Commentary and analysis, 7/8 March 2004
Professor of Political Science and
International Affairs
The
UPDATE (added 30 December 2005): Some subsequent writings on Iraqi
constitutional developments are available on the website
of the Carnegie Endowment for International Peace and on my personal webpage.
NOTE (added 11 June 2004): With virtually no publicity, the Iraqi
Governing Council approved an annex to this document immediately before
abolishing itself on 1 June 2004. The
annex may be viewed here
in English and here in
Arabic. (The CPA’s posting of the
text in both languages in unusual; generally legal enactments are translated
into Arabic only after considerable delay.
Some internal evidence suggests that the annex was at least partially
drafted in English, though it presents itself solely as an enactment of the
Governing Council). The CPA also
provides its own analysis of the
annex.
BACKGROUND: On 1 March
2004, two days after the deadline specified in the 15 November 2003 agreement
between the Coalition Provisional Authority (CPA) and the Iraqi Governing
Council (IGC), the IGC announced that it had completed and approved the
“Transitional Administrative Law,” an interim constitution to govern Iraq following
the restoration of sovereignty on 30 June 2004 until a permanent constitution
is adopted.
The
IGC has been wrestling with constitutional issues almost since its creation (an
excellent review of the issues as of November 2003 is available from the International
Crisis Group; a very interesting, theoretically-informed
discussion by Andrew Arato—based on the now superseded January draft—is
still quite worth reading.). Initially,
the Council formed a committee to recommend mechanisms for constitution
drafting. Its report was due in September
2003. While I do not believe that the
committee’s report has been made public, it was reportedly unable to develop a
definitive recommendation. The work of
the committee was superseded by the agreement
reached on 15 November 2003 between the Coalition Provisional Authority and
the Iraqi Governing Council. That
agreement required the Council to approve a “Transitional Administrative Law”
by the end of February 2004. Such a law
would make possible “local caucuses” by the end of May; the convening of a
“Transitional National Assembly” based on those caucuses; the dissolution of
the Iraqi Governing Council and the Coalition Provisional Authority; and the
restoration of Iraqi sovereignty by the end of June 2004. Elections for a constituent assembly would
follow in 2005; that body would quickly write and seek ratification of a
permanent constitution; and elections would be held under the new constitution
by the end of 2005.
That
plan broke down under international and domestic pressure and was finally
abandoned. The effort to write the
Transitional Administrative Law survived.
The 1 March 2004 announcement that the IGC had agreed on a draft turned
out to be an exaggeration, however. It
later became clear that not all the language was complete and that English and
Arabic drafts had to be reconciled and reviewed. On 5 March the IGC was to meet to approve the
final document, but some members raised objections and the signing was
postponed until 8 March.
TEXT: While several interim
drafts leaked to the press, neither the IGC nor the CPA reported extensively on
the efforts to write the Law. Not
until 7 March 2004 did the London-based
Arabic daily Al-Sharq al-Awsat publish a complete
text. The next day, on March 8—and
only after the signing had been completed—an official copy was released. The CPA has posted English text.
I
include some commentary on the provisions of the Law below. I previously posted a translation
and commentary for an earlier draft.
As far as I know, no other translation of that earlier draft is publicly
available. While I am gratified to have
provided a service by posting the translation and commentary, my experience
with that draft leads me to ask users to read fairly carefully. Some of my comments were apparently used in a letter
to US National Security Advisor Condaleeza Rice signed by four United States
Senators. I do not know who drafted
that letter, but the person(s) responsible managed to garble some of the
information in a manner that I might charitably describe as unhelpful. The letter mixed some very legitimate
concerns about religious freedom with hyperbolic and misleading statements (and
at least one falsehood).
SECURITY: One issue
largely overlooked in press discussions of the law has been the matter of
security arrangements after the restoration of Iraqi sovereignty on 30 June
2004. The final text of the Law
confronts the issue in an unexpected way.
