The
constitution of Iraq
forms the legal basis for the government of Iraq.
History
The current constitution was approved by a
referendum that
took place on
15 October 2005. The constitution was drafted in 2005 by members
of the Iraqi Constitution Drafting Committee to replace the
Law of Administration for the State of Iraq for the Transitional
Period (the "TAL").
The TAL was drafted between December 2003 and
March 2004 by the Iraqi Governing Council, an appointed body that
was selected by the Coalition Provisional
Authority after the Iraq War and
occupation of Iraq by the
United
States
and Coalition forces.
Under a compromise brokered before the referendum, it was agreed
that the first parliament that was to be elected pursuant to the
new constitution would institute a Constitutional Review Committee
with a view to determine whether the constitution should be
amended. Any amendments agreed would have to be ratified by a
similar referendum to the one that originally approved it. After
this agreement was entered into, the Sunni-majority
Iraqi Islamic Party agreed to back a Yes
vote in the referendum that took place on
October 15,
2005. The
Constitutional Review Committee was constituted by the Iraqi
parliament on
25 September 2006.
Electoral Commission officials said at a news conference that 78
percent of voters backed the charter and 21 percent opposed it. Of
the 18
provinces, two recorded
"No" votes greater than two thirds, one province short of a veto. A
two-thirds rejection vote in three of the country's 18 provinces
(of which three -- Mosul, Anbar, and Salahaddin -- are thought to
include Sunni majorities) would have required the dissolution of
the Assembly, fresh elections, and the recommencement of the entire
drafting process. Turnout in the referendum was 63 percent,
commission officials had previously said.
The drafting and adoption of the new Constitution was not without
controversy, however, as sectarian tensions in Iraq figured heavily
in the process. The chairman of the drafting committee,
Humam Hamoudi, who is a leader in the military
wing of the
Supreme
Islamic Iraqi Council (the
Badr
Organisation), regularly made statements which were interpreted
as meaning that there would be no compromises on Sunni demands. The
deadline for the conclusion of drafting was extended on four
occasions because of the lack of consensus on religious language.
In the end, only three of the 15 Sunni members of the drafting
committee attended the signing ceremony, and none of them signed
it. Sunni leaders were split as to whether to support the
constitution.
Saleh al-Mutlaq, the
chief Sunni negotiator, urged followers of his Hewar Front to vote
against it, but the biggest Sunni block, the Iraqi Accord Front did
support the document after receiving promises that it would be
reviewed and amended, taking into account their views. A
Constitution Amendment
Committee has been set up in this regard, but the progress has
been slow. Notably, the same controversial figure who chaired the
drafting committee, Humam Hamoudi, is chairing the amendment
committee as well.
The text of the proposed constitution was read to the
National Assembly on Sunday
28 August 2005. It
describes the state as a "democratic, federal, representative
republic" (art. 1) (however, the division of powers is to be
deferred until the first parliament convenes), and a "multi-ethnic,
multi-religious and multi-sect country" (art. 3).
Iraq's first, monarchical, constitution was imposed by the British
authorities in 1925 and remained in effect until the 1958
revolution established a republic. Interim constitutions were
adopted in 1958, 1963, 1964, 1968, and 1970, the last remaining in
effect
de jure until the
Transitional Administrative Law was adopted. In 1990, a draft
constitution was prepared but never promulgated due to the onset of
the
Gulf War.
Changes
On
18 September 2005, several changes to the text of the constitution
were approved by Iraq's parliament, and will be included in the
version published for ratification by the public. Also, a new
compromise was made which caused many Sunni groups to support the
constitution.Many of the links to the Constitution use the
24 August 2005 AP wire
translation; however,
the American Chronicle uses a slightly
different translation dated
12 October
2005.
Drafting
The constitution was drafted by a committee appointed by the
Iraqi Transitional
Government that was elected in January 2005. In order to
include fair representative from the
Sunni
Arab minority, which had largely boycotted that
vote, additional members were co-opted onto the committee from
outside the National Assembly.
