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Here, finally, is the beast.
[http://www.cpa-iraq.org/government/TAL.html]
There's a pretty well-informed and detailed commentary being written at
http://www.geocities.com/nathanbrown1/interimiraqiconstitution.html by
Nathan Brown, which I recommend reading. Meanwhile, a few comments of my
own (and as I'm neither a lawyer nor an Iraqi, take this all with a
pinch of salt)
The CPA and the media are making a big deal of the provision of rights
in the constitution. Yes, they're good (why don't *we* have a right to
privacy, dammit?), but don't necessarily mean a great deal in practice.
Plenty of them have caveats and loopholes like "except by law". And
don't forget that previous Iraqi constitutions have granted sweeping
rights, which haven't been implemented. Take a look at the 1990
constitution [http://www.oefre.unibe.ch/law/icl/iz01000_.html] to see
how easily rights can be promised without being delivered. Also,
extensive constitutional rights can backfire if they are perceived as
impractical and so are ignored.
The process for selecting the first-stage interim govt. will be through
consultations "conducted by the Governing Council and the Coalition
Provisional Authority and possibly in consultation with the United
Nations." That's a pretty limited (non-existent?) role for the UN, which
seems to be the most legitimate and impartial body for overseeing that
kind of a process.
The aim of the army (27) is "defense of Iraq" (an earlier draft had it
as "to preserve the integrity of the lands of the country" -
http://www.geocities.com/nathanbrown1/taldraftjan2004.html). This
strikes me as a beneficial change, which could remove one constitutional
excuse for repression. On the same topic, see 59a: "The permanent
constitution shall contain guarantees to ensure that the Iraqi Armed
Forces are never again used to terrorize or oppress the people of Iraq."
That seems an odd way of short-circuiting the constitution-drafting
process.
We do have a 3-man presidency (though one boss and 2 deputies, which
might make things slightly less prone to collapse). Any historians among
you might like to look at how the last Iraqi triumvirate worked: The
1958 constitution established a "three-man Sovereignty Council to
fulfill the ceremonial functions of the head of state" (Tripp, A History
of Iraq, p. 152).
x
Dan
LAW OF ADMINISTRATION FOR THE STATE OF IRAQ
FOR THE TRANSITIONAL PERIOD
8 March 2004
PREAMBLE
The people of Iraq, striving to reclaim their freedom, which was usurped
by the previous tyrannical regime, rejecting violence and coercion in
all their forms, and particularly when used as instruments of
governance, have determined that they shall hereafter remain a free
people governed under the rule of law.
These people, affirming today their respect for international law,
especially having been amongst the founders of the United Nations,
working to reclaim their legitimate place among nations, have endeavored
at the same time to preserve the unity of their homeland in a spirit of
fraternity and solidarity in order to draw the features of the future
new Iraq, and to establish the mechanisms aiming, amongst other aims, to
erase the effects of racist and sectarian policies and practices.
This Law is now established to govern the affairs of Iraq during the
transitional period until a duly elected government, operating under a
permanent and legitimate constitution achieving full democracy, shall
come into being.
CHAPTER ONE – FUNDAMENTAL PRINCIPLES
Article 1.
(A) This Law shall be called the “Law of Administration for the
State of Iraq for the Transitional Period,” and the phrase “this Law”
wherever it appears in this legislation shall mean the “Law of
Administration for the State of Iraq for the Transitional Period.”
(B) Gender-specific language shall apply equally to male and
female.
(C) The Preamble to this Law is an integral part of this Law.
Article 2.
(A) The term “transitional period” shall refer to the period
beginning on 30 June 2004 and lasting until the formation of an elected
Iraqi government pursuant to a permanent constitution as set forth in
this Law, which in any case shall be no later than 31 December 2005,
unless the provisions of Article 61 are applied.
(B) The transitional period shall consist of two phases.
(1) The first phase shall begin with the formation of a fully
sovereign Iraqi Interim Government that takes power on 30 June 2004.
This government shall be constituted in accordance with a process of
extensive deliberations and consultations with cross-sections of the
Iraqi people conducted by the Governing Council and the Coalition
Provisional Authority and possibly in consultation with the United
Nations. This government shall exercise authority in accordance with
this Law, including the fundamental principles and rights specified
herein, and with an annex that shall be agreed upon and issued before
the beginning of the transitional period and that shall be an integral
part of this Law.
(2) The second phase shall begin after the formation of the Iraqi
Transitional Government, which will take place after elections for the
National Assembly have been held as stipulated in this Law, provided
that, if possible, these elections are not delayed beyond 31 December
2004, and, in any event, beyond 31 January 2005. This second phase
shall end upon the formation of an Iraqi government pursuant to a
permanent constitution.
Article 3.
(A) This Law is the Supreme Law of the land and shall be binding
in all parts of Iraq without exception. No amendment to this Law may be
made except by a three-fourths majority of the members of the National
Assembly and the unanimous approval of the Presidency Council.
Likewise, no amendment may be made that could abridge in any way the
rights of the Iraqi people cited in Chapter Two; extend the transitional
period beyond the timeframe cited in this Law; delay the holding of
elections to a new assembly; reduce the powers of the regions or
governorates; or affect Islam, or any other religions or sects and their
rites.
(B) Any legal provision that conflicts with this Law is null and
void.
(C) This Law shall cease to have effect upon the formation of an
elected government pursuant to a permanent constitution.
Article 4.
The system of government in Iraq shall be republican,
federal, democratic, and pluralistic, and powers shall be shared between
the federal government and the regional governments, governorates,
municipalities, and local administrations. The federal system shall be
based upon geographic and historical realities and the separation of
powers, and not upon origin, race, ethnicity, nationality, or
confession.
Article 5.
The Iraqi Armed Forces shall be subject to the civilian
control of the Iraqi Transitional Government, in accordance with the
contents of Chapters Three and Five of this Law.
