March 08, 2004

The Iraqi Constitution

The CPA has published an English translation of the interim Iraqi Constitution. I've been reading it, and there's a lot to like.

Article 4 is particularly encouraging, as it sets out the nature of the future Iraq government in such a way as to provide a stable representative form. In addition, there is an explicit rejection (found sprinkled in different forms throughout the document) of various ways of dividing the Iraqis in nationalist of fundamentalist ways.

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 [sic], 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.

The federal nature is spelled out clearly later (Chapter 8). The key summary is this: "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 7, paragraph A is interesting, too. It is an attempt to acknowledge Islam's importance in Iraq without enslaving the government to the religious decrees of clerics. Note that the "principles of democracy" and "the rights cited in Chapter Two" (more on which later) are given equal weight with the tenets of Islam, such that Shari'a could not be imposed under this document. Also, note that the phrase is "the universally agreed tenets of Islam", which further lessens the chances of a fundamentalist takeover of the lawmaking mechanism.

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.

Article 7, Paragraph B is a little confusing to me: "Iraq is a country of many nationalities, and the Arab people in Iraq are an inseparable part of the Arab nation." I don't understand the subtleties of Arabic, and I suspect that there is something implied in this paragraph that I need to understand. Help from an Arabic speaker would be appreciated.

Article 12 lays down the fundamental rule of law, and equality before the law:

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.

This provision is, as far as I know, unique in the Arab world. And it's a good and necessary provision for individual freedom to be possible.

Article 13 prevents the government from suppressing criticism of itself, as well as providing for a number of basic rights. It should be noted though that these are positive rights, granted by the Iraqi Constitution, not negative statements preventing the government from abrogating rights. There is actually a mix of positive and negative language in the Constitution as it is written.

(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 could be troubling to Iraq over the long term. What this article essentially does is to create a civil right to be nannied by the government. Should Iraq become quite prosperous, and birth rates decline as a result, and should this provision be carried forward into the permanent Constitution, then Iraq could face a situation where (notwithstanding the "within the limits of their resources" clause) a constitutional crisis would arise from this language clashing with material reality.

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.

The really cool thing about this is that I'm looking at the Constitution for an Arab government quibbling about how a particular clause might effect the finances of the government in 50 years, rather than noting the total absence of rights - that is encouraging.

Article 15 concerns the application of the rule of law, and in particular limits government powers to arbitrarily punish people. What's most interesting to me, though, after the broad outline is suitably drawn, is that the rights being granted arise from private property rights, which are the fundamental rights which must exist for prosperity to take hold. And since prosperity almost always leads fairly directly to political freedom, property rights are the foundation of a free society. Here is paragraph (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.

Article 16 makes this more explicit. While I'm not a fan of eminent domain in the first place, the property protection provided here is superior to that in most of the world, and effectively equivalent to the property rights guarantees in the US.

(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.

The most troubling part of the Constitution, with the possible exception of the Article 7, Paragraph B language, is contained in Article 17.

It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in accordance with the law.

Effectively, the Iraqi government has the power to disarm the Iraqi citizens, and thus to prevent the last refuge of freedom: defense of the self against the depredations of government agents. This is far more problematic in places where government agents have recently been predatory than in settled nations where the rule of law is well established, and Iraq is certainly more in the former than the latter category. Hopefully, this language will not be in the permanent Constitution

Article 22 is excellent, because it gives individuals and groups the ability to directly sue government officials who violate their rights, and be compensated personally by that government official if he was not acting in good faith.

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.

The rest of the document is concerned with the structure of government, and limitations on the powers of government:

The armed forces are placed under civilian control, and serving members of the armed forces or Defense Ministry are prohibited from running for office.
The government maintains a monopoly on organized armed forces. (I suspect that this effectively outlaws militias, which is likely not a good thing, particularly in combination with the aforementioned ability of the government to control gun ownership.)

Government officers, legislators and jurists cannot simultaneously hold multiple offices.

The National Assembly (legislature) is given oversight of the executive. These powers are well-defined: "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."

Laws must be gazetted before taking effect.

"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."

