has had many constitution
s, though most people are probably unaware of it; from its short term as as parlimentary monarchy, to a dictatorship, to a transitional appointed government. Those older constitutions are available online and not much use today (although the transitional one is still somewhat in use today until the permanent one replaces it)
Under the TAL (Transitional Administrative Law) Constitution, members from parties elected in the 2005 election were to come together under a drafting committee and create a permanent Constitution, which must be voted upon by the Parliament and each of Iraq's 11 provinces. Any three provinces can reject the constitution by a 2/3s margin in the October 15, 2005 referendum, forcing another draft. Also, failure of the committee to submit a draft to the Parliament by August 15, 2005 will result in the dissolution of parliament and the committee and National re-elections. Due to setbacks on how the drafting committee would be staffed and disagreements amongst the ethnic groups, months went by after the 2005 elections, giving less than 3 months for the committee to draft a Constitution. Under the TAL, the committee had the ability to ask for a postponement of the deadline, but under pressure from the US and some Iraqis, they did not request one. Within 24 hours of the deadline, an amendment to the Transitional constitution was created, extending the deadline by another week, which is shaping up to be another missed deadline.
At issue are major disagreements, on large and complicated issues like Federalism; a strong central government versus a weak one with independent provinces, and the role of Islamic law in Iraq; the majority of Iraqis want to see Islamic law, but not clerical rule like Iran, and one of the issues is whether Islam is written in the Constitution as THE source of all law, or A source of law. The Shia political parties won the election overall, and wish to see Islamic law most importantly, as well as a clause in the Constitution acknowledging and respecting the Ayatollahs and the religious significance of the holy cities of Najaf and Karbala. The Kurdish parties desire independence, as their provinces were given autonomy for decades (ie. Kurdistan), and wish to see a clause allowing them to secede from Iraq by their own vote, and/or a weak central government allowing them autonomy in their provinces, as well as oil revenues from cities like Kirkuk to go to their provinces instead of to Baghdad. They're also quite secular, putting them at odds with the Shia and Sunni Arab religious parties. The Sunni Arab parties, which were grossly underrepresented in the election and make up a minority of parliament as well as the committee, desire a strong central government, because if oil revenues only went to their respective provinces, the Sunni areas would become dirt poor. Many Sunnis also object to the clause that bans the Ba'ath party, as a great deal of Sunnis were Ba'ath members and have suffered discrimination despite being only inactive party members (the government under Saddam Hussein was a one-party government).
The following is an english translation (via Associated Press) of the draft Iraqi Constitution. (AP published a translation of the early draft as well as the final submitted for approval, the changes are merged here) Unfortunately, the Constitution is a legal document, so translation is difficult and the words can have multiple meanings.
Analysis is available all over the internet, and I'll give you an earful if you /msg me. Juan Cole and Iraqi blogger riverbend have reminded us that there was a bit of confusion over which circulated draft was actually sent to the UN and reprinted. (There were 2 different Arabic constitutions and a Kurdish one floating around, but only a few clauses and articles are missing.) She reports that over half of the Constitution's "rights and freedoms" section is lifted from the original temporary Constitution of 1970 (which was also the constitution that was used, or disobeyed by the Saddam Hussein regime). Also, numerous pieces were edited out, like the former Article 16 that forbade Iraq from having foreign military bases on its land or allowing the country to be used as a base or corridor for foreign troops.
Source: Associated Press translation. URL: http://www.nytimes.com/2005/08/28/international/iraqtext_new.html?pagewanted=all
Table of Contents:
1. Basic Principles
2. Rights and Freedoms
3. The Federal Authorities
4. Powers of the Federal Authorities
5. Authorities of the Regions
6. Final and Transitional Guidelines
In the name of God, the Compassionate, the Merciful
"Verily we have honored the children of Adam
We the sons of Mesopotamia
, land of the messengers, prophets
, resting place of the holy imam
s, the leaders of civilization
and the creators of the alphabet
, the cradle of arithmetic
: on our land, the first law put in place by mankind was written; in our nation, the most noble era of justice in the politics of nations was laid down; on our soil, the followers of the prophet
and the saints prayed, the philosophers and the scientists theorized and the writers and poets created.
Recognizing God's right upon us; obeying the call of our nation and our citizens; responding to the call of our religious and national leaders and our national forces and politicians and the insistence of our great religious authorities and our leaders and our reformers, we went by the millions for the first time in our history to the ballot box, men and women, young and old, on Jan. 30, 2005, remembering the pains of the despotic band's sectarian oppression of the majority; inspired by the suffering of Iraq
, and the remaining brethren in all communities -- inspired by the injustice against the holy cities and the south in the popular uprising and against the marshes and other places burnt with the sorrows of the mass graves, the marches and Dujail and others; recalling the agonies of the national oppression in the massacres of Halabja, Barzan, Anfal and against the Faili Kurds; inspired by the tragedies of the Turkomen in Bashir, and as in other parts of Iraq, the people of the western region have suffered from the liquidation of its leaders, symbols, tribal leaders and displacing its intellectuals, so we worked hand in hand and shoulder to shoulder to create a new Iraq, Iraq of the future, without sectarianism, racial strife, regionalism, discrimination and elimination.