Article 6.
The Iraqi Transitional Government shall take effective steps
to end the vestiges of the oppressive acts of the previous regime
arising from forced displacement, deprivation of citizenship,
expropriation of financial assets and property, and dismissal from
government employment for political, racial, or sectarian reasons.
Article 7.
A) Islam is the official religion of the State and is to be
considered a source of legislation. No law that contradicts the
universally agreed tenets of Islam, the principles of democracy, or the
rights cited in Chapter Two of this Law may be enacted during the
transitional period. This Law respects the Islamic identity of the
majority of the Iraqi people and guarantees the full religious rights of
all individuals to freedom of religious belief and practice.
(B) Iraq is a country of many nationalities, and the Arab people
in Iraq are an inseparable part of the Arab nation.
Article 8.
The flag, anthem, and emblem of the State shall be fixed by
law.
Article 9.
The Arabic language and the Kurdish language are the two
official languages of Iraq. The right of Iraqis to educate their
children in their mother tongue, such as Turcoman, Syriac, or Armenian,
in government educational institutions in accordance with educational
guidelines, or in any other language in private educational
institutions, shall be guaranteed. The scope of the term “official
language” and the means of applying the provisions of this Article shall
be defined by law and shall include:
(1) Publication of the official gazette, in the two languages;
(2) Speech and expression in official settings, such as the
National Assembly, the Council of Ministers, courts, and official
conferences, in either of the two languages;
(3) Recognition and publication of official documents and
correspondence in the two languages;
(4) Opening schools that teach in the two languages, in
accordance with educational guidelines;
(5) Use of both languages in any other settings enjoined by the
principle of equality (such as bank notes, passports, and stamps);
(6) Use of both languages in the federal institutions and
agencies in the Kurdistan region.
CHAPTER TWO – FUNDAMENTAL RIGHTS
Article 10.
As an expression of the free will and sovereignty of the
Iraqi people, their representatives shall form the governmental
structures of the State of Iraq. The Iraqi Transitional Government and
the governments of the regions, governorates, municipalities, and local
administrations shall respect the rights of the Iraqi people, including
those rights cited in this Chapter.
Article 11.
(A) Anyone who carries Iraqi nationality shall be deemed an Iraqi
citizen. His citizenship shall grant him all the rights and duties
stipulated in this Law and shall be the basis of his relation to the
homeland and the State.
(B) No Iraqi may have his Iraqi citizenship withdrawn or be exiled
unless he is a naturalized citizen who, in his application for
citizenship, as established in a court of law, made material
falsifications on the basis of which citizenship was granted.
(C) Each Iraqi shall have the right to carry more than one
citizenship. Any Iraqi whose citizenship was withdrawn because he
acquired another citizenship shall be deemed an Iraqi.
(D) Any Iraqi whose Iraqi citizenship was withdrawn for political,
religious, racial, or sectarian reasons has the right to reclaim his
Iraqi citizenship.
(E) Decision Number 666 (1980) of the dissolved Revolutionary
Command Council is annuled, and anyone whose citizenship was withdrawn
on the basis of this decree shall be deemed an Iraqi.
(F) The National Assembly must issue laws pertaining to
citizenship and naturalization consistent with the provisions of this
Law
(G) The Courts shall examine all disputes airising from the
application of the provisions relating to citizenship.
Article 12.
All Iraqis are equal in their rights without regard to gender, sect,
opinion, belief, nationality, religion, or origin, and they are equal
before the law. Discrimination against an Iraqi citizen on the basis of
his gender, nationality, religion, or origin is prohibited. Everyone
has the right to life, liberty, and the security of his person. No one
may be deprived of his life or liberty, except in accordance with legal
procedures. All are equal before the courts.
Article 13.
(A) Public and private freedoms shall be protected.
(B) The right of free expression shall be protected.
(C) The right of free peaceable assembly and the right to join
associations freely, as well as the right to form and join unions and
political parties freely, in accordance with the law, shall be
guaranteed.
(D) Each Iraqi has the right of free movement in all parts of Iraq
and the right to travel abroad and return freely.
(E) Each Iraqi has the right to demonstrate and strike peaceably
in accordance with the law.
(F) Each Iraqi has the right to freedom of thought, conscience,
and religious belief and practice. Coercion in such matters shall be
prohibited.
(G) Slavery, the slave trade, forced labor, and involuntary
servitude with or without pay, shall be forbidden.
(H) Each Iraqi has the right to privacy.
Article 14.
The individual has the right to security, education, health
care, and social security. The Iraqi State and its governmental units,
including the federal government, the regions, governorates,
municipalities, and local administrations, within the limits of their
resources and with due regard to other vital needs, shall strive to
provide prosperity and employment opportunities to the people.
Article 15.
(A) No civil law shall have retroactive effect unless the law so
stipulates. There shall be neither a crime, nor punishment, except by
law in effect at the time the crime is committed.
(B) Police, investigators, or other governmental authorities may
not violate the sanctity of private residences, whether these
authorities belong to the federal or regional governments, governorates,
municipalities, or local administrations, unless a judge or
investigating magistrate has issued a search warrant in accordance with
applicable law on the basis of information provided by a sworn
individual who knew that bearing false witness would render him liable
to punishment. Extreme exigent circumstances, as determined by a court
of competent jurisdiction, may justify a warrantless search, but such
exigencies shall be narrowly construed. In the event that a warrantless
search is carried out in the absence of an extreme exigent circumstance,
the evidence so seized, and any other evidence found derivatively from
such search, shall be inadmissible in connection with a criminal charge,
unless the court determines that the person who carried out the
warrantless search believed reasonably and in good faith that the search
was in accordance with the law.
(C) No one may be unlawfully arrested or detained, and no one may
be detained by reason of political or religious beliefs.
