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The constitution of Iraqmarker 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 Iraqmarker by the United Statesmarker 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 Iraqmarker. 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 Baghdadmarker is the Capital of the Republic, within the boundaries of Baghdad Governoratemarker. 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

  1. International Crisis Group, "Unmaking Iraq: A Constitutional Process Gone Awry" ICG Middle East Policy Briefing 26 September 2005.
  2. Constitution of Iraq, Article 1
  3. Constitution of Iraq, Article 2(1st)
  4. Constitution of Iraq, Article 2(1st)(a)
  5. Constitution of Iraq, Article 2(1st)(b)
  6. Constitution of Iraq, Article 2(1st)(c)
  7. Constitution of Iraq, Article 2(2nd)
  8. Constitution of Iraq, Article 3
  9. Constitution of Iraq, Article 4(1st)
  10. Constitution of Iraq, Article 4(4th)
  11. Constitution of Iraq, Article 4(5th)
  12. Constitution of Iraq, Article 7(1st)
  13. Constitution of Iraq, Article 9(1st)(a)
  14. Constitution of Iraq, Article 9(1st)(b)
  15. Constitution of Iraq, Article 9(1st)(c)
  16. Constitution of Iraq, Article 13(1st)
  17. Constitution of Iraq, Article 13(2nd)
  18. Constitution of Iraq, Article 15
  19. Constitution of Iraq, Article 28
  20. Constitution of Iraq, Article 14
  21. Constitution of Iraq, Article 16
  22. Constitution of Iraq, Article 17
  23. Constitution of Iraq, Article 18
  24. Constitution of Iraq, Article 19
  25. Constitution of Iraq, Article 20
  26. Constitution of Iraq, Article 21
  27. Constitution of Iraq, Article 22
  28. Constitution of Iraq, Article 23
  29. Constitution of Iraq, Article 24
  30. Constitution of Iraq, Article 42
  31. Constitution of Iraq, Article 31
  32. Constitution of Iraq, Article 34
  33. Constitution of Iraq, Article 35
  34. Constitution of Iraq, Article 36
  35. Constitution of Iraq, Article 37
  36. Constitution of Iraq, Article 38
  37. Constitution of Iraq, Article 39
  38. Constitution of Iraq, Article 40
  39. Constitution of Iraq, Article 46
  40. Constitution of Iraq, Article 47
  41. Constitution of Iraq, Article 54
  42. Constitution of Iraq, Article 58
  43. Constitution of Iraq, Article 62
  44. Constitution of Iraq, Article 63
  45. Constitution of Iraq, Article 64
  46. Constitution of Iraq, Article 67
  47. Constitution of Iraq, Article 69
  48. Constitution of Iraq, Article 70
  49. Constitution of Iraq, Article 72
  50. Constitution of Iraq, Article 134
  51. Constitution of Iraq, Article 139
  52. Constitution of Iraq, Article 73
  53. Constitution of Iraq, Article 75
  54. Constitution of Iraq, Article 77
  55. Constitution of Iraq, Article 86
  56. Constitution of Iraq, Article 88
  57. Constitution of Iraq, Article 87
  58. Constitution of Iraq, Article 88
  59. Constitution of Iraq, Article 90
  60. Constitution of Iraq, Article 99
  61. Constitution of Iraq, Article 100
  62. Constitution of Iraq, Article 101
  63. Constitution of Iraq, Article 104
  64. Constitution of Iraq, Article 107(1st)
  65. Constitution of Iraq, Article 107(3rd)
  66. Constitution of Iraq, Article 107(4th)
  67. Constitution of Iraq, Article 107(5th)
  68. Constitution of Iraq, Article 107(6th)
  69. Constitution of Iraq, Article 107(7th)
  70. Constitution of Iraq, Article 107(8th)
  71. Constitution of Iraq, Article 107(9th)
  72. Constitution of Iraq, Article 109
  73. 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



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