Terrorism and "takfir
" (declaring someone a nonbeliever) did not divert us from moving forward to build a nation of law. Sectarianism and racism did not stop us from marching together to strengthen our national unity, set ways to peacefully transfer power, adopt a manner to fairly distribute wealth and give equal opportunity to all.
We the people of Iraq
, newly arisen from our disasters and looking with confidence to the future through a democratic, federal
system, are determined -- men and women, old and young -- to respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism.
We are the people of Iraq
, who in all our forms and groupings undertake to establish our union freely and by choice, to learn yesterday's lessons for tomorrow, and to write down this permanent constitution from the high values and ideals of the heavenly messages and the developments of science and human civilization, and to adhere to this constitution
, which shall preserve for Iraq its free union of people, land and sovereignty.
CHAPTER ONE: BASIC PRINCIPLES
Article (1): The Republic of Iraq is an independent, sovereign
nation, and the system of rule in it is a democratic, federal, representative (parliamentary) republic.
1st -- Islam
is the official religion of the state and is a basic source of legislation:
- No law can be passed that contradicts the undisputed rules of Islam.
- No law can be passed that contradicts the principles of democracy.
- No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.
2nd -- This constitution guarantees 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 like Christians, Yazidis, Sabaean Mandeans.
Article (3): Iraq
is a multiethnic, multi-religious and multi-sect country. It is part of the Islamic world and its Arab
people are part of the Arab
1st -- Arabic
are the two official languages for Iraq
. Iraqis are guaranteed the right to educate their children in their mother tongues, such as Turkomen
, in government educational institutions, or any other language in private educational institutions, according to educational regulations.
2nd -- the scope of the phrase "official language
" and the manner of implementing the rules of this article will be defined by a law that includes:
- issuing the official gazette in both languages.
- speaking, addressing and expressing in official domains, like the parliament, Cabinet, courts and official conferences, in either of the two languages.
- recognition of official documents and correspondences in the two languages and the issuing of official documents in them both.
- the opening of schools in the two languages in accordance with educational rules.
- any other realms that require the principle of equality, such as currency bills, passports, stamps.
3rd -- Federal agencies and institutions in the region of Kurdistan
use both languages.
4th -- The Turkomen
(are two other languages that will be official in administrative areas where those groups are located in large numbers.
5th -- Any region or province can take a local language as an additional official language if a majority of the population approves in a universal referendum.
Article (5): The law is sovereign
, the people are the source of authority and its legitimacy, which they exercise through direct, secret ballot
and its constitutional institutions.
Article (6): Government should be rotated peacefully through democratic means stipulated in this constitution
1st -- Entities or trends that advocate, instigate
, justify or propagate racism, terrorism, "takfir" (declaring someone a nonbeliever), sectarian cleansing, are banned, especially the Saddamist Ba'ath
and its symbols, under any name. It will be not be allowed to be part of the multilateral political system in Iraq
, which should be defined according to the law.
2nd -- The state will be committing to fighting terrorism in all its forms and will work to prevent its territory from being a base or corridor or an arena for its (terrorism's) activities.
Article (8): Iraq shall abide by the principles of good neighborliness and by not intervening in the internal affairs of the other countries, and it shall seek to peacefully resolve conflicts and shall establish its relations on the basis of shared interests and similar treatment and shall respect its international obligations.
- The Iraqi armed forces and security apparatuses consist of the components of the Iraqi people, keeping in consideration their balance and representation without discrimination or exclusion. They fall under the command of the civil authority, defend Iraq, don't act as a tool of oppression of the Iraqi people, don't intervene in political affairs and they play no role in the rotation of power.
- Forming military militias outside the framework of the armed forces is banned.
- The Iraqi armed forces and its personnel -- including military personnel working in the Defense Ministry and in any offices or organizations subordinate to it -- are not allowed to run as candidates in elections for political office. They should not engage in election campaigning for candidates and should not take part in activities forbidden by the regulations of the Defense Ministry. This ban includes the activities of the previously mentioned individuals acting in their personal or professional capacities, but does not include their right to vote in the elections.
- The Iraqi national intelligence service shall gather information and assess threats to national security and offers advice to the Iraqi government. It is under civilian control; it is subjected to the supervision of the executive authority; it operates according to the law and to recognized human rights principles.