(D) All persons shall be guaranteed the right to a fair and public
hearing by an independent and impartial tribunal, regardless of whether
the proceeding is civil or criminal. Notice of the proceeding and its
legal basis must be provided to the accused without delay.
(E) The accused is innocent until proven guilty pursuant to law,
and he likewise has the right to engage independent and competent
counsel, to remain silent in response to questions addressed to him with
no compulsion to testify for any reason, to participate in preparing his
defense, and to summon and examine witnesses or to ask the judge to do
so. At the time a person is arrested, he must be notified of these
rights.
(F) The right to a fair, speedy, and open trial shall be
guaranteed.
(G) Every person deprived of his liberty by arrest or detention
shall have the right of recourse to a court to determine the legality of
his arrest or detention without delay and to order his release if this
occurred in an illegal manner.
(H) After being found innocent of a charge, an accused may not be
tried once again on the same charge.
(I) Civilians may not be tried before a military tribunal.
Special or exceptional courts may not be established.
(J) Torture in all its forms, physical or mental, shall be
prohibited under all circumstances, as shall be cruel, inhuman, or
degrading treatment. No confession made under compulsion, torture, or
threat thereof shall be relied upon or admitted into evidence for any
reason in any proceeding, whether criminal or otherwise.
Article 16.
(A) Public property is sacrosanct, and its protection is the duty
of every citizen.
(B) The right to private property shall be protected, and no one
may be prevented from disposing of his property except within the limits
of law. No one shall be deprived of his property except by eminent
domain, in circumstances and in the manner set forth in law, and on
condition that he is paid just and timely compensation.
(C) Each Iraqi citizen shall have the full and unfettered right to
own real property in all parts of Iraq without restriction.
Article 17.
It shall not be permitted to possess, bear, buy, or sell
arms except on licensure issued in accordance with the law.
Article 18.
There shall be no taxation or fee except by law.
Article 19.
No political refugee who has been granted asylum pursuant to
applicable law may be surrendered or returned forcibly to the country
from which he fled.
Article 20.
(A) Every Iraqi who fulfills the conditions stipulated in the
electoral law has the right to stand for election and cast his ballot
secretly in free, open, fair, competitive, and periodic elections.
(B) No Iraqi may be discriminated against for purposes of voting
in elections on the basis of gender, religion, sect, race, belief,
ethnic origin, language, wealth, or literacy.
Article 21.
Neither the Iraqi Transitional Government nor the
governments and administrations of the regions, governorates, and
municipalities, nor local administrations may interfere with the right
of the Iraqi people to develop the institutions of civil society,
whether in cooperation with international civil society organizations or
otherwise.
Article 22.
If, in the course of his work, an official of any government
office, whether in the federal government, the regional governments, the
governorate and municipal administrations, or the local administrations,
deprives an individual or a group of the rights guaranteed by this Law
or any other Iraqi laws in force, this individual or group shall have
the right to maintain a cause of action against that employee to seek
compensation for the damages caused by such deprivation, to vindicate
his rights, and to seek any other legal measure. If the court decides
that the official had acted with a sufficient degree of good faith and
in the belief that his actions were consistent with the law, then he is
not required to pay compensation.
Article 23.
The enumeration of the foregoing rights must not be
interpreted to mean that they are the only rights enjoyed by the Iraqi
people. They enjoy all the rights that befit a free people possessed of
their human dignity, including the rights stipulated in international
treaties and agreements, other instruments of international law that
Iraq has signed and to which it has acceded, and others that are deemed
binding upon it, and in the law of nations. Non-Iraqis within Iraq
shall enjoy all human rights not inconsistent with their status as
non-citizens.
CHAPTER THREE – THE IRAQI TRANSITIONAL GOVERNMENT
Article 24.
(A) The Iraqi Transitional Government, which is also referred to
in this Law as the federal government, shall consist of the National
Assembly; the Presidency Council; the Council of Ministers, including
the Prime Minister; and the judicial authority.
(B) The three authorities, legislative, executive, and judicial,
shall be separate and independent of one another.
(C) No official or employee of the Iraqi Transitional Government
shall enjoy immunity for criminal acts committed while in office.
Article 25.
The Iraqi Transitional Government shall have exclusive
competence in the following matters:
(A) Formulating foreign policy and diplomatic representation;
negotiating, signing, and ratifying international treaties and
agreements; formulating foreign economic and trade policy and sovereign
debt policies;
(B) Formulating and executing national security policy, including
creating and maintaining armed forces to secure, protect, and guarantee
the security of the country’s borders and to defend Iraq;
(C) Formulating fiscal policy, issuing currency, regulating
customs, regulating commercial policy across regional and governorate
boundaries in Iraq, drawing up the national budget of the State,
formulating monetary policy, and establishing and administering a
central bank;
(D) Regulating weights and measures and formulating a general
policy on wages;
(E) Managing the natural resources of Iraq, which belongs to all
the people of all the regions and governorates of Iraq, in consultation
with the governments of the regions and the administrations of the
governorates, and distributing the revenues resulting from their sale
through the national budget in an equitable manner proportional to the
distribution of population throughout the country, and with due regard
for areas that were unjustly deprived of these revenues by the previous
regime, for dealing with their situations in a positive way, for their
needs, and for the degree of development of the different areas of the
country;
(F) Regulating Iraqi citizenship, immigration, and asylum; and
(G) Regulating telecommunications policy.
Article 26.
(A) Except as otherwise provided in this Law, the laws in force in
Iraq on 30 June 2004 shall remain in effect unless and until rescinded
or amended by the Iraqi Transitional Government in accordance with this
Law.
(B) Legislation issued by the federal legislative authority shall
supersede any other legislation issued by any other legislative
authority in the event that they contradict each other, except as
provided in Article 54(B).
