Constitution of Iraq

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The current constitution of Iraq was approved by a referendum that took place on 15 October 2005. The constitution was drafted in 2005 by members of the Iraqi Constitutional Committee to replace the Law of Administration for the State of Iraq for the Transitional Period (the "TAL"). The TAL was drafted between December 2003 and March 2004 by the Iraqi Governing Council, an appointed body that was selected by the Coalition Provisional Authority after the Iraq War and occupation of Iraq by the United States and Coalition forces.

Under a compromise brokered before the referendum, it was agreed that the first parliament that was to be elected pursuant to the new constitution would institute a Constitutional Review Committee with a view to determine whether the constitution should be amended. Any amendments agreed would have to be ratified by a similar referendum to the one that originally approved it. After this agreement was entered into, the Sunni-majority Iraqi Islamic Party agreed to back a Yes vote in the referendum that took place on October 15, 2005. The Constitutional Review Committee was constituted by the Iraqi parliament on September 25, 2006.[1]

Electoral Commission officials said at a news conference that 78 percent of voters backed the charter and 21 percent opposed it. Of the 18 provinces, only two recorded "No" votes greater than two thirds, one province short of a veto. A two-thirds rejection vote in three of the country's 18 provinces (of which three--Mosul, Anbar and Salahaddin-- are thought to include Sunni majorities) would have required the dissolution of the Assembly, fresh elections, and the recommencement of the entire drafting process. Turnout in the referendum was 63 percent, commission officials had previously said.

The drafting and adoption of the new Constitution was not without controversy, however, as sectarian tensions in Iraq figured heavily in the process. The deadline for the conclusion of drafting was extended on four occasions because of the lack of consensus on religious language. In the end, only three of the 15 Sunni members of the drafting committee attended the signing ceremony, and none of them signed it. Sunni leaders were generally urging the electorate to reject the constitution in the 15 October referendum, but were overwhelmingly rejected by the voters.

The text of the proposed constitution was read to the National Assembly on Sunday, 28 August 2005. It describes the state as a "democratic, federal, representative republic" (art. 1) (however, the division of powers is to be deferred until the first parliament convenes), and a "multiethnic, multi-religious and multi-sect country" (art. 3).

Contents

[edit] Sections and Articles

[edit] Preamble

(From the Associated Press English language translation.)
In the name of God, the Compassionate, the Merciful
"Verily we have honored the children of Adam" (Qur'an 17:70)
We the sons of Mesopotamia, declare that.

, we are in the land of the prophets, resting place of the holy imams, 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 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 January 30, 2005, remembering the pains of the despotic band's sectarian oppression of the majority; inspired by the suffering of Iraq's martyrs — Sunni and Shiite, Arab, Kurd and Turkomen, and the remaining brethren in all communities — inspired by the injustice against the holy cities in the popular uprising and against the marshes and other places; 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 the suffering of the people of the western region, whom the terrorists and their allies sought to take hostage and prevent from participating in the elections and the establishment of a society of peace and brotherhood and cooperation so we can create a new Iraq, Iraq of the future, without sectarianism, racial strife, regionalism, discrimination or isolation.
Terrorism and takfir (declaring someone an infidel) 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, republican 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.

[edit] Chapter One: Basic Principles

Chapter One lists the basic principles of the Iraq constitution:

  • Iraq is an independent nation, and its system of government is a democratic, federal, representative republic.
  • Islam is the national religion and a basic foundation for the country's laws; however, freedom of religion is upheld.
  • The state has a multi-ethnic makeup and dual national languages: Arabic and Kurdish. Turkmen and Assyrian are official in regions where they are spoken.
  • Terrorism, ethnic cleansing, and takfir are banned, as is the "Saddamist Ba'ath Party".
  • The country is part of the Islamic world and its Arab citizens are part of the Arab nation.
  • The country has a single military, under the command of the civil authority.
  • The constitution is the highest law of the land. No law may be passed that contradicts the constitution, the undisputed laws of Islam, or the principles of democracy.