The
15 November agreement and early drafts of the Law provided that the CPA and IGC
would negotiate security arrangements and then present them for adoption to the
transitional parliament. The
transitional parliament was to meet prior to the restoration of Iraqi
sovereignty on 30 June 2004 to approve the arrangements. No provision was made for rejection or even
renegotiation of the arrangements: implicitly, the newly-seated parliament was
to be given the choice of accepting arrangements it had not negotiated or
delaying restoration of sovereignty.
This plan became untenable when the IGC made clear it was no longer
willing to negotiate the matter with the CPA.
This left the possibility that on June 30, American and other coalition
forces may be occupying a country with a sovereign government without the
agreement of that government—a situation that might be awkward both politically
and legally.
The
solution found to this problem in Article 59 (see the commentary below) is
ingenious but also audacious and might provoke controversy.
COMMENTARY
The
Law has a preamble, something missing from initial drafts. Moreover, Article 1 makes the principles
enunciated in the preamble an integral part of the constitution. These two features suggest that the authors
hope that their effort will survive the expiration of the transitional period
and be adopted in the permanent constitution.
Making the principles of the preamble an integral part of the
constitution is designed to influence the course of constitutional
interpretation and jurisprudence (and perhaps guide a constitutional court in
interpreting some of the document’s provisions). If a permanent constitution is adopted by the
end of next year, there is unlikely to be enough time to develop traditions of
constitutional interpretation. Thus, I
believe that the authors view many of the document’s provisions as primarily
aspirational and designed to guide the writing of the permanent constitution
rather than have any immediate effect.
The
document specifies that the use of the masculine includes the feminine. (Arabic is a much more strongly gendered
language than English, and nouns, verbs, and adjectives all indicate
gender. The masculine is generally used
not only for men but also for cases in which gender is unspecified.) Thus, this provision makes explicit what
might otherwise be only implicit: that every reference to an “Iraqi,”
“citizen,” or “individual” in the masculine refers to women as well as
men. This provision seems to be adopted
from the draft constitution for a Palestinian state. Juan Cole and Shahin Cole have written a general
analysis on gender issues related to the constitution.
The
15 November agreement between the IGC and the CPA provided for an ambitious
timetable not simply for the transfer of sovereignty to an Iraqi government but
also for the composition of an Iraqi constitution, to be completed by December
2005. That agreement—and initial drafts
of the Law—contained no provisions for a failure to meet the timetable. As finally written, article 2 of the law
maintains the original timetable but also refers to article 61, which allows
for a single six-month extension if the constitution is either rejected or if
drafting proceeds too slowly.
Earlier
drafts focused great attention on the process of selecting members of a
transitional national assembly and constituent assembly. The procedures drafted ran into problems
connected with the IGC’s and CPA’s legitimacy:
a transitional assembly was to be selected through a vaguely-specified
caucus system that convinced few Iraqis or international observers that it
would be immune to manipulation. And
since that assembly would draft a law for electing a constituent assembly, the
latter body was indirectly tainted as well.
The final draft omits many of these provisions. Instead, it has a temporary sovereign
government composed by the CPA and IGC, acting in consultation with the Iraqi
people and perhaps with the United Nations.
Following the composition of that government, elections for a national
assembly will be held by 31 January 2005 at the latest.
The
15 November agreement as well as earlier drafts of the Law barred
amendment. That position is no longer
tenable because some of the governance provisions have not yet been written and
thus the document will necessarily be amended—as articles 2 and 3 of the Law
acknowledge. Thus, Article 3 is forced
to provide for a limited amendment procedure.
The
provisions on federalism here are very general and are given meaning by other
articles.
The
insistence on civilian control of the military Iraqi military is recognition
that army intervention in politics has a long history in
This
article promises restorative justice. Delivering
on that promise will raise many difficult issues, some of which are addressed
in article 58.
The
formula for Islam and Islamic law has provoked great international and domestic
controversy. The final version of the
Law represents a compromise between those who wished to have Islam serve as “a
source” and those who wished it to be “the primary source” of legislation. However, absent any provisions for
determining authoritative interpretations of the shari‘a, it is not clear
whether any of these provisions would have any practical legal effect:
·
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.