(C) The laws, regulations, orders, and directives issued by the
Coalition Provisional Authority pursuant to its authority under
international law shall remain in force until rescinded or amended by
legislation duly enacted and having the force of law.
Article 27.
(A) The Iraqi Armed Forces shall consist of the active and reserve
units, and elements thereof. The purpose of these forces is the defense
of Iraq.
(B) Armed forces and militias not under the command structure of
the Iraqi Transitional Government are prohibited, except as provided by
federal law.
(C) The Iraqi Armed Forces and its personnel, including military
personnel working in the Ministry of Defense or any offices or
organizations subordinate to it, may not stand for election to political
office, campaign for candidates, or participate in other activities
forbidden by Ministry of Defense regulations. This ban encompasses the
activities of the personnel mentioned above acting in their personal or
official capacities. Nothing in this Article shall infringe upon the
right of these personnel to vote in elections.
(D) The Iraqi Intelligence Service shall collect information,
assess threats to national security, and advise the Iraqi government.
This Service shall be under civilian control, shall be subject to
legislative oversight, and shall operate pursuant to law and in
accordance with recognized principles of human rights.
(E) The Iraqi Transitional Government shall respect and implement
Iraq’s international obligations regarding the non-proliferation,
non-development, non-production, and non-use of nuclear, chemical, and
biological weapons, and associated equipment, materiel, technologies,
and delivery systems for use in the development, manufacture,
production, and use of such weapons.
Article 28.
(A) Members of the National Assembly; the Presidency Council; the
Council of Ministers, including the Prime Minister; and judges and
justices of the courts may not be appointed to any other position in or
out of government. Any member of the National Assembly who becomes a
member of the Presidency Council or Council of Ministers shall be deemed
to have resigned his membership in the National Assembly.
(B) In no event may a member of the armed forces be a member of
the National Assembly, minister, Prime Minister, or member of the
Presidency Council unless the individual has resigned his commission or
rank, or retired from duty at least eighteen months prior to serving.
Article 29.
Upon the assumption of full authority by the Iraqi Interim
Government in accordance with Article 2(B)(1), above, the Coalition
Provisional Authority shall be dissolved and the work of the Governing
Council shall come to an end.
CHAPTER FOUR – THE TRANSITIONAL LEGISLATIVE AUTHORITY
Article 30.
(A) During the transitional period, the State of Iraq
shall have a legislative authority known as the National Assembly. Its
principal mission shall be to legislate and exercise oversight over the
work of the executive authority.
(B) Laws shall be issued in the name of the people of
Iraq. Laws, regulations, and directives related to them shall be
published in the official gazette and shall take effect as of the date
of their publication, unless they stipulate otherwise.
(C) The National Assembly shall be elected in accordance with
an electoral law and a political parties law. The electoral law shall
aim to achieve the goal of having women constitute no less than
one-quarter of the members of the National Assembly and of having fair
representation for all communities in Iraq, including the Turcomans,
ChaldoAssyrians, and others.
(D) Elections for the National Assembly shall take place
by 31 December 2004 if possible, and in any case no later than by 31
January 2005.
Article 31.
(A) The National Assembly shall consist of 275 members. It shall
enact a law dealing with the replacement of its members in the event of
resignation, removal, or death.
(B) A nominee to the National Assembly must fulfill the following
conditions:
(1) He shall be an Iraqi no less than 30 years of age.
(2) He shall not have been a member of the dissolved Ba’ath Party
with the rank of Division Member or higher, unless exempted pursuant to
the applicable legal rules.
(3) If he was once a member of the dissolved Ba’ath Party with
the rank of Full Member, he shall be required to sign a document
renouncing the Ba’ath Party and disavowing all of his past links with it
before becoming eligible to be a candidate, as well as to swear that he
no longer has any dealings or connection with Ba’ath Party
organizations. If it is established in court that he lied or fabricated
on this score, he shall lose his seat in the National Assembly.
(4) He shall not have been a member of the former agencies of
repression and shall not have contributed to or participated in the
persecution of citizens.
(5) He shall not have enriched himself in an illegitimate manner
at the expense of the homeland and public finance.
(6) He shall not have been convicted of a crime involving moral
turpitude and shall have a good reputation.
(7) He shall have at least a secondary school diploma, or
equivalent
(8) He shall not be a member of the armed forces at the time of
his nomination.
Article 32.
(A) The National Assembly shall draw up its own internal
procedures, and it shall sit in public session unless circumstances
require otherwise, consistent with its internal procedures. The first
session of the Assembly shall be chaired by its oldest member.
(B) The National Assembly shall elect, from its own members, a
president and two deputy presidents of the National Assembly. The
president of the National Assembly shall be the individual who receives
the greatest number of votes for that office; the first deputy president
the next highest; and the second deputy president the next. The
president of the National Assembly may vote on an issue, but may not
participate in the debates, unless he temporarily steps out of the chair
immediately prior to addressing the issue.
(C) A bill shall not be voted upon by the National Assembly unless
it has been read twice at a regular session of the Assembly, on
condition that at least two days intervene between the two readings, and
after the bill has been placed on the agenda of the session at least
four days prior to the vote.
Article 33.
(A) Meetings of the National Assembly shall be public, and
transcripts of its meetings shall be recorded and published. The vote
of every member of the National Assembly shall be recorded and made
public. Decisions in the National Assembly shall be taken by simple
majority unless this Law stipulates otherwise.
(B) The National Assembly must examine bills proposed by the
Council of Ministers, including budget bills.
(C) Only the Council of Ministers shall have the right to present
a proposed national budget. The National Assembly has the right to
reallocate proposed spending and to reduce the total amounts in the
general budget. It also has the right to propose an increase in the
overall amount of expenditures to the Council of Ministers if necessary.