[edit] Chapter Two: Rights and Freedoms

  • Part One: Rights
    • First: Civil and political rights
    • Second: Economic, social and cultural rights
  • Part Two: Freedoms

Chapter Two details the rights and freedoms of all Iraqis. It details what determines a natural Iraqi citizen and what rights each citizen has regarding that status. Basic rights are defined regarding trial and punishment, personal liberty, ownership, health care, education, and observance of family. Personal freedoms and the right to religion, assembly, and movement are guaranteed.

[edit] Chapter Three: The Federal Authorities

Chapter Three breaks the federal government into four branches: legislative, executive, judicial, and independent associations.

  • Part One: The Legislative Authority
    • First: The Council of Representatives (Parliament)
    • Second: The Council of Union

Part One, The Legislative Authority describes the two legislative councils.

In addition to creating new law, the Council of Representatives is responsible for certifying treaties and international agreements; approving high level judicial, military, and ambassadorial appointments; and approving the budget and final accounting presented by the Cabinet. The Council also elects the President of the Republic and can remove him for violating oath, constitution, or treason; it may also remove the Prime Minister in a no-confidence vote. The Council of Representatives may declare war with a two-thirds vote and requests by both the President and Prime Minister. The Council of Representatives may be dissolved by a one-third vote of the Council or on requests of both the Prime Minister and the President.

The Council of Union is only tasked to examine bills related to regions and provinces. Its creation, powers, and dissolution are to be determined by law.

  • Part Two: The Executive Authority
    • First: The President
    • Second: The Cabinet

Part Two, The Executive Authority, describes the President of the Republic and the Cabinet.

These articles detail the requirements for a presidential candidate and the two-thirds vote in the Council of Representatives necessary to appoint a President of the Republic. This section specifies the President’s term, appointments, military leadership, and legislative approval powers. Described as the "symbol of the nation's unity", the president is not directly elected by the people and his powers are mostly ceremonial or protocolorary in nature, or require that he act with the approval of the prime minister or the Council of Representatives. Presidential succession goes first to the Deputy of the President of the Republic then to the president of the Council of Representatives.

(According to Article 148 of the Transitional Guidelines (see below), until the Council of Representatives enters its second period of sessions, the President of the Republic shall be replaced by a three-member Presidential Council, comprising a president and two deputy presidents, appointed in the fashion described above. The decisions of this Presidential Council are to be adopted by unanimity.)

One of the President's functions is to appoint the leader of the majority party in the Council of Representatives to serve as Prime Minister. The Prime Minister then selects the members of his Cabinet, and these ministerial appointments are subject to a confirmation vote in the Council. If the Prime Minister fails to garner support for his Cabinet within 15 days, the President selects another candidate to try to form a government.

Cabinet has the power to plan and implement the general policy of the state, propose laws and budgets, negotiate treaties, and oversee the national intelligence service and the security apparatuses. The Prime Minister has direct executive responsibility for the general policy of the nation, is the commander-in-chief of the armed forces, and presides over the Cabinet.

  • Part Three: The Judiciary
    • First: The Supreme Judiciary Council
    • Second: The Supreme Federal Court
    • Third: General Provisions

Part Three, The Judiciary, creates an independent judicial branch of government to oversee correct application of laws according to this constitution. The Judiciary consists of:

  • Supreme Judiciary Council
  • Supreme Federal Court
  • Federal Cassation Court
  • Prosecutor's Office
  • Judiciary Inspection Department
  • other federal courts organized by law

The Supreme Judiciary Council administers the judicial branch, nominates members of the courts and departments, and presents the judicial budget to the legislature. The Supreme Federal Court is the highest court in Iraq, oversees election results, and also rules in case of accusations against the President or Prime Minister. Private courts are banned and it is forbidden to create any law that protects an administrative action or decision from being challenged in court.

