Law of Administration for the State of Iraq for the Transitional Period
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The Law of Administration for the State of Iraq for the Transitional Period is the current Iraqi constitution signed on March 8, 2004 by the Iraq Interim Governing Council. It came into effect on June 28, 2004 following the official transfer of power from the Coalition Provisional Authority (led by the United States), to a sovereign Iraqi government. It will be replaced after general elections by a permanent constitution which must be drafted by August 15, 2005 and presented to the Iraqi people for approval in a general referendum to be held no later than October 15.
The preamble begins:
- 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.
And contains further, "...affirming today their respect for international law, ... working to reclaim their legitimate place among nations,... have endeavored at the same time to preserve the unity of their homeland."
Article 2 provides for an Annex to this document, which was issued by the Interim Governing Council on 1 June 2004, before the beginning of the transitional period. The Annex forms an integral part of this Law, and for the most part clarifies aspects of the transitional and interim administration.
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Rights
Supporters lauded the constitution's guarantees of "fundamental rights":
- equality before the law (Article 12), guaranteeing the equality of all without regard to "gender, sect, opinion, belief, nationality, religion, or origin";
- freedom of religion, though Islam is stated as the state's official religion and is to be considered a source of legislation;
- freedom of speech;
- freedom of the press;
- right to privacy;
- right to a "fair, speedy, and open trial" for all accused of crimes;
- no unlawful arrest or detention;
- torture and cruel and unusual punishment are banned "under all circumstances";
- right to private property is protected.
A lengthy provision emphasizes that police, investigators, or other governmental authorities may not violate the "sanctity of private residences."
Iraqis are also guaranteed the right to "education, health care, and social security." The right to possess, bear, buy, or sell arms is subject to "licensure issued in accordance with the law."
The right to citizenship is detailed and prominent within the chapter on fundamental rights. Eight provisions govern who is and isn't a citizen. Any Iraqi whose citizenship was withdrawn for political, religious, racial, or sectarian reasons has the right to reclaim his Iraqi citizenship, and each Iraqi is guaranteed the right to carry more than one citizenship. Revolutionary Command Council Decree 666, which in 1980 banned citizenship in Iraq for Iraqis of Persian origin, is explicitly annulled.
Part of the Law of Administration's explicit rejection of Iraq's former racist policy (also explicitly referenced) is embodied in the wording "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 Law stipulates that both Arabic and Kurdish be the official languages of Iraq.
Political Structure
The constitution provides for a National Assembly, to be elected no later than January 2005. In the meantime, a transitional government will be formed, taking consultation from various sectors of Iraqi society and the United Nations.
The new government will be a democratic republic, with three separate branches of government.
The elected National Assembly will be a unicameral legislature with 275 elected members. Members will elect a President of the Assembly, who will serve as a non-voting speaker, and two deputies. The Assembly is the chief lawmaking organ, and will be required to propose and pass bills in order to make law for the country.
The Assembly will also elect a President of State who along with two deputies will form a "Presidency Council" to "represent the sovereignty of Iraq and oversee the higher affairs of the country." The council represents the executive branch of government and has the right to veto laws passed by the Assembly. The Assembly can then over-rule the Council with a two-thirds majority vote.
The Presidency Council appoints the Prime Minister of Iraq and cabinet (Council of Ministers of Iraq), all who must be approved by the Assembly. The Prime Minister and his cabinet will exercise most of the day-to-day runnings of government, including control over the armed forces. The Assembly has a right to remove the Prime Minister with a vote of no confidence.
Judiciary
Local court justices will be appointed by local governments and their "juridical councils", with the Supreme Court being appointed by the Federal Government. The Supreme Court will have nine members and possess the ability to over-turn legislation they find unconstitutional.
The constitution also establishes several "National Commissions" to investigate and address recent concerns such as human rights and war crimes.
Kurdistan and Local Government
The new constitution recognizes the current government of Kurdistan as the legitimate government of the Kurds, and allows it to continue to exist within the new federal state.
Iraq will have elected governors and "Governorate Councils" for each of its 18 provinces, as well as elected mayors and city councils for each city. Elections will be held at the same time as National Assembly elections.
Role of Shariah
Shariah is addressed in two ways: 1."Islam is the official religion of the State and is to be considered a source of legislation." But decisions according to Shariah may not abrogate articles or guarantees: 2."Any legal provision that conflicts with this Law is null and void." Thus the Law of Administration circumscribes Shariah.
De-Ba'athification
Former Ba'ath Party members who want to run for office are required to sign documents explicitly denouncing the party and denying they possess any continuing ties to the organization or its principles.
Revenue from oil
The natural resources of Iraq are explicited declared to belong to all the people of all the regions and governorates of Iraq. Their management is required to involve consultation with the governments of the regions and the administrations of the governorates. Revenue resulting from their sale through the national budget is required to be distributed in an equitable manner proportional to the distribution of population throughout the country, and with "due regard for areas that were unjustly deprived of these revenues by the previous regime."
Enforcement of Coalition-Created Laws
Section A of Article 26 of the Law of Administration reads:
- "Except as otherwise provided in this Law, the laws in force in Iraq on 30 June 2004 shall remain in effect unless and until rescinded or amended by the Iraqi Transitional Government in accordance with this Law."
This appears to permit the Transitional Government to modify coalition legislation or parts of the Law of Administration "by a three-fourths majority of the members of the National Assembly and the unanimous approval of the Presidency Council". The Transitional Government, however, may not change the transitional period or remove human rights, nor may they delay the next elections by more than six months.
Significantly, the elected Transitional Government is not bound by the clause in the Annex to the Law of Administration which prevented the appointed Interim Government from "taking any actions affecting Iraq's destiny beyond the limited interim period".
Initial response to the document
Unlike Japan's post-war constitution, which was written almost single-handedly by General Douglas MacArthur, who was commanding the occupation forces, Iraq's new interim constitution was created by Iraqi civilians. Some critics within Iraq nevertheless say administrator Paul Bremer played too large a role in its creation.
Within hours, Shi'ite leaders warned that the Law of Administration could cause problems in the long term, with one senior cleric saying a clause on federalism has the potential to provoke civil war. Federalism is addressed in Ch. 8, articles 52 - 58.
It was also noted by several commentators that, in theory, this Iraqi constitution grants more social rights than the Constitution of the United States.
External links
- Full translation into English (http://www.cpa-iraq.org/government/TAL.html)
- Translation of Annex to the Law of Administration (http://www.cpa-iraq.org/government/TAL_Annex.html)
- Iraq's transitional law under attack (http://news.bbc.co.uk/2/hi/middle_east/4359559.stm)