(D) Members of the National Assembly shall have the right to
propose bills, consistent with the internal procedures that drawn up by
the Assembly.
(E) The Iraqi Armed Forces may not be dispatched outside Iraq even
for the purpose of defending against foreign aggression except with the
approval of the National Assembly and upon the request of the Presidency
Council.
(F) Only the National Assembly shall have the power to ratify
international treaties and agreements.
(G) The oversight function performed by the National Assembly and
its committees shall include the right of interpellation of executive
officials, including members of the Presidency Council, the Council of
Ministers, including the Prime Minister, and any less senior official of
the executive authority. This shall encompass the right to investigate,
request information, and issue subpoenas for persons to appear before
them.
Article 34.
Each member of the National Assembly shall enjoy immunity
for statements made while the Assembly is in session, and the member may
not be sued before the courts for such. A member may not be placed
under arrest during a session of the National Assembly, unless the
member is accused of a crime and the National Assembly agrees to lift
his immunity or if he is caught in flagrante delicto in the commission
of a felony.
CHAPTER FIVE – THE TRANSITIONAL EXECUTIVE AUTHORITY
Article 35.
The executive authority during the transitional period shall
consist of the Presidency Council, the Council of Ministers, and its
presiding Prime Minister.
Article 36.
(A) The National Assembly shall elect a President of the State and
two Deputies. They shall form the Presidency Council, the function of
which will be to represent the sovereignty of Iraq and oversee the
higher affairs of the country. The election of the Presidency Council
shall take place on the basis of a single list and by a two-thirds
majority of the members’ votes. The National Assembly has the power to
remove any member of the Presidency Council of the State for
incompetence or lack of integrity by a three-fourths majority of its
members’ votes. In the event of a vacancy in the Presidency Council,
the National Assembly shall, by a vote of two-thirds of its members,
elect a replacement to fill the vacancy.
(B) It is a prerequisite for a member of the Presidency Council to
fulfill the same conditions as the members of the National Assembly,
with the following observations:
(1) He must be at least forty years of age.
(2) He must possess a good reputation, integrity, and rectitude.
(3) If he was a member of the dissolved Ba’ath Party, he must
have left the dissolved Party at least ten years before its fall.
(4) He must not have participated in repressing the intifada of
1991 or the Anfal campaign and must not have committed a crime against
the Iraqi people.
(C) The Presidency Council shall take its decisions unanimously,
and its members may not deputize others as proxies.
Article 37.
The Presidency Council may veto any legislation passed by
the National Assembly, on condition that this be done within fifteen
days after the Presidency Council is notified by the president of the
National Assembly of the passage of such legislation. In the event of a
veto, the legislation shall be returned to the National Assembly, which
has the right to pass the legislation again by a two-thirds majority not
subject to veto within a period not to exceed thirty days.
Article 38.
(A) The Presidency Council shall name a Prime Minister
unanimously, as well as the members of the Council of Ministers upon the
recommendation of the Prime Minister. The Prime Minister and Council of
Ministers shall then seek to obtain a vote of confidence by simple
majority from the National Assembly prior to commencing their work as a
government. The Presidency Council must agree on a candidate for the
post of Prime Minister within two weeks. In the event that it fails to
do so, the responsibility of naming the Prime Minister reverts to the
National Assembly. In that event, the National Assembly must confirm
the nomination by a two-thirds majority. If the Prime Minister is
unable to nominate his Council of Ministers within one month, the
Presidency Council shall name another Prime Minister.
(B) The qualifications for Prime Minister must be the same as for
the members of the Presidency Council except that his age must not be
less than 35 years upon his taking office.
Article 39.
(A) The Council of Ministers shall, with the approval of the
Presidency Council, appoint representatives to negotiate the conclusion
of international treaties and agreements. The Presidency Council shall
recommend passage of a law by the National Assembly to ratify such
treaties and agreements.
(B) The Presidency Council shall carry out the function of
commander-in-chief of the Iraqi Armed Forces only for ceremonial and
protocol purposes. It shall have no command authority. It shall have
the right to be briefed, to inquire, and to advise. Operationally,
national command authority on military matters shall flow from the Prime
Minister to the Minister of Defense to the military chain of command of
the Iraqi Armed Forces.
(C) The Presidency Council shall, as more fully set forth in
Chapter Six, below, appoint, upon recommendation of the Higher Juridical
Council, the Presiding Judge and members of the Federal Supreme Court.
(D) The Council of Ministers shall appoint the Director-General of
the Iraqi National Intelligence Service, as well as officers of the
Iraqi Armed Forces at the rank of general or above. Such appointments
shall be subject to confirmation by the National Assembly by simple
majority of those of its members present.
Article 40.
(A) The Prime Minister and the ministers shall be responsible
before the National Assembly, and this Assembly shall have the right to
withdraw its confidence either in the Prime Minister or in the ministers
collectively or individually. In the event that confidence in the Prime
Minister is withdrawn, the entire Council of Ministers shall be
dissolved, and Article 40(B), below, shall become operative.
(B) In the event of a vote of no confidence with respect to the
entire Council of Ministers, the Prime Minister and Council of Ministers
shall remain in office to carry out their functions for a period not to
exceed thirty days, until the formation of a new Council of Ministers,
consistent with Article 38, above.
Article 41.
The Prime Minister shall have day-to-day responsibility for
the management of the government, and he may dismiss ministers with the
approval of an simple majority of the National Assembly. The
Presidency Council may, upon the recommendation of the Commission on
Public Integrity after the exercise of due process, dismiss the Prime
Minister or the ministers.
Article 42.
The Council of Ministers shall draw up rules of procedure
for its work and issue the regulations and directives necessary to
enforce the laws. It also has the right to propose bills to the
National Assembly. Each ministry has the right, within its competence,
to nominate deputy ministers, ambassadors, and other employees of
special grade. After the Council of Ministers approves these
nominations, they shall be submitted to the Presidency Council for
ratification. All decisions of the Council of Ministers shall be taken
by simple majority of those of its members present.
