Subject: [HAB:] Iraqi Constitution
Date: Fri, 05 Mar 2004 01:23:41 +0000


I thought some may find this interesting,

MattP.


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.
Chapter II—Basic Principles 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 
<http://www.cpa-iraq.org/regulations/20030921_CPAORD35.pdf>.
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 
<http://www.cpa-iraq.org/regulations/20040109_CPAORD3-REV-AMD.pdf>.
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 
<http://www.cpa-iraq.org/regulations/20030921_CPAORD35.pdf>. 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.

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