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[ This message has been sent to you via the CASI-analysis mailing list ] 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. _______________________________________ Sent via the CASI-analysis mailing list To unsubscribe, visit http://lists.casi.org.uk/mailman/listinfo/casi-analysis All postings are archived on CASI's website at http://www.casi.org.uk