See also:
Members of
the Iraqi Constitution Drafting Committee.
Adoption
The Constitution was adopted on
15
October 2005 in a referendum of the
people.
Amendment
Under a compromise brokered before the referendum, it was agreed
that the first parliament that was to be elected pursuant to the
new constitution would institute a Constitutional Review Committee
with a view to determine whether the constitution should be
amended. Any amendments agreed would have to be ratified by a
similar referendum to the one that originally approved it. After
this agreement was entered into, the Sunni-majority
Iraqi Islamic Party agreed to back a Yes
vote in the referendum that took place on
15
October 2005. The Constitutional Review
Committee was constituted by the Iraqi parliament on
25 September 2006.
Overview
Basic Principles
The Constitution sets out a multitude of basic assertions
(unfortunately because of last minute changes to the constitution,
most of the footnote references below to specific articles in the
constitution are inaccurate):
- Iraq is an independent nation.
- The system of government is a democratic, federal,
representative, parliamentary republic.
- Islam is the state religion and a basic foundation for the
country's laws, and no law may contradict the established
provisions of Islam.
- No law that contradicts the principles of democracy may be
established.
- No law that contradicts the rights and basic freedoms may be
established.
- The Islamic identity of the majority of the Iraqi people and
the full religious rights for all individuals and the freedom of
creed and religious practices is guaranteed.
- Iraq is part of the Islamic world
and its Arab citizens are part of the Arab nation.
- Iraq is a multiethnic, multi-religious and multi-sect country
and Arabic and Kurdish are the official languages. Iraqis
are guaranteed the right to educate their children in their mother
tongues, such as Turkmen and
Assyrian, in government
educational institutions, or any other language in private
educational institutions, according to educational
regulations.
- The Turkomen and Assyrian languages will be official in the
areas where they are located. Any region or province can take a
local language as an additional official language if a majority of
the population approves in a general referendum.
- Entities or trends may not advocate, instigate, justify or
propagate racism, terrorism, "takfir" (declaring someone an
infidel), or sectarian cleansing. The "Saddamist Ba'ath Party", regardless of the name that it
adopts, is specifically banned.
- The country has a military and security services under the
command of the civil authority, and will not interfere in politics,
or be used in the transfer of authority. Militias are prohibited.
Military officials may not hold office.
- The constitution is the highest law of the land. No law may be
passed that contradicts the constitution.
Rights and Freedoms
The Constitution defines many rights and freedoms, and incorporates
laws in many subject areas into the Constitution. It guarantees the
rule of law,
equality before the law,
equal opportunity,
privacy, inalienable
nationality and
dual
nationality,
judicial
independence, the prohibition on
ex post facto laws,
right to counsel, a
public trial unless the court decides to make
it a
secret trial, a
presumption of innocence, the right
to participate in public affairs and the right to vote, to elect
and to nominate, freedom from
extradition,
political asylum, "economic, social and
cultural liberties", the
right to
work, the right to join
trade
unions, ownership of
personal
property,
eminent domain powers,
rights similar to the
Four Freedoms ,
minimum wage,
universal health care,
free education,
dignity, freedom from psychological and physical
torture and inhumane treatment and the right to compensation,
freedom from "compulsory service", limited
freedom of expression,
freedom of the press, and
freedom of assembly, the right to engage
in sports, limited freedom of forming and of joining associations
and political parties, requirement of
warrants for
wiretaps,
freedom of religion, freedom of
thought, conscience and belief.
The Federal Government
The federal government is composed of the
executive,
legislative, and
judicial branches, as well as numerous
independent commissions.
Legislative branch
The legislative branch is composed of the
Council of
Representatives and the
Federation Council.
Council of Representatives
The Council of Representatives is the main elected body of Iraq.
The Constitution defines the "number of members at a ratio of one
representative per 100,000 Iraqi persons representing the entire
Iraqi people." The members are elected for terms of 4 years.