·
Providing that Islam is “a source” of legislation is
vague indeed. Other Arab constitutions
refer to “the principles of Islamic law,” but the Iraqi Law refers only to
Islam. More important, the clause would
seem to be an injunction to legislators to consult Islamic law but not to bind
them to it, much less to any particular interpretation.
·
The article also bars passing a law that contradicts
with aspects of Islamic law that are definite and affirmed by consensus. But this prohibition applies only to the
interim period, and thus older legislation is left standing. And given over one thousand years of Islamic
legal thought and argumentation, as well as
·
More generally, 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 at most lend symbolic support to those
who call for a greater measure of Islamic legal influence.
·
The article also bars any legislation that contradicts
the rights mentioned elsewhere in the Law.
This seems to be a strange nod in the direction of those who feared the
language on Islam would somehow negate the rights provisions. I describe the language as strange because of
its obvious redundancy: affirming the rights provisions in this manner adds
nothing to their effectiveness. This
language in article 4 simply affirms rights that are affirmed elsewhere. In sum, the language of this article seems to
say that it is unconstitutional to pass an unconstitutional law.
More
interestingly, the article also places religious freedoms on an individual
rather than communal basis, unlike initial drafts. This may be partly a response to the rather
lurid letter from four American senators I referred to in the introduction to
this commentary. And indeed,
religious freedom in Arab states is often placed on a communal rather than
individual basis (though the claims of the letter made the point in a
misleading way). This article thus
represents a possible departure in regional conceptions of religious freedom.
The
article also proclaims
The
detailed nature of this article would turn
This
article may attract attention because, if I read the implications correctly, it
seems to offer to restore the citizenship of Iraqi Jews who left the country
after 1948. I would be surprised if many
accepted the offer, however, and it does not seem that the right would pass on
to descendants. Far more significant,
therefore, is the article’s effect on Iraqi Shi‘a whom the Ba‘thist government
stripped of citizenship rights. The call
in the article for the National Assembly to issue the necessary legislation may
mean that these constitutional rights will not be effective until such
legislation is passed, though I am not certain that this is the intention of
the article.
An
earlier provision to guarantee both fathers and mothers the right to pass on
Iraqi citizenship seems to have been removed.
The
provision for gender equality is very generous.
Indeed, it is far more generous than in the
Much
press comment has parroted the claim that the Law provides for a bill of rights
unprecedented in the region. This is an
exaggeration: by the standards of the Arab world, the rights provisions are not
particularly extensive. What is
innovative is the number of rights that are absolute, not depending on
implementing legislation. The language
here is often quite carefully drafted to close loopholes.
However,
some of the rights do operate in accordance with law. While such language is common in Arab
constitutional texts, it is not necessarily problematic if the implementing
legislation is itself liberal (indeed, the formula of defining rights in
legislation is often followed in
The
inclusion of some social and economic rights is standard in the region, though
the Iraqi Law introduces a measure of realism with its provision that
governmental units guarantee them within the bounds of their abilities—in
general, comparable constitutional provisions elsewhere are interpreted as
aspirational guidance given to political leaders, a formula the Iraqi Law follows
explicitly rather than implicitly.
The
provisions for searches, detentions, and trials are unusually detailed,
undoubtedly informed by
Constitutional
protection of working with international NGOs is a much-needed innovation.
The
language here seems inspired by the Ninth Amendment to the
The
specification of the duties of the federal government is more detailed than in
previous drafts; the language that would govern oil revenues seems to be a
compromise formula. The result does
seem to be a genuine federal system, though given the importance of oil
revenues in supporting all government functions in
This is a significant article in three respects:
·
In affirming the legislation in place as of June 30,
the Law answers the question—left open in initial drafts—of the status of CPA
legislation. Presumably, IGC legislation
would take effect only if it gained CPA approval prior to June 30.
·
This is made more specific by the final clause, which
specifically provides for the continued effectiveness CPA legislation taken on
the basis of its authority by virtue of international law. This formula leaves a potential loophole here, though I cannot
see it being used in the transitional period.