- The Iraqi government shall respect and implement Iraq's international commitments regarding the nonproliferation, non-development, non-production, and non-use of nuclear, chemical, and biological weapons. Associated equipment, material, technologies, and communications systems for use in the development, manufacture, production, and use of such weapons shall be banned.
2nd -- Military service shall be regulated by a law.
Article (10): The holy shrine
s and religious sites in Iraq are religious and cultural entities. The state is committed to maintain and protect their sanctity and ensure the exercising of (religious) rites freely in them.
Article (11): Baghdad
is the capital
of the republic of Iraq
1st -- The flag
and national anthem of Iraq
shall be fixed by law in a way that symbolizes the components of the Iraqi people.
2nd -- Medals, official holidays, religious and national occasions and the Islamic and Christian calendars shall be fixed by law.
1st -- This constitution shall be considered as the supreme and highest law in Iraq
. It shall be binding throughout the whole country without exceptions.
2nd -- No law that contradicts this constitution shall be passed; any passage in the regional constitutions and any other legal passages that contradict this constitution shall be considered null.
CHAPTER TWO: RIGHTS AND FREEDOMS
PART ONE: RIGHTS
FIRST: Civil and political rights.
Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.
Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body.
Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
1st -- Each person has the right to personal privacy as long as it does not violate the rights of others or general morality.
2nd -- The sanctity of the home is protected. They cannot be entered or searched or violated except by judicial decision and in accordance with the law.
1st -- An Iraqi is anyone who has been born to an Iraqi father or an Iraqi mother.
2nd -- Iraqi nationality is a right to all Iraqis and it is the basis of their citizenship.
- It shall be forbidden to withdraw the Iraqi citizenship from an Iraqi by birth for any reason. Those who have had their citizenship withdrawn have the right to reclaim it and this should be regulated by law.
- Iraqi citizenship shall be withdrawn from naturalized citizens in cases stated by law.
4th -- Every Iraqi has the right to carry more than one citizenship. Those who take a leading or high-level security position must give up any other citizenship. This shall be regulated by law.
5th -- Iraqi citizenship
may not be granted for the purposes of a policy of population settlement disrupting the demographic makeup in Iraq.
6th -- Citizenship
regulations shall be determined by law, and the proper courts should hear suits arising from the regulations.
- The judiciary is independent, with no power above it other than the law.
- There is no crime and no punishment except by the text (of law). And there is no punishment except for an act that the law considers a crime at the time of its commission. No punishment can be enacted that is heavier than the punishment allowed at the time of the crime's commission.
- Trial by judiciary is a right protected and guaranteed to all.
- The right to defense is holy and guaranteed in all stages of investigation and trial.
- The accused is innocent until his guilt is proven in a just, legal court. The accused cannot be tried for the same accusation again after he has been freed unless new evidence appears.
- Every individual has the right to be treated in a just manner in all judicial and administrative procedures.
- Court sessions will be open unless the court decides to make them secret.
- Punishment is for individuals.
- Laws do not apply retroactively unless otherwise has been legislated, and this exception does not include laws of taxes and duties.
- Punitive law shall not be applied retroactively unless it is best for the defendant.
- The court shall appoint an attorney to defend defendants charged with a felony or a misdemeanor who don't have an attorney and it shall be at the state's expense.
- (Arbitrary) detention shall not be allowed.
- Arrest or imprisonment is not allowed in places other than those designated for that according to prison laws that are covered by health and social services and are under the control of the state.
- Preliminary investigation papers shall be shown to the concerned judge no later than 24 hours from the time of the detention of the accused and cannot be extended except once and for same duration.
Article (20): Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates.
1st -- An Iraqi shall not be handed over to foreign bodies and authorities.
2nd -- Political asylum
shall be regulated by law and the political refugee
shall not be turned over to a foreign body or forcefully returned to the country from which he has fled.
3rd -- Political asylum shall not be granted to those accused of committing international or terror crimes or to anyone who has caused Iraq harm.
SECOND: Economic, social and cultural rights
1st -- Work is a right
for all Iraqis in a way that guarantees them a good life.
2nd -- The law regulates the relation between employees and employers on an economic basis, while keeping in consideration rules of social justice.
3rd -- The state guarantees the right to found or join syndicates or professional unions. This shall be regulated by law.
1st -- Private property
is protected and the owner has the right to use it, exploit it and benefit from it within the boundaries of the law.
2nd -- Property
may not be taken away except for the public interest in exchange for fair compensation. This shall be regulated by law.
- An Iraqi has the right to ownership anywhere in Iraq and no one else has the right to own real estate except what is exempted by law.
- Ownership with the purpose of demographic changes is forbidden.
Article (24): The state shall guarantee the freedom of movement for workers, goods and Iraqi capital between the regions and the provinces. This shall be regulated by law.