The council elects the
President of
Iraq; approves the appointment of the members of the Federal
Court of Cassation, the Chief Public Prosecutor, and the President
of Judicial Oversight Commission on proposal by the Higher
Juridical Council; and approves the appointment of the Army Chief
of Staff, his assistants and those of the rank of division
commanders and above, and the director of the intelligence service,
on proposal by the Cabinet.
Federation Council
The Federation Council is composed of representatives from the
regions and the governorates that are not organized in a region.
The council is regulated in law by the Council of
Representatives.
Executive branch
The executive branch is composed of the
President and the
Council of Ministers.
President
The President of the Republic is the
head
of state and "safeguards the commitment to the Constitution and
the preservation of Iraq's independence, sovereignty, unity, the
security of its territories in accordance with the provisions of
the Constitution." The President is elected by the Council of
Representatives by a two-thirds majority, and is limited to two
four-year terms. The President ratifies treaties and laws passed by
the Council of Representatives, issues
pardons on the recommendation of the
Prime Minister, and performs the
"duty of the Higher Command of the armed forces for ceremonial and
honorary purposes."
There also exists a Vice President which shall assume the office of
the President in case of his absence or removal.
Presidency Council
The Presidency Council is an entity currently operating under the
auspices of the "transitional provisions" of the Constitution.
According to the Constitution, the Presidency Council functions in
the role of the President until one successive term after the
Constitution is ratified and a government is seated.
Council of Ministers
The Council of Ministers is composed of the
Prime Minister and his
cabinet. The President of Iraq names
the nominee of the Council of Representatives bloc with the largest
number to form the Cabinet. The Prime Minister is the direct
executive authority responsible for the general policy of the State
and the
commander-in-chief of the
armed forces, directs the Council of Ministers, and presides over
its meetings and has the right to dismiss the Ministers on the
consent of the Council of Representatives.
The cabinet is responsible for overseeing their respective
ministries, proposing laws, preparing the budget, negotiating and
signing international agreements and treaties, and appointing
undersecretaries, ambassadors, the Chief of Staff of the Armed
Forces and his assistants, Division Commanders or higher, the
Director of the National Intelligence Service, and heads of
security institutions.
Judicial branch
The federal judiciary is composed of the
Higher Judicial Council, the
Supreme Court, the
Court of Cassation, the
Public Prosecution
Department, the
Judiciary Oversight
Commission, and other federal courts that are regulated by law.
One such court is the
Central Criminal Court.
Higher Judicial Council
The Higher Judicial Council manages and supervises the affairs of
the federal judiciary. It oversees the affairs of the various
judicial committees, nominates the Chief Justice and members of the
Court of Cassation, the Chief Public Prosecutor, and the Chief
Justice of the Judiciary Oversight Commission, and drafts the
budget of the judiciary.
Supreme Court
The Supreme Court is an independent judicial body that interprets
the constitution and determines the constitutionality of laws and
regulations. It acts as a final
court
of appeals, settles disputes amongst or between the federal
government and the regions and governorates, municipalities, and
local administrations, and settles accusations directed against the
President, the Prime Minister and the Ministers. It also ratifies
the final results of the general elections for the Council of
Representatives.
Central Criminal Court
The
Central Criminal Court of Iraq is the main criminal court of Iraq. The
CCCI is based on an
inquisitorial
system and consists of two chambers: an investigative court,
and a criminal court.
Independent commissions and institutions
The
High Commission for
Human Rights, the
Independent Electoral High
Commission, and the
Commission on Public
Integrity are independent commissions subject to monitoring by
the Council of Representatives. The
Central Bank of Iraq, the
Board of Supreme Audit, the
Communications and
Media Commission, and the
Endowment Commission are financially
and administratively independent institutions. The
Foundation of Martyrs is attached to
the Council of Ministers. The
Federal Public Service
Council regulates the affairs of the federal public service,
including appointment and promotion.