The CPA has issued a wide variety of legal enactments, and a very bold
Iraqi court might hold that the CPA exceeded the bounds of international law. Such a position would not be
implausible. The 1907 Hague convention—which
the CPA avoids citing in its legal enactments, preferring the more generally
worded UN Security Council resolutions—states “The authority of the legitimate
power having in fact passed into the hands of the occupant, the latter shall
take all the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country.” The CPA
seems to subscribe to a fairly broad interpretation of what it means to be
“absolutely prevented” from respecting laws in force. Indeed, one might be able to contest the
legality of the Law itself—a product of a CPA-managed process—on such
grounds. The resulting constitutional
and legal chaos makes such a position politically unlikely.
·
Allowing federal legislation to trump that of
provincial and regional bodies is a significant marker of a federal (rather
than confederal) system, though the language here is hardly unqualified.
Barring
militias not formed in accordance with a law (and specifically a federal law)
is a very significant step, but also provokes a very difficult problem: in the
absence of a federal law, such forces would seem to be illegal. If so, the prospects of writing and passing
legislation would seem to be unlikely by June 30. Yet disbanding such militias would raise
considerable difficulties at present.
The
language in the article regulating intelligence forces is general, but mere
mention of the subject is innovative.
The most significant element is probably the insistence on parliamentary
oversight; I know of no Arab state in which such a parliamentary role has ever
been successfully asserted.
This
is an interesting symbolic step (though probably only symbolic): the Law essentially is asserting a right to
proclaim the dissolution of the CPA, and the CPA—by approving the Law—is
implicitly acknowledging that right.
This reverses the legal, chronological, and political relationship
between the structures created by the Law and the CPA.
While
the detailed provisions for selecting members of the Assembly present in
earlier drafts have been removed, the final text of the Law appears to be far
more detailed on the operations of, and relations among, various constitutional
structures. Indeed, earlier drafts were
often conspicuously silent on such fundamental questions as who may introduce
legislation. The final text of the Law
is far more explicit, generally establishing a parliamentary system (though the
presidency is more than a symbolic office).
Interestingly, the name of the assembly has been changed from
“Transitional Assembly” in earlier drafts to “National Assembly” in the final
text.
Much
press speculation centered on whether the matter of representation for women
was a quota or a goal. To my reading,
the final language could be read either way; the matter is essentially referred
to the elections law.
Provisions
for membership in the Assembly are quite detailed on the issue of
de-Ba‘thification. But the requirement
that members have a good reputation seems problematically vague. The education requirement—that members have a
secondary school degree or its equivalent—may be partly aimed at older tribal
leaders. Interestingly,
While
most Arab constitutions allow the interpellation of ministers, this Law extends
that right to members of the presidency.
The
introduction of a prime minister alongside a presidency could make for a
complicated system, though it should not be confused with a 5th-Republic
arrangement since the Assembly itself selects the members of the presidency.
The
language here seems to imply that the members of the presidency are not
politically responsible to the Assembly after their election, though they may
be removed for questions regarding their competence and integrity. Since the decisions of the presidency are
made by consensus, it is not clear that identifying one as president and the
other two as deputies has any practical meaning.
There
is no requirement that the prime minister or ministers be members of the
Assembly.
Allowing
the presidency—even if it acts upon the recommendation of he judicial
council—the authority to appoint members of the Supreme Court is a diminution
of independence of the judiciary, even when compared to
I
believe it is unprecedented in Arab governance to remove the Ministry of
Justice from all administrative matters involving the judiciary. However,
administration is not defined. If this
were to be fully implemented, it might involving transferring oversight of a
wide variety of functions to the Judicial Council (such as budgeting,
relationship with other branches of government, and nonjudicial court
personnel). While Judicial Councils are
quite widespread in Arab governance, few would have the administrative capacity
to oversee such a wide range of tasks, and the Iraqi Judicial Council—only
recently reformed by the CPA—would likely need tremendous assistance. I may be reading too much into the
administrative autonomy provision, but it seems to me to be potentially far
reaching. Since many Arab executives
dominate the judiciary through their extensive administrative roles rather than
through heavy-handed direct control, my reading—if correct—implies a major step
toward true judicial independence.