Article (25): The state shall guarantee the reforming of the Iraqi economy according to modern economic bases, in a way that ensures complete investment of its resources, diversifying its sources and encouraging and developing the private sector.
Article (26): The country shall guarantee the encouragement of investments in the different sectors. This shall be regulated by law.
1st -- Public property is sacrosanct
, and its protection is the duty of every citizen.
2nd -- Regulations pertaining to preserving and administrating state property, the conditions set for using it and the cases when giving up any of the property may be allowed shall be regulated by law.
1st -- Taxes
and fees shall not be imposed, amended, collected or eliminated except by law.
2nd -- Low-income people should be exempted from taxes in a way that guarantees maintaining the minimum level necessary for a living. This shall be regulated by law.
(a) The family
is the foundation of society and the state should preserve its (the family's) existence and ethical and religious value.
(b) The state shall guarantee the protection of motherhood, childhood and old age and shall take care of juveniles and youths and provide them with agreeable conditions to develop their capabilities.
2nd -- Children have the right to upbringing, education and care from their parents; parents have the right to respect and care from their children, especially in times of want, disability or old age.
3rd -- Economic exploitation of children in any form is banned and the state shall take measures to guarantee their protection.
4th -- Violence and abuse in the family, school and society shall be forbidden.
1st -- The state guarantees social and health insurance, the basics for a free and honorable life for the individual and the family -- especially children and women -- and works to protect them from illiteracy, fear and poverty and provides them with housing and the means to rehabilitate and take care of them. This shall be regulated by law.
1st -- Every Iraqi has the right to health service
, and the state is in charge of public health and guarantees the means of protection and treatment by building different kinds of hospitals and health institutions.
2nd -- Individuals and associations have the right to build hospital
s, dispensaries or private clinics under the supervision of the state. This shall be regulated by law.
Article (32): The state cares for the disabled and those with special needs and guarantees their rehabilitation to integrate them in society. This shall be regulated by law.
1st -- Every individual has the right to live in a correct environmental atmosphere.
2nd -- The state guarantees protection and preservation of the environment and biological diversity.
1st -- Education
is a main factor for the progress of society and it is a right guaranteed by the state. It is mandatory in the primary school and the state guarantees fighting illiteracy
2nd -- Free education
is a right for Iraqis in all its stages.
3rd -- The state encourages scientific research for peaceful purposes in a way that benefits humanity and it promotes excelling, creativity and the different manifestations of excellence.
4th -- Private and national education is guaranteed and regulated by law.
- The freedom and dignity of a person are protected.
- No one may be detained or investigated unless by judicial decision.
- All forms of torture, mental or physical, and inhuman treatment are forbidden. There is no recognition of any confession extracted by force or threats or torture, and the injured party may seek compensation for any physical or mental injury that is inflicted.
2nd -- The state is committed to protecting the individual from coercion
in thought, religion or politics, and no one may be imprisoned on these bases.
3rd -- Forced labor
and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.
Article (36): The state guarantees, as long as it does not violate public order and morality:
- the freedom of expressing opinion by all means.
- the freedom of press, publishing, media and distribution.
- freedom of assembly and peaceful protest will be organized by law.
1st -- Freedom to establish and belong to political organizations and parties is guaranteed, and it will be organized by law.
2nd -- No person can be forced to join or remain a member of a political party or organization.
Article (38): The freedom of communications and exchanges by post, telegraph
and by electronic and other means is guaranteed. They will not be monitored or spied upon or revealed except for legal and security necessity in accordance with the law.
Article (39): Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law.
Article (40): Every individual has freedom of thought
, and ideology
1st -- The followers of every religion and sect are free in:
- the practice of their religious rites, including the (Shiite) Husseiniya Rites.
- the administration of religious endowments and their affairs and their religious institutions, and this will be organized by law.
2nd -- The state guarantees freedom of worship
and the protection of its places.
1st -- The Iraqi citizen has freedom of movement and travel and residence within Iraq and outside it.
2nd -- No Iraqi can be exile
d or forced out or forbidden to return to his nation.
1st -- The state is keen to strengthen the role of civil society groups and to support, develop them and preserve their independence in accordance with peaceful means to realize legitimate goals. This shall be regulated by law.
2nd -- The state is keen to advance Iraqi tribe
s and clans
and it cares about their affairs in accordance with religion, law and enhances its noble human values and in a way that contributes to developing society and it forbids tribal customs that run contrary to human rights.
Article (44): All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution.
Article (45): Restricting or limiting any of the freedoms and liberties stated in this constitution may only happen by, or according to, law and as long as this restriction or limitation does not undermine the essence of the right or freedom.
Continued on Constitution of Iraq: Chapters III-IV