Powers of the Federal Government
The federal government has exclusive power over:
- Foreign policy and negotiation
- Fiscal and customs policy, currency, inter-regional and
inter-governate trade policy, monetary policy, and administering a
central bank
- Standards and weights, naturalization, the radio spectrum, and
the mail
- The national budget
- Water policies
- The Census
- Welfare programs
- Management of oil and gas, in cooperation with the governments
of the producing regions and governates
Powers shared with regional authorities:
- regional customs
- electrical power
- environmental policy
- public planning
- health, and education
All powers not exclusively granted to the federal government are
powers of the regions and governorates that are not organized in a
region. Priority is given to regional law in case of conflict
between other powers shared between the federal government and
regional governments.
Regions
Chapter Five,
Authorities of the Regions, describes the
form of Iraq's federation. It begins by stating that the republic's
federal system is made up of the capital, regions, decentralized
provinces, and local administrations.
- :*Part One: Regions
The country's future
Regions are to be established from
its current
18 governorates (or
provinces). Any single province, or group of provinces, is entitled
to request that it be recognized as a region, withsuch a request
being made by either two-thirds of the members of the provincial
councils in the provinces involved or by one-tenth of the
registered voters in the province(s) in question.
Art. 117 paragraph 3 is of relevance to the contentious issue of
oil revenues, stating that "Regions and provinces shall be
allocated an equitable share of the national revenues sufficient to
discharge their responsibilities and duties, but having regard to
their resources, needs and the percentage of their
population."
- :*Part Two: Provinces not organized into a
Region
Provinces that are unwilling or unable to join a region still enjoy
enough autonomy and resources to enable them to manage their own
internal affairs according to the principle of administrative
decentralization. With the two parties' approval, federal
government responsibilities may be delegated to the provinces, or
vice versa. These decentralized provinces are headed by
Provincial Governors, elected by
Provincial Councils. The administrative levels
within a province are defined, in descending order, as districts,
counties and villages.
- :*Part Three: The Capital
Article
120 states that Baghdad
is the
Capital of the Republic, within the boundaries of
Baghdad
Governorate
. The constitution makes no specific
reference to the status of the capital and its surrounding
governorate within the federal structure, stating merely that its
status is to be regulated by law.
- :*Part Four: Local Administrations
Consisting solely of Article 121, Part Four simply states that the
constitution guarantees the administrative, political, cultural,
and educational rights of the country's various ethnic groups
(
Turkmen,
Assyrians, etc.), and that legislation will
be adopted to regulate those rights.
Final and Transitional Guidelines
- :*First: Final Guidelines
- :*Second: Transitional
Guidelines
References
- International Crisis Group, "Unmaking Iraq: A Constitutional
Process Gone Awry" ICG Middle East Policy Briefing 26
September 2005.