De-Ba'athification is constitutionally required. Former members of the Ba'ath at any but a quite junior level may not serve in the new government, and even junior Ba'ath members would have to disavow in writing any loyalty to the Ba'ath party. Members of the security services ("the former agencies of repression") are barred no matter what their duties or Ba'ath party level were.

Provisions exist to ensure that members of the Assembly will have foreknowledge of a bill (multiple readings, time requirements between introduction and voting, etc).

"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."

The executive authority is divided among three persons/bodies: a Presidency Council, a Council of Ministers and a Prime Minister.

The Presidency Council is a three-member body, chosen by the National Assembly, which wields the authority of the State by unanimous agreement. Aside from the ceremonial purposes of the State, the Presidency Council can veto legislation, appoint the Prime Minister and ministers of the Council of Ministers (all subject to ratification by the National Assembly), and appoint the members of the Federal Supreme Court. Note that the Council is chosen by the Assembly, but is not subject to exercising its power only while retaining the confidence of the Assembly (as is common with parliamentary systems). The Assembly can remove the members of the Presidency Council, but to do so requires a supermajority. The Council can effectively derail treaties, but cannot ratify them (that power falls to the Assembly).

The Prime Minister is the head of government, and commander in chief of the armed forces for operational purposes (with the ceremonial duties being undertaken by the Presidency Council). Unlike the Presidency Council, the Prime Minister and Council of Ministers serve at the pleasure of the Assembly (and for that matter at the pleasure of the Presidency Council - it will be easy to get rid of an underperforming minister).

The Council of Ministers has the power to appoint general officers in the armed forces and the Director-General of the National Intelligence Service, subject to agreement by the Assembly. The ministers, in addition to heading up the various departments their portfolios empower them to lead, also have the power to nominate ambassadors (subject to the approval of the Presidency Council).

The judiciary is independent: "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."

The powers and jurisdiction of the Federal Supreme Court are similar to those in practice held by the US Supreme Court (such as the ability to nullify law), except that they are here made explicit. Unlike the SCOTUS, the Federal Supreme Court has the power to enforce its decisions without recourse to lower courts or executive authorities.

A "Higher Judicial Council", consisting of several important judges, supervises the court system, and nominates members to the bench (three per vacancy). The Presidential Council appoints from those nominated, or rejects the slate entirely, in which case the Higher Judicial Council has to submit a new slate.

Local and regional court decisions are only subject to federal review on the grounds of violating federal law or the Constitution.

The Special Tribunal (to examine war crimes by the Hussein regime) is confirmed as-is, as are certain other commissions erected to do one-time jobs (like de-Ba'athification).

Chapter 8 lays out the federal nature of Iraq, starting with this key summary:

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.

Minority rights are protected. The Kurdish government in place in the North is codified into the lawful regional government of the six governorates currently under Kurdish control. "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 [exclusive competencies of the federal government] and 43(D) [establishment of regional courts], above."

A base level of regional and governorate funding comes from the national government, and the regions and governorates can increase their funding by levying local taxes.

Except for the exclusive competencies of the federal government (which are fairly limited), power is devolved to the regions and locales. The powers reserved to the federal government are, basically, foreign and trade policy; national security; fiscal policy, including chartering a commercial bank and regulating commerce across internal political boundaries; regulating weights and measures; regulating wages (I assume they intend a minimum wage, rather than the setting of all wages, given the other provisions of the document); managing the natural resources; regulating citizenship, immigration and asylum, and regulating telecommunications policy. All in all, these are fairly limited powers, and everything else is left up to subordinate jurisdictions.

Procedures are put in place for redressing serious problems caused by the Hussein regime.

Provisions are made for the drafting of a permanent Constitution.

Taken together, this is a fine document. There are some places where long-term worries would exist, but this is not intended to be a long-term Constitution. Let's put it this way, I could live under this Constitution, with the sole exception of the granting of powers to the Federal government to regulate gun ownership.

UPDATE (3/10): Steven Den Beste analyzes Iraq's Constitution, with a strong focus on the executive branch, and some emergent properties of the Iraqi Constitution.

Posted by Jeff at March 8, 2004 04:16 PM | Link Cosmos
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