish leaders for regional autonomy.
Talks on implementation of that agreement broke down, however. The Iraqi government did implement the
agreement according to its interpretation, but it did so in a way that Kurdish
leaders found extremely lacking; it also put down Kurdish challenges with
tremendous brutality. In 1991,
international protection for the Kurdish areas allowed leaders to implement
their understanding of the agreement.
The result has been effective autonomy for Kurdish areas. The status (and demarcation) of Kurdish
areas in post-Ba’thist Iraq has been sharply contested. Among the issues debated has been the degree
of autonomy and the extent to which Kurdish areas are to be treated as a unit
(rather than as separate provinces). In
general, this document allows for a significant level of federalism, but only
on a provincial basis. Articles 3
and 6 depart from that pattern,
however, by treating Kurdistan as a unit.
Article 6 does so for language policy; Article 3 provides for the
continuation of current arrangements (which allow for very significant
autonomy) in the transitional period.
Article 7. The people are the source of authorities.
The word “authorities” here refers not simply to
political authority in the abstract but also to the three branches of
government: executive, legislative, and judicial.
The al-Qabas draft skips from article 7 to article
9.
Article 9. Iraqis are equal in rights and duties. With respect to sex, nationality, sect, and
race, they are equal before the law.
The provision for gender
equality is very generous. Indeed, it
is far more generous than in the United States (where an equal rights amendment
was not ratified). However, other Arab
countries with similar provisions (such as Kuwait) have not always implemented
them fully. Kuwait bars women from
voting in a manner that almost certainly violates its constitution. Yet it took
over three decades for a court case to be raised challenging the ban, and the
Kuwaiti courts have thus far escaped from ruling on the manner because of
technical deficiencies in the cases that have been raised.
Article 10. Public and private freedoms are
sacrosanct. The people have the right
to freely express [themselves], organize, meet, move, and publish, and they
have the right to demonstrate and strike in accordance with the provisions of
law.
The rights to
demonstrate and strike would seem to depend on necessary legislation (and the
legislation in effect from the Ba‘thist period would likely be extremely
restrictive). The other rights seem to
be absolute, though (in contrast to article 11) they are offered to “the
people” as opposed to individuals. It is not clear that this distinction would
have any practical meaning.
Article 11. The individual has the right to education, well-being, work, and
security and the right to a fair public trial.
Article 12. The various nationalities are fraternal in service to the
homeland, with the framework of a federal, united Iraq.
Article 13. The judiciary is independent from the legislative and executive
branches in accordance with the principle of separation of powers.
The Coalition
Provisional Authority has already issued a law
establishing a fairly independent Council of Judges.
Article 14. Private property shall be preserved. It shall not be taken from its owner except for public benefit in
return for just and swift compensation.
This appropriation shall be regulated by law. An Iraqi citizen has ownership rights in all areas of Iraq.
The last sentence grants
rights to Iraqi citizens but not foreigners; in most Arab countries, ownership
of land by foreigners is a sensitive issue.
The article clearly
establishes a principle, but gives little guidance on how to settle property
claims that have already arisen in post-Ba`thist Iraq. For instance, in areas in the north,
populations moved in the wake of the establishment of Kurdish autonomy in
1991. Additionally, Palestinian
refugees—who are generally not citizens— sometimes were awarded seized
property.
Article 15. The first task of the army is to preserve the integrity of the
lands of the country. It may not
intervene in politics.
Iraqi military
intervention has a long history—from 1936 until 1941 it was the main arbiter of
political power. From 1958 until 1979
every Iraqi president came from the military.
Article 16. It shall be forbidden to carry weapons for self-defense except by
permit issued according to law.
The Coalition
Provisional Authority has already issued a firearms
law.
Article 17. There shall be no tax, crime, or punishment except by law.
Article 18.
a.
An Iraqi national may not be deprived of Iraqi citizenship.
b.
Political refugees may not be
surrendered.
c.
It is forbidden to torture someone
accused of a violation, misdemeanor, or felony in any manner of physical or
psychological torture.
By including psychological as well as physical torture,
the Iraqi constitution closes a potentially important loophole. It still leaves two others. First, the Egyptian constitution bars the
use of evidence obtained under torture; this document has no such
provision. Second, torture is not
barred for those not accused of any crime.
Separate article. In accordance with the agreement signed 15
November 2003 between the president of the Governing Council and the
administrator of the Coalition Provisional Authority, a security agreement
between the Governing Council and the said Authority shall be concluded,
provided that it is signed by both of them before the end of March 2004. This security agreement shall be presented
to the Transitional National Assembly for approval in the month of June 2004.
It is not clear why this
is not a numbered article. But while the article lacks a number, it does not
want importance.
First, it clearly is
designed to ensure that any security agreement between the Coalition
Provisional Authority and the current Governing Council binds the sovereign
Iraqi government. It therefore answers
an American concern that the restoration of Iraqi sovereignty at the end of
June 2004 not terminate the American security and military presence.
Second, it introduces a
ratification procedure for a security agreement, and brings the Transitional
National Authority—a body not yet created—into the process.