CHAPTER SIX – THE FEDERAL JUDICIAL AUTHORITY
Article 43.
(A) The judiciary is independent, and it shall in no way be
administered by the executive authority, including the Ministry of
Justice. The judiciary shall enjoy exclusive competence to determine
the innocence or guilt of the accused pursuant to law, without
interference from the legislative or executive authorities.
(B) All judges sitting in their respective courts as of 1 July
2004 will continue in office thereafter, unless removed from office
pursuant to this Law.
(C) The National Assembly shall establish an independent and
adequate budget for the judiciary.
(D) Federal courts shall adjudicate matters that arise from the
application of federal laws. The establishment of these courts shall be
within the exclusive competence of the federal government. The
establishment of these courts in the regions shall be in consultation
with the presidents of the judicial councils in the regions, and
priority in appointing or transferring judges to these courts shall be
given to judges resident in the region.
Article 44.
(A) A court called the Federal Supreme Court shall be constituted
by law in Iraq.
(B) The jurisdiction of the Federal Supreme Court shall be as
follows:
(1) Original and exclusive jurisdiction in legal proceedings
between the Iraqi Transitional Government and the regional governments,
governorate and municipal administrations, and local administrations.
(2) Original and exclusive jurisdiction, on the basis of a
complaint from a claimant or a referral from another court, to review
claims that a law, regulation, or directive issued by the federal or
regional governments, the governorate or municipal administrations, or
local administrations is inconsistent with this Law.
(3) Ordinary appellate jurisdiction of the Federal Supreme Court
shall be defined by federal law.
(C) Should the Federal Supreme Court rule that a challenged law,
regulation, directive, or measure is inconsistent with this Law, it
shall be deemed null and void.
(D) The Federal Supreme Court shall create and publish regulations
regarding the procedures required to bring claims and to permit
attorneys to practice before it. It shall take its decisions by simple
majority, except decisions with regard to the proceedings stipulated in
Article 44(B)(1), which must be by a two-thirds majority. Decisions
shall be binding. The Court shall have full powers to enforce its
decisions, including the power to issue citations for contempt of court
and the measures that flow from this.
(E) The Federal Supreme Court shall consist of nine members. The
Higher Juridical Council shall, in consultation with the regional
judicial councils, initially nominate no less than eighteen and up to
twenty-seven individuals to fill the initial vacancies in the
aforementioned Court. It will follow the same procedure thereafter,
nominating three members for each subsequent vacancy that occurs by
reason of death, resignation, or removal. The Presidency Council shall
appoint the members of this Court and name one of them as its Presiding
Judge. In the event an appointment is rejected, the Higher Juridical
Council shall nominate a new group of three candidates.
Article 45.
A Higher Juridical Council shall be established and assume
the role of the Council of Judges. The Higher Juridical Council shall
supervise the federal judiciary and shall administer its budget. This
Council shall be composed of the Presiding Judge of the Federal Supreme
Court, the presiding judge and deputy presiding judges of the federal
Court of Cassation, the presiding judges of the federal Courts of
Appeal, and the presiding judge and two deputy presiding judges of each
regional court of cassation. The Presiding Judge of the Federal Supreme
Court shall preside over the Higher Juridical Council. In his absence,
the presiding judge of the federal Court of Cassation shall preside over
the Council.
Article 46.
(A) The federal judicial branch shall include existing courts
outside the Kurdistan region, including courts of first instance; the
Central Criminal Court of Iraq; Courts of Appeal; and the Court of
Cassation, which shall be the court of last resort except as provided in
Article 44 of this Law. Additional federal courts may be established by
law. The appointment of judges for these courts shall be made by the
Higher Juridical Council. This Law preserves the qualifications
necessary for the appointment of judges, as defined by law.
(B) The decisions of regional and local courts, including the
courts of the Kurdistan region, shall be final, but shall be subject to
review by the federal judiciary if they conflict with this Law or any
federal law. Procedures for such review shall be defined by law.
Article 47.
No judge or member of the Higher Juridical Council may be
removed unless he is convicted of a crime involving moral turpitude or
corruption or suffers permanent incapacity. Removal shall be on the
recommendation of the Higher Juridical Council, by a decision of the
Council of Ministers, and with the approval of the Presidency Council.
Removal shall be executed immediately after issuance of this approval.
A judge who has been accused of such a crime as cited above shall be
suspended from his work in the judiciary until such time as the case
arising from what is cited in this Article is adjudicated. No judge may
have his salary reduced or suspended for any reason during his period of
service.
CHAPTER SEVEN – THE SPECIAL TRIBUNAL AND NATIONAL COMMISSIONS
Article 48.
(A) The statute establishing the Iraqi Special Tribunal issued on
10 December 2003 is confirmed. That statute exclusively defines its
jurisdiction and procedures, notwithstanding the provisions of this Law.
(B) No other court shall have jurisdiction to examine cases within
the competence of the Iraqi Special Tribunal, except to the extent
provided by its founding statute.
(C) The judges of the Iraqi Special Tribunal shall be appointed in
accordance with the provisions of its founding statute.
Article 49.
(A) The establishment of national commissions such as the
Commission on Public Integrity, the Iraqi Property Claims Commission,
and the Higher National De-Ba’athification Commission is confirmed, as
is the establishment of commissions formed after this Law has gone into
effect. The members of these national commissions shall continue to
serve after this Law has gone into effect, taking into account the
contents of Article 51, below.
(B) The method of appointment to the national commissions shall be
in accordance with law.
Article 50.
