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.Not bad. Sort of combines the intents of American Declaration of Independence and the Constitutional Preamble.
(B) Gender-specific language shall apply equally to male and female.Er, OK. I hope that makes more sense in Arabic or Kurdish than in English.
(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.This is a little ambiguous. It seems to suggest that the constitution will expire upon the seating of the National Assembly. Maybe I'm reading it wrong?
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.This sounds like it clashes with the already-cited Article 61, which provides an emergency "out" for catastrophic failure of the democratization process, which provides for an extension of the interim constitution until a National Assembly passes a permanent constitution and the governorates ratify it.
Article 4.That's a long laundry list. At lease there isn't any jibber-jabber about "competencies" in *this* document.
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.
Article 7.This was the worry-making section. The fact that it places Islam in the same construction as rights and democracy is a mitigating factor, but still not something to be happy about in secular terms.
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.What the hell is this? Sounds as if an Arabic Pat Buchanan or David Duke wrote this line. Pan-Arabist racism does not belong with the rest of the material. Must have been a bone tossed to the Nasserists, ex-Baathists and the lunatic fringe. As if that'll make those rabid dogs sit…
Article 8.Now this here is what I was talking about inappropriate legislative activity. *Not* appropriate in a constitution, in my opinion. The EU draft had the exact same problem. The sort of crap trivially-minded bureaucrats think is important, but really isn't.
The flag, anthem, and emblem of the State shall be fixed by law.
Article 9.. So, they've established two official languages – for publications and laws and such – but are ordering educational instruction in whatever somebody can agitate for. The American Constitution and most of the state constitutions avoided this nonsense for good reason. This is an example of overactive "positive law". It shouldn’t be codified in any constitution, but it'd be worse in a permanent one. To a certain degree, this interim document has to provide for practicalities in the short term, and this bit is a prime example.
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.
Chapter 2 is the Bill of Rights section, contained within the body of the constitution proper. Article 10 establishes a positive tone towards government relations with the rights of the people – it says that the government should "respect" rights, rather than charging the government to not infringe upon rights. The American amendments and articles are generally "negative" – restraining – rather than neutral or positive. I consider this a strength of the American document which is rarely embraced by modern constitutional framers. Article 11 has a lot of language about reinstating Iraqi citizens and the citizenship of existing Iraqis. No language about naturalization, although the existence of naturalized citizens is mentioned. Article 12 is an excellent equality-before-the-law and procedure clause. Article 13 has more of that damned positive language, which makes natural rights appear to be the creature of the government rather than pre-existing conditions that should not be infringed upon by the government:
(A) Public and private freedoms shall be protected.A rather pro-unionist codification of the right of association, but since there's a Communist Party member on the Guardian Council, I'm not surprised. The right of travel is a surprising element, and at first I was hostile on no-extraneous-elements grounds, but as I think about it, it is an interesting addition, and fits the Iraqi experience. That unadorned "right to privacy" element is what's conspiciously missing from the American constitution. It's probably better that it's there than not, although in a permanent constitution it would be way too vague for comfort.
(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.Ouch, ouch, ouch – this is the exact sort of thing that the EU constitutional draft was abused and maligned for, and rightly so. All of these "rights" are legislative goals, and not natural rights. It blows chunks that these are included in any constitutional document. Might as well include the "right" to live forever, or the "right" to God's grace, or the "right" to go swimming. It's also a problem because this multiplication of enumerated "rights" breeds a habit of thought in which all rights which are not explicitly enumerated are implicitly denied without positive legislation or constitutional protection. Bad road to travel, if you ask me.
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, on the other hand, is an excellent passage. As far as I can tell, it establishes a common-law approach to legal proceedings, as opposed to the usual civil code. Innocent until proven guilty is specifically and explicitly laid out, along with a number of other legal principles, such as a ban on post facto legislation, search and seizure principles, double jeopardy, torture or cruel and unusual punishment, and so on. If they went so far as to implement juries, it would be a full-fledged common law system. Interesting.
Article 16 is a property-law muddle, and isn't going to make anybody happy. Article 17 is an explicit refutation of modern American conservative thought about the Second Amendment, and if any of those folks notice this, they'll hit the roof. I don't really care much for such things, so I say "eh". Article 20 is a terribly vague bit of language for what appears to be a voting-rights and election-code section. Perhaps there's more further on in the document? It doesn't even establish any voting-age majority language. Article 21 explicitly protects the development of "civil society", which is a nice idea, although I'm not sure exactly how much use such language could be in practice. Article 23 is a vital "nonenumerated rights" section, which somewhat negates some of my kevetching about excessively positive language.
Chapter Three establishes the transitional government:
Article 24.I don't know how independent the three "authorities" can be, if there's a prime minister as well as a president, and councils for both leaders. Prime Ministers usually exist in mixed-branch parliamentary systems, where the executive is staffed directly by selection from the legislature. In such systems, the President is either ceremonial (which would make a Presidency Council somewhat odd) or the actual executive power, and thus the boss of the Prime Minister – as in the French system.
(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.
Article 25.Goddamnit! There's that damned word, "competency". However, the rest of the language in Article 25 severely limits the authority of the Transitional Government, which I strongly approve of. They're using European positivist language in a restrictive, negative sense. I approve. Article 26 maintains the existing law of both the pre-war government and the CPA, unless explicitly rescinded. Article 27 establishes the armed forces, and limits militias and so on. That's a hard row to how – good luck there, guys.