Third, it suggests the
drafters are students of history. A
virtually identical procedure was used to conclude an Anglo-Iraqi treaty in
1924: an Iraqi constituent assembly was elected to issue a constitution; the
British also insisted that the body ratify a treaty. That step led some Shi‘i leaders to boycott elections to the
assembly. The assembly finally did approve
the treaty but did so only after a British ultimatum.
Anyone aware of this
history, however, would also note that the British success in predicating
sovereignty on negotiation of security arrangements was successful in the short
term only in a way that undermined the long-term viability of those
arrangements and the governments that acquiesced to them. What was reluctantly accepted in Iraq and
elsewhere the 1920s became unpalatable in later decades; regimes that agreed to
security arrangements often found their legitimacy undermined.
Chapter III—The Transitional Legislative Authority
Article 19. During the transitional phase, there shall be formed a
transitional legislative authority for the state of Iraq, called the
“Transitional National Assembly.” Among
its chief tasks shall be legislation of laws and oversight over the work of the
executive branch.
This chapter is devoted
largely to the formation of the National Assembly; very little is devoted to
its duties and authorities.
Article 20. The Transitional National Assembly shall be composed of members
representing all the provinces of Iraq, so that for every 100,000 inhabitants,
there will be one member, according to the census.
Article 21.
a.
A committee will be formed immediately called the “Organizing
Committee” in each province of Iraq, consisting of fifteen members. Five of
them shall be appointed by the Governing Council; five of them shall be
appointed by the provincial council; and five of them shall be appointed by the
local councils of the five largest cities in the province with one member from
each of these councils.
b.
Decisions in the Committee shall be
taken by a majority of eleven votes.
c.
Members of the Committee may not be
candidates for the Transitional National Council.
Article 22. The Organizing Committee shall receive, in times that it sets and
announces, candidacies for the Transitional National Assembly from political
parties and civil society institutions such as professional and civil unions
and syndicates, university faculties, religious and tribal associations, and
independents as well. Members of the
Governing Council similarly have the right of candidacy for the Transitional
National Assembly.
Article 23. A candidate for the Transitional National Assembly must meet the
following conditions:
1.
Be not less than thirty years of age.
2.
Not belong to the dissolved Ba‘th Party
or be affiliated with the agencies of repression or have contributed to the
oppression of citizens.
3.
Not have illegitimately been enriched at
the expense of the people and public funds.
4.
Not have been convicted of a crime of
moral turpitude and be known for good conduct.
5.
Have a degree.
Article 24. The Organizing Committee, in cooperation with the Coalition
Provisional Authority, shall undertake to examine if the candidates have met
the conditions specified in article 23 for the purpose of certifying their
qualification for nomination. Then the
Committee shall be open for appeals according to the procedure it has prepared
for that purpose.
Article 25. The work of the Organizing Committee shall be conducted under
Iraqi judicial supervision and the monitoring of representatives of the United
Nations if feasible.
In several ways, this
article is an innovation in constitutional procedures in the Arab world. First, many documents simply do not mention
any oversight body, generally leaving control over elections to the Ministry of
Interior. Second, when some judicial supervision
is allowed (as in Egypt), it is generally restricted to balloting itself. This article extends it to the entire
electoral process. Third, international
monitoring is rare (though not unknown) in the region, and there has never been
any constitutional provision mentioning it.
However, it must be
added that the Organizing Committee is not conducting an election but
overseeing “electoral assemblies,” the term chosen in article 27 for caucuses.
Article 26. The Organizing Committee shall operate to make the number of
nominees within the bounds of a reasonable number according to the specified
standards the Committee has established for this purpose, including meeting the
conditions for nomination expressed in article 23 and likewise realizing a
balance among various groups.
This clause seems to
grant the Organizing Committee extremely vague authority to discourage
candidacies (and perhaps encourage them) with an eye to an undefined
appropriate number. Similarly, the sort
of balance among groups that is desired is completely undefined.
Article 27. The Organizing Committee shall invite the eligible candidates to
an electoral assembly to be held in the headquarters of the province on a date
that it sets and announces. There it
shall select representatives of the province to the Transitional National
Assembly, doing so under the supervision of the Committee itself and whoever
assists it from the Iraqi men of the judiciary, representatives of the
Coalition Provisional Authority, and monitors from the United Nations. The number of these representatives shall be
in accordance with article 20.
The Coalition
Provisional Authority plays a direct role in the process (according to articles
24 and 27) in a way that could provoke some criticism in Iraq and perhaps
undermine the legitimacy of the outcome in some quarters.
Article 28. The Transitional
National Assembly formed from the representatives selected in accordance with
article 27 shall assemble and its first session shall be held no later than 31
May 2004.
Article 29. This Transitional National Assembly shall establish its standing
orders. Its sessions shall be public
unless necessity dictates otherwise in accordance with what is stipulated in
its standing orders.