The Iraqi Transitional Government shall establish a National
Commission for Human Rights for the purpose of executing the commitments
relative to the rights set forth in this Law and to examine complaints
pertaining to violations of human rights. The Commission shall be
established in accordance with the Paris Principles issued by the United
Nations on the responsibilities of national institutions. This
Commission shall include an Office of the Ombudsman to inquire into
complaints. This office shall have the power to investigate, on its own
initiative or on the basis of a complaint submitted to it, any
allegation that the conduct of the governmental authorities is arbitrary
or contrary to law.
Article 51.
No member of the Iraqi Special Tribunal or of any commission
established by the federal government may be employed in any other
capacity in or out of government. This prohibition is valid without
limitation, whether it be within the executive, legislative, or judicial
authority of the Iraqi Transitional Government. Members of the Special
Tribunal may, however, suspend their employment in other agencies while
they serve on the aforementioned Tribunal.
CHAPTER EIGHT – REGIONS, GOVERNORATES, AND MUNICIPALITIES
Article 52.
The design of the federal system in Iraq shall be
established in such a way as to prevent the concentration of power in
the federal government that allowed the continuation of decades of
tyranny and oppression under the previous regime. This system shall
encourage the exercise of local authority by local officials in every
region and governorate, thereby creating a united Iraq in which every
citizen actively participates in governmental affairs, secure in his
rights and free of domination.
Article 53.
(A) The Kurdistan Regional Government is recognized as the
official government of the territories that were administered by the
that government on 19 March 2003 in the governorates of Dohuk, Arbil,
Sulaimaniya, Kirkuk, Diyala and Neneveh. The term “Kurdistan Regional
Government” shall refer to the Kurdistan National Assembly, the
Kurdistan Council of Ministers, and the regional judicial authority in
the Kurdistan region.
(B) The boundaries of the eighteen governorates shall remain
without change during the transitional period.
(C) Any group of no more than three governorates outside the
Kurdistan region, with the exception of Baghdad and Kirkuk, shall have
the right to form regions from amongst themselves. The mechanisms for
forming such regions may be proposed by the Iraqi Interim Government,
and shall be presented and considered by the elected National Assembly
for enactment into law. In addition to being approved by the National
Assembly, any legislation proposing the formation of a particular region
must be approved in a referendum of the people of the relevant
governorates.
(D) This Law shall guarantee the administrative, cultural, and
political rights of the Turcomans, ChaldoAssyrians, and all other
citizens.
Article 54.
(A) The Kurdistan Regional Government shall continue to perform
its current functions throughout the transitional period, except with
regard to those issues which fall within the exclusive competence of the
federal government as specified in this Law. Financing for these
functions shall come from the federal government, consistent with
current practice and in accordance with Article 25(E) of this Law. The
Kurdistan Regional Government shall retain regional control over police
forces and internal security, and it will have the right to impose taxes
and fees within the Kurdistan region.
(B) With regard to the application of federal laws in the
Kurdistan region, the Kurdistan National Assembly shall be permitted to
amend the application of any such law within the Kurdistan region, but
only to the extent that this relates to matters that are not within the
provisions of Articles 25 and 43(D) of this Law and that fall within the
exclusive competence of the federal government.
Article 55.
(A) Each governorate shall have the right to form a Governorate
Council, name a Governor, and form municipal and local councils. No
member of any regional government, governor, or member of any
governorate, municipal, or local council may be dismissed by the federal
government or any official thereof, except upon conviction of a crime by
a court of competent jurisdiction as provided by law. No regional
government may dismiss a Governor or member or members of any
governorate, municipal, or local council. No Governor or member of any
Governorate, municipal, or local council shall be subject to the control
of the federal government except to the extent that the matter relates
to the competences set forth in Article 25 and 43(D), above.
(B) Each Governor and member of each Governorate Council who holds
office as of 1 July 2004, in accordance with the law on local government
that shall be issued, shall remain in place until such time as free,
direct, and full elections, conducted pursuant to law, are held, or,
unless, prior to that time, he voluntarily gives up his position, is
removed upon his conviction for a crime involving moral turpitude or
related to corruption, or upon being stricken with permanent incapacity,
or is dismissed in accordance with the law cited above. When a
governor, mayor, or member of a council is dismissed, the relevant
council may receive applications from any eligible resident of the
governorate to fill the position. Eligibility requirements shall be the
same as those set forth in Article 31 for membership in the National
Assembly. The new candidate must receive a majority vote of the council
to assume the vacant seat.
Article 56.
(A) The Governorate Councils shall assist the federal government
in the coordination of federal ministry operations within the
governorate, including the review of annual ministry plans and budgets
with regard to activities in the governorate. Governorate Councils
shall be funded from the general budget of the State, and these Councils
shall also have the authority to increase their revenues independently
by imposing taxes and fees; to organize the operations of the
Governorate administration; to initiate and implement province-level
projects alone or in partnership with international, and
non-governmental organizations; and to conduct other activities insofar
as is consistent with federal laws.
(B) The Qada’ and Nahiya councils and other relevant councils
shall assist in the performance of federal responsibilities and the
delivery of public services by reviewing local ministry plans in the
afore-mentioned places; ensuring that they respond properly to local
needs and interests; identifying local budgetary requirements through
the national budgeting procedures; and collecting and retaining local
revenues, taxes, and fees; organizing the operations of the local
administration; initiating and implementing local projects alone or in
conjunction with international, and non-governmental organizations; and
conducting other activities consistent with applicable law.
(C) Where practicable, the federal government shall take measures
to devolve additional functions to local, governorate, and regional
administrations, in a methodical way. Regional units and governorate
administrations, including the Kurdistan Regional Government, shall be
organized on the basis of the principle of de-centralization and the
devolution of authorities to municipal and local governments.
Article 57.
(A) All authorities not exclusively reserved to the Iraqi
Transitional Government may be exercised by the regional governments and
governorates as soon as possible following the establishment of
appropriate governmental institutions.