The Iraqi Transitional Government shall have exclusive competence in the following matters:
Chapter Four lays out the National Assembly, a 275-member legislature with language about gender and ethnic balance. I don't generally approve of that sort of quota-chasing, but whatever. Members have to be over thirty, no Ba'athists of a certain rank or higher, but with exemption "pursuant to the applicable legal rules". Lots of additional requirements – no profiteers, no oppressors, a secondary-education completion requirement, no currently-serving soldiers. In general, a much more stringent set of requirements than that for US Representative. Considering how often literal crooks and scam artists make their way into Congress, I can't say I blame the framers of this constitution. In general, Chapter Four lays out a strong legislature, with full protection against prosecution of individual members.
Chapter Five lays out the executive, in three parts – a Presidency Council, a Council of Ministers, and a presiding Prime Minister. The Presidency Council consists of a President of the State and two deputies, all elected from the National Assembly. This is something of an inversion of the usual President/Prime Minister formulation. President must be 40, good reputation, not a current Baathist or a participant in the suppression of the 1991 intifada or the Anfal campaign of 1988, and meet all the conditions of membership in the National Assembly. Rumor has it that this Presidency Council, with a rumored deal for ethnically-based composition of the President and two deputies, was part of the fuss over the initial postponement of the signing.
The Presidency Council has veto power over legislation, and can be overridden by the usual two-thirds majority. The Prime Minister is named by the Presidency Council. Same qualifications as the members of the Presidency Council except he can be 35. They will also name the members of the Council of Ministers, in consultation with the Prime Minister. So, the Council of Ministers is a sort of cabinet, except that they owe their appointments to the Presidency Council, instead of directly to the Prime Minister. The Council of Ministers don't seem to have any sort of en banc authority, except in the appointment of diplomats for treaty negotiation purposes. The Presidency Council seems to have strong authority over judicial appointments – the Assembly doesn't seem to have any approval checks-and-balances on judicial matters. They do, however, have such confirmation power over the chiefs of staff for the military and the intelligence branches. I'm not sure what I think of that – this might be the experience of a country with a bloody history of coups and conspiracies speaking, here.
The ministers are responsible to the Assembly via the usual practice of votes of no confidence, same as any parliamentary system. The Prime Minister is additionally responsible to the Presidency Council, and may be dismissed at any time. The Prime Minister is head of government, with the Presidency Council being a much stronger head of state than, say, their equivalents in the UK or Australia, as I understand it.
Chapter Six establishes a judicial authority with explicitly established political and administrative independence from the executive. The Federal Supreme Court will be selected by a Higher Juridical Council and approved by the Presidency Council. So the Presidency Council has the authority given the Senate in the American system – approval, but not selection power. The Juridical Council is composed from the heads of various courts. This makes the Judical branch much, much more independent than in the American system. I think this is probably a mistake. It's going to make the courts much more headstrong and aggressive in dealing with the legislature and executive. There is a provision for impeachment, but it's by the executive, not the legislative branch. That could restraint the judicial branch, or alternatively, breed a series of violent clashes by sending the two aristocratic branches up head-to-head against each other.
Chapter Seven establishes a Special Tribunal and commissions for de-Baathification, property claims, and so on. This is the sort of thing that is OK in a transitional document, but would be inappropriate for a permanent constitution.
Chapter Eight is on sub-federal governments – "Regions, Governorates, and Municipalities". The Kurdish enclave is explicitly recognized as a Regional Government covering five governorates. It provides for formation of additional regions of "not more than three governorates" by agreement between the governorates. The Kurdish Regional Government (KRG) has police and tax authority within its governorates. The document recognizes a Kurdish National Assembly as a legislative authority within that region, where it does not clash with the "exclusive competence of the federal government". Governorates have the right to form a Council, name a Governor, and form municipal and local councils. So sub-governorate governments are the creatures of the governorates – it's similar to the American state model. Not exactly, though. The officers of the governorates and local governments are protected from arbitrary appointment and dismissal by the federal government, excepting conviction of crimes and so on. But there's no provision for legal personhood for the governorates, and thus they technically seem to be creatures of the central state, unlike American states, which are legal persons in their own right. There's some funding confusion going on with the governorates – they're supposed to be funded from the central authority, but they also have local tax authority. They're also both supposed to implement federal laws and projects, and run their own. It's a bit of a muddle. It gets really confusing with Article 57, which is looks like a states-rights provision in a system without actual states. The rest of Chapter Eight is concerned with transitional commission issues and the Kirkuk repatriation tangle.
The Ninth Chapter concerns arrangements for codifying and ratifying a permanent constitution, with "outs" if the first few rounds of framing doesn't result in successful ratification.
All in all, not too terrible. It could work, and it could work long-term, with modifications. The real problem is the confusion going on between regions, governorates, and the central state. The framers are interested in a federal system, but Iraq has traditionally had a strong central state. This first attempt at federalism is somewhat anarchic, as it's providing for a sort of haphazard decentralization without establishing the necessary states. The "region" section seems to be moving in the direction of integral, self-defined "states" – multi-governorate regions which might achieve a sort of legal personality. It seems to be a recognition that the governorates are not legal persons, and are creatures of the central state. This is especially muddled by the ratification criteria – "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" – which uses the governorate system in a fashion similar to the American provision for ratification by nine states. My guess is that the eventual permanent constitution is going to get rid of the governorates in favor of these nebulous regions.