[casi-analysis] draft interim constitution

[Daniel O'Huiginn <do227@DELETETHIShermes.cam.ac.uk>]

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Dear list,

This is probably old news for some of you, but I'm going to post it anyway
in the hope of getting some reactions. A week ago today, al-Qabas (A
kuwaiti newspaper) published an Arabic-language draft of the interim Iraqi
constitution (http://www.alqabas.com.kw/news_details.php?cat=2&id=55661).
Below is an english translation and commentary by Nathan Brown, a politics
professor at George Washington University. Text in [square brackets] is
his commentary. (from
http://www.geocities.com/nathanbrown1/interimiraqiconstitution.html)

There are obvious problems with reading too much into this. It is an
incomplete draft, presumably one of many formulations being debated, and
there is no indication of whose draft it is or why they have released it.
Presumably other drafts exist for a 250-member expansion of the governing
council, for a 3- or 4-man presidency (on which, see article 33 below),
and for many of the other schemes being floated.

On the other hand, the amount of information released about the
constitution-drafting process has been extremely limited (whatever
happened to the report of the preparatory constitutional committee, for
example?), so we really should pay attention to this.

Anyway, here's the draft...

[On 1 February 2004, the Kuwaiti daily al-Qabas published an
Arabic-language draft of the 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.)

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.  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,
so that it is unclear if it is the most current.

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).  It is explicitly provisional in nature, with
provisions for a permanent constitution to be written by the end of 2005.

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.]

Chapter I.General Provisions
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 departs 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.]

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 35.]

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 2005.  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, pluralism 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 2005.

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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