- Constitution of Iraq, Article 1
- Constitution of Iraq, Article 2(1st)
- Constitution of Iraq, Article 2(1st)(a)
- Constitution of Iraq, Article 2(1st)(b)
- Constitution of Iraq, Article 2(1st)(c)
- Constitution of Iraq, Article 2(2nd)
- Constitution of Iraq, Article 3
- Constitution of Iraq, Article 4(1st)
- Constitution of Iraq, Article 4(4th)
- Constitution of Iraq, Article 4(5th)
- Constitution of Iraq, Article 7(1st)
- Constitution of Iraq, Article 9(1st)(a)
- Constitution of Iraq, Article 9(1st)(b)
- Constitution of Iraq, Article 9(1st)(c)
- Constitution of Iraq, Article 13(1st)
- Constitution of Iraq, Article 13(2nd)
- Constitution of Iraq, Article 15
- Constitution of Iraq, Article 28
- Constitution of Iraq, Article 14
- Constitution of Iraq, Article 16
- Constitution of Iraq, Article 17
- Constitution of Iraq, Article 18
- Constitution of Iraq, Article 19
- Constitution of Iraq, Article 20
- Constitution of Iraq, Article 21
- Constitution of Iraq, Article 22
- Constitution of Iraq, Article 23
- Constitution of Iraq, Article 24
- Constitution of Iraq, Article 42
- Constitution of Iraq, Article 31
- Constitution of Iraq, Article 34
- Constitution of Iraq, Article 35
- Constitution of Iraq, Article 36
- Constitution of Iraq, Article 37
- Constitution of Iraq, Article 38
- Constitution of Iraq, Article 39
- Constitution of Iraq, Article 40
- Constitution of Iraq, Article 46
- Constitution of Iraq, Article 47
- Constitution of Iraq, Article 54
- Constitution of Iraq, Article 58
- Constitution of Iraq, Article 62
- Constitution of Iraq, Article 63
- Constitution of Iraq, Article 64
- Constitution of Iraq, Article 67
- Constitution of Iraq, Article 69
- Constitution of Iraq, Article 70
- Constitution of Iraq, Article 72
- Constitution of Iraq, Article 134
- Constitution of Iraq, Article 139
- Constitution of Iraq, Article 73
- Constitution of Iraq, Article 75
- Constitution of Iraq, Article 77
- Constitution of Iraq, Article 86
- Constitution of Iraq, Article 88
- Constitution of Iraq, Article 87
- Constitution of Iraq, Article 88
- Constitution of Iraq, Article 90
- Constitution of Iraq, Article 99
- Constitution of Iraq, Article 100
- Constitution of Iraq, Article 101
- Constitution of Iraq, Article 104
- Constitution of Iraq, Article 107(1st)
- Constitution of Iraq, Article 107(3rd)
- Constitution of Iraq, Article 107(4th)
- Constitution of Iraq, Article 107(5th)
- Constitution of Iraq, Article 107(6th)
- Constitution of Iraq, Article 107(7th)
- Constitution of Iraq, Article 107(8th)
- Constitution of Iraq, Article 107(9th)
- Constitution of Iraq, Article 109
- Constitution of Iraq, Article 111
External articles
There are two versions of the draft constitution, and many
(slightly different) translations of both texts are circulating on
the Internet:
1. The final draft (September 2005), which was approved by
referendum, contains 139 articles. All the mentioned translations
slightly differ from each other; between brackets for comparison,
the word used in article 2.A stating that no law may contradict
"the
established/fixed/undisputed rules of Islam":
2. The first published draft (August 2005), containing 153
articles, was later amended but is still broadly circulating thanks
to an
Associated Press translation
(wherein articles 30.2 and 46 are missing):
3. The final version is now available with 144 articles, in both an
official Arabic version and unofficial (though approved) English
translation.
other materials:
Commentary
- Iraq's Constitutional Process II: An Opportunity
Lost (United States
Institute of Peace Special Report No.155) (Jonathan Morrow,
December 2005)
- Articles of Consternation: Iraq's infuriatingly vague
constitution (Slate.com, 23 August 2005)
- Unfinished Constitution Presented, vote Delayed
(Juan Cole, 23
August 2005)
- Unmaking Iraq: A Constitutional Process Gone
Awry (International
Crisis Group, 26 September 2005)
- Iraq: a constitution to nowhere (Zaid Al-ali,
15 October 2005)
- Bush Caves In To Islamist Constitution For Iraq
(Doug Ireland, 22
August 2005)
- Islamic Law Primary in Iraqi Constitution
(Juan Cole, 21
August 2005)
- Investors' rights trump social justice in Iraqi
Constitution
- The Iraqi Constitution: What Would Approval Really
Mean?, JURIST
- Socialism As “Progress Toward Peace”--Iraqi
Constitution 6 Part Series (17
October 2005)
- Kurdistani identity is denied in the Iraqi
constitution
- Weak Viability: The Iraqi Federal State and the
Constitution Amendment Process (United States Institute of
Peace Special Report No.168) (Jonathan Morrow, July 2006)
External links
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