Article 30. A member of the Transitional National Assembly shall not be
questioned on opinions expressed in its sessions during his performance of
official duties, nor shall it be allowed to prosecute him judicially or arrest
him when the Assembly is in session without its permission except in flagrante delicto nor is it permitted when [the Assembly] is not in
session without permission from its speaker except in flagrante delicto.
Chapter IV—The Transitional
Executive Authority
Article
31. The executive authority is composed
of the president of the state and the cabinet. It, along with the Transitional National Assembly, shall
complete the establishment of a temporary Iraqi government with full
sovereignty and qualified for international recognition at a time no later than
30 June 2004.
While there are provisions for the cabinet below, there are no
provisions in this draft for the selection of a president, suggesting that the
drafting process is incomplete.
Article
32. The transfer of complete
sovereignty and authority to the Iraqis in the time defined in article 31 shall
dissolve the Coalition Provisional Authority and end the work of the Governing
Council.
Article
33. The Presidency of the state shall
appoint a prime minister as well as the ministers at the suggestion of the
prime minister. The government must
obtain the confidence of the Transitional National Assembly before assuming its
duties.
The document refers generally to the Presidency rather than the
President, suggesting the possibility of—but not requiring—a multimember body.
The document seems to use the term “government” and “cabinet”
[literally, council of ministers] interchangeably. This is common not only in many parliamentary systems but also
generally in the Arab world.
Article
34. The government (its chairman [i.e.,
the prime minister] and members) is responsible to the Transitional National
Assembly. The Assembly may withdraw
confidence form it or from one of its members.
Article
35. The responsibility of the
government is a collective responsibility.
This article seems to be in tension with the possibility of removing confidence
from an individual minister stipulated in article 34.
Article
36. The government shall establish an
internal regulation for its work and undertake the issuing of the necessary
regulations to implement effective laws.
It shall raise draft laws to the Transitional National Assembly so that
they may be legislated after the agreement of the Presidency. The appointment of civil servants in the
special grades and the appointment of deputies for the ministries and
ambassadors shall be by nomination form the relevant ministry, the agreement of
the cabinet, and the approval of the Presidency. All decisions of the cabinet shall be connected to the agreement
of the presidency.
This article leaves some critical matters ambiguous. First, it contains the only detailed
provisions for legislation, but it does not make clear whether all legislation
must be introduced by the government.
Article 19 assigns legislative authority to the Transitional National
Assembly, suggesting—but hardly requiring—that the Assembly has the authority
to initiate legislation on its own. If
the Assembly does have such an authority, there is no provision that its laws
can only be promulgated after presidential approval.
Second, the final sentence seems to indicate that the cabinet can take
no action without presidential approval, dramatically increasing the importance
of the presidency. But I am aware of no
country that has experimented with such a provision. Without it, the draft leans very heavily towards a parliamentary
rather than a presidential system (at least on paper—the precise balance of
power among parliament, cabinet, and head of state often depends not only on
the constitutional text but also on other factors such as the party system and
is thus very difficult to predict).
Chapter V—The Judicial Branch
Article
37. The judiciary is independent, and
there is no authority over it except the law.
Article
38. The judicial apparatus shall be
organized according to law.
Article
39. No judge shall be dismissed except
by a decision from the cabinet and the agreement of the presidency of the
state, acting on a recommendation from the council of the judiciary.
Most Arab states have a judicial council and the Coalition Provisional
Authority has issued a law on the
subject. Oddly, this passing mention in article 39 is the only
constitutional mention of the body.
Article
40. A court called “The Supreme Court”
shall be formed by virtue of a law issued for that purpose to observe that laws
and regulations do not violate what is provided for by this Law [i.e. the
interim constitution].
Chapter VI—The Permanent Stage
Article
41. The Transitional National Assembly
shall issue a law for the press and for meetings and other laws.
Article
42. Elections shall be conducted
according to the law of elections that the Provisional National Assembly shall
issue. These elections shall have the
aim of forming a constitutional conference, charged with drafting the permanent
constitution. This shall be completed
by a date no later than 15 March 2004.
This draft must include the provisions and basic principles included in
the first and second chapter of this Law in addition to the following:
1. Establishment of a democratic, pluralist federal system including
a unified Iraq and organizing the relationship between the territory of
Kurdistan and the central government
2. Guaranteeing basic private and
public freedoms
3. Protecting basic human rights
4. Confirmation of the principle of
separation among the three powers: legislative, executive, and judicial
5. Defining the decentralized
competencies of the provinces not included in the federation
6. Guaranteeing the rights of women
to political participation and other rights in a manner that is equivalent to
the rights of men in all of society
Article
43. The draft of the permanent
constitution shall be published with the aim of promoting general discussion
among the people. Its final text shall
than be presented to a popular referendum for approval.
Article 44.
After the permanent constitution is promulgated, a general election shall be
conducted immediately for the legislative body in accordance with what that
constitution stipulated, and that shall be on a date no later than 31 December
2004.
Article
45. This elected legislative body shall
appoint by the above-mentioned date the new Iraqi government that shall assume
authority.
Article
46. At that time, the effectiveness of
this law for the transitional period shall end.