(B) Elections for governorate councils throughout Iraq and for the
Kurdistan National Assembly shall be held at the same time as the
elections for the National Assembly, no later than 31 January 2005.
Article 58.
(A) The Iraqi Transitional Government, and especially the Iraqi
Property Claims Commission and other relevant bodies, shall act
expeditiously to take measures to remedy the injustice caused by the
previous regime’s practices in altering the demographic character of
certain regions, including Kirkuk, by deporting and expelling
individuals from their places of residence, forcing migration in and out
of the region, settling individuals alien to the region, depriving the
inhabitants of work, and correcting nationality. To remedy this
injustice, the Iraqi Transitional Government shall take the following
steps:
(1) With regard to residents who were deported, expelled, or who
emigrated; it shall, in accordance with the statute of the Iraqi
Property Claims Commission and other measures within the law, within a
reasonable period of time, restore the residents to their homes and
property, or, where this is unfeasible, shall provide just compensation.
(2) With regard to the individuals newly introduced to specific
regions and territories, it shall act in accordance with Article 10 of
the Iraqi Property Claims Commission statute to ensure that such
individuals may be resettled, may receive compensation from the state,
may receive new land from the state near their residence in the
governorate from which they came, or may receive compensation for the
cost of moving to such areas.
(3) With regard to persons deprived of employment or other means
of support in order to force migration out of their regions and
territories, it shall promote new employment opportunities in the
regions and territories.
(4) With regard to nationality correction, it shall repeal all
relevant decrees and shall permit affected persons the right to
determine their own national identity and ethnic affiliation free from
coercion and duress.
(B) The previous regime also manipulated and changed
administrative boundaries for political ends. The Presidency Council of
the Iraqi Transitional Government shall make recommendations to the
National Assembly on remedying these unjust changes in the permanent
constitution. In the event the Presidency Council is unable to agree
unanimously on a set of recommendations, it shall unanimously appoint a
neutral arbitrator to examine the issue and make recommendations. In
the event the Presidency Council is unable to agree on an arbitrator, it
shall request the Secretary General of the United Nations to appoint a
distinguished international person to be the arbitrator.
(C) The permanent resolution of disputed territories, including
Kirkuk, shall be deferred until after these measures are completed, a
fair and transparent census has been conducted and the permanent
constitution has been ratified This resolution shall be consistent
with the principle of justice, taking into account the will of the
people of those territories.
CHAPTER NINE – THE TRANSITIONAL PERIOD
Article 59.
(A) The permanent constitution shall contain guarantees to
ensure that the Iraqi Armed Forces are never again used to terrorize or
oppress the people of Iraq.
(B) Consistent with Iraq’s status as a sovereign state,
and with its desire to join other nations in helping to maintain peace
and security and fight terrorism during the transitional period, the
Iraqi Armed Forces will be a principal partner in the multi-national
force operating in Iraq under unified command pursuant to the provisions
of United Nations Security Council Resolution 1511 (2003) and any
subsequent relevant resolutions. This arrangement shall last until the
ratification of a permanent constitution and the election of a new
government pursuant to that new constitution.
(C) Upon its assumption of authority, and consistent with
Iraq’s status as a sovereign state, the elected Iraqi Transitional
Government shall have the authority to conclude binding international
agreements regarding the activities of the multi-national force
operating in Iraq under unified command pursuant to the terms of United
Nations Security Council Resolution 1511 (2003), and any subsequent
relevant United Nations Security Council resolutions. Nothing in this
Law shall affect rights and obligations under these agreements, or under
United Nations Security Council Resolution 1511 (2003), and any
subsequent relevant United Nations Security Council resolutions, which
will govern the multi-national force’s activities pending the entry into
force of these agreements.
Article 60.
The National Assembly shall write a draft of the permanent
constitution of Iraq. This Assembly shall carry out this responsibility
in part by encouraging debate on the constitution through regular
general public meetings in all parts of Iraq and through the media, and
receiving proposals from the citizens of Iraq as it writes the
constitution.
Article 61.
(A) The National Assembly shall write the draft of the permanent
constitution by no later than 15 August 2005.
(B) The draft permanent constitution shall be presented to the
Iraqi people for approval in a general referendum to be held no later
than 15 October 2005. In the period leading up to the referendum, the
draft constitution shall be published and widely distributed to
encourage a public debate about it among the people.
(C) The general referendum will be successful and the draft
constitution ratified if a majority of the voters in Iraq approve and if
two-thirds of the voters in three or more governorates do not reject it.
(D) If the permanent constitution is approved in the referendum,
elections for a permanent government shall be held no later than 15
December 2005 and the new government shall assume office no later than
31 December 2005.
(E) If the referendum rejects the draft permanent constitution,
the National Assembly shall be dissolved. Elections for a new National
Assembly shall be held no later than 15 December 2005. The new National
Assembly and new Iraqi Transitional Government shall then assume office
no later than 31 December 2005, and shall continue to operate under this
Law, except that the final deadlines for preparing a new draft may be
changed to make it possible to draft a permanent constitution within a
period not to exceed one year. The new National Assembly shall be
entrusted with writing another draft permanent constitution.
(F) If necessary, the president of the National Assembly, with the
agreement of a majority of the members’ votes, may certify to the
Presidency Council no later than 1 August 2005 that there is a need for
additional time to complete the writing of the draft constitution. The
Presidency Council shall then extend the deadline for writing the draft
constitution for only six months. This deadline may not be extended
again.
(G) If the National Assembly does not complete writing the draft
permanent constitution by 15 August 2005 and does not request extension
of the deadline in Article 61(D) above, the provisions of Article 61(E),
above, shall be applied.
Article 62.
This law shall remain in effect until the permanent constitution is
issued and the new Iraqi government is formed in accordance with it.
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