The
Supreme Court is really more of a constitutional court (a specialized body with
exclusive jurisdiction over constitutional cases) than a more general supreme
court (which generally has appellate functions). While there is a provision for appellate
functions, the next article mentions a Court of Cassation; such a body is normally
the highest appellate court for most cases.
This
article on the composition of the judicial council raises two interesting
issues. First, it refers to specific court structures without elaboration
(though Article 46 does offer some detail), thus presumably necessitating their
establishment. More specifically, it mentions a Court of Cassation that seems
to be separate from the Supreme Court but that would presumably take the latter
body’s place as the supreme court of appeals.
Second,
the judicial council mentioned in article 45 has already been established by CPA Regulation
35. The problem is that the
provisions of Article 45 conflict with those of Regulation 35. This leaves some matters unclear. Would the Judicial Council immediately be
formed in accordance with the provisions of Article 45? As opposed to an earlier draft, Article 45
now makes no mention of the need for implementing legislation. Nevertheless, since not all the courts
mentioned may now be operating, would CPA Regulation 35 operate provisionally,
even though it would be rendered unconstitutional?
This
is one more example of how carefully federal arrangements have had to be
negotiated.
The
provision for the Special Tribunal raises several issues. First, it flatly contradicts the promise of
Article 15 barring exceptional courts.
Second, this court, intended to try accused war criminals, is not merely
exceptional. It is placed completely
outside the constitution. The court in
question was established
by the IGC after being delegated
by the CPA to try those accused of atrocities and war crimes. In one sense,
the Law transfers the court to a body authorized by the CPA into a wholly Iraqi
court.
But
the Special Tribunal is no ordinary court.
In some uncomfortable ways, it resembles the political courts
established in some Arab countries in the 1950s and 1960s after a regime change
to deal with the old regime. I have no
doubt that the procedural safeguards will be far greater than in those earlier
bodies, but the political nature of the court cannot be ignored. Indeed, the language here is startling,
because the constitution does not simply recognize the IGC-established Special
Tribunal but also exempts it from any of the provisions of the
constitution. No other Iraqi courts may
be involved in cases in the jurisdiction of the Special Tribunal. The language is so sweeping, it is not clear
whether the law establishing the Tribunal may be amended under this
constitution.
The
effect of this article is to render Iraqi bodies that had been created under
the CPA.
This
article not only enshrines the status quo; it also spells it out in more detail
than did initial drafts. Subsequent
articles are the most detailed and carefully drafted in the constitution,
suggesting that the matter of the central government’s relationship with
Kurdish areas was the most complicated matter to negotiate.
The
various provisions on federalism are quite complex and it is difficult to
predict precisely how they would work.
This is partly the case because the provisions are mutually dependent
(and sometimes in tension with each other).
For a trenchant critique of the approach adopted, consult the March 8
entry in Spencer Ackerman’s Iraq’d
blog.
This
article is likely to cause considerable controversy, since it compensates for
the absence of an agreement over security arrangements in an audacious manner.
First,
the article effectively places the Iraqi military under American command (in
the form of the “unified command” of the “multinational force”). Second, it mentions UN
Security Council Resolution 1511 and effectively uses it to prolong such a
security arrangement until a permanent constitution is approved and operating.
Significantly,
of all the provisions of the draft constitution, this was the one major issue
not to leak.
The provisions for the permanent constitution are notable in several
ways:
·
They abandon the attempt in earlier drafts to
establish principles governing the permanent constitution. This seems wise, since the Law, approved by
an unelected body, would lack the legitimacy to set conditions on the actions
of the elected body writing the permanent constitution.
·
They devote more details to procedures for adopting
the constitution. Besides the
widely-noted adoption provisions involving the referendum (debate over which
led to a delay in the final signing), there are provisions for delays in the
writing of the permanent constitution.
·
The responsibility for drafting the constitution is
transferred from a specially-elected constituent assembly to the National
Assembly.