  • Part Four: Independent Associations

Part Four, Independent Associations creates government organizations outside of the first three branches. These are considered independent but their actions are subject to legislation and supervision by other branches. The following are established in these articles:

  • Supreme Commission for Human Rights
  • Supreme Independent Commission for Elections
  • Integrity Agency
  • Iraqi Central Bank
  • Financial Inspection Office
  • Media and Communications Agency
  • Offices of (religious) Endowments
  • Institution of the Martyrs
  • Federal Public Service Council

[edit] Chapter Four: Powers of the Federal Authorities

Chapter Four, Powers of the Federal Authorities, gives exclusive power to the federal government over:

  • Foreign policy and negotiation
  • National defence policy
  • Financial and customs policies
  • Standards, naturalization, the radio spectrum, and the mail
  • Budget
  • Census
  • Water and oil policies
  • Welfare programs

Powers are shared with regional authorities: regional customs, electrical power, environmental policy, public planning, health, and education. Article 111 defines the breakdown of authority between the regions and the federal government: anything not written in the exclusive powers of the federal authorities is in the authority of the regions and, in the event of a dispute, priority will be given to the region's law.

Oil is defined as the property of all Iraqi people (Art. 109) and is to be managed by the federal government in conjunction with regional and provincial governments, Article 110 attempts to define how oil revenue is to be distributed among the country's regions and provinces; however, beyond stating that it be done "fairly", the constitution does not go into specifics. It also could be read as referring solely to "current" oil fields, not ones opened up in the future.

[edit] Chapter Five: Authorities of the Regions

Chapter Five, Authorities of the Regions, describes the form of Iraq's federation. It begins by stating that the republic's federal system is made up of the capital, regions, decentralized provinces, and local administrations.

  • Part One: Regions

The country's future Regions are to be established from its current 18 governorates (or provinces). Any single province, or group of provinces, is entitled to request that it be recognized as a region, with such a request being made by either two-thirds of the members of the provincial councils in the provinces involved or by one-tenth of the registered voters in the province(s) in question.

Art. 117 paragraph 3 is of relevance to the contentious issue of oil revenues, stating that "Regions and provinces shall be allocated an equitable share of the national revenues sufficient to discharge their responsibilities and duties, but having regard to their resources, needs and the percentage of their population."

  • Part Two: Provinces not organized into a Region

Provinces that are unwilling or unable to join a region still enjoy enough autonomy and resources to enable them to manage their own internal affairs according to the principle of administrative decentralization. With the two parties' approval, federal government responsibilities may be delegated to the provinces, or vice versa. These decentralized provinces are headed by Provincial Governors, elected by Provincial Councils. The administrative levels within a province are defined, in descending order, as districts, counties and villages.

  • Part Three: The Capital

Article 120 states that Baghdad is the Capital of the Republic, within the boundaries of Baghdad Governorate. The constitution makes no specific reference to the status of the capital and its surrounding governorate within the federal structure, stating merely that its status is to be regulated by law.

  • Part Four: Local Administrations

Consisting solely of Article 121, Part Four simply states that the constitution guarantees the administrative, political, cultural, and educational rights of the country's various ethnic groups (Turkmens, Assyrians, etc.), and that legislation will be adopted to regulate those rights.

[edit] Chapter Six: Final and Transitional Guidelines

  • First: Final Guidelines
  • Second: Transitional Guidelines

[edit] Changes

On September 18, 2005, several changes to the text of the constitution were approved by Iraq's parliament, and will be included in the version published for ratification by the public. Also, a new compromise was made which caused many Sunni groups to support the constitution. [2] [3] [4] Many of the links to the Constitution use the August 24, 2005 AP wire translation; however, the American Chronicle uses a slightly different translation dated October 12, 2005.

[edit] Drafting

The constitution was drafted by a committee appointed by the Iraqi Transitional Government that was elected in January 2005. In order to include fair representative from the Sunni Arab minority, which had largely boycotted that vote, additional members were co-opted onto the committee from outside the National Assembly.

See also: Members of the Iraqi Constitution Drafting Committee.

[edit] Adoption

Main article: Iraqi constitution ratification vote, 2005

The Constitution was adopted on 15 October 2005 in a referendum of the people.

[edit] Amendment

Main article: Amendment to the Constitution of Iraq

Under a compromise brokered before the referendum, it was agreed that the first parliament that was to be elected pursuant to the new constitution would institute a Constitutional Review Committee with a view to determine whether the constitution should be amended. Any amendments agreed would have to be ratified by a similar referendum to the one that originally approved it. After this agreement was entered into, the Sunni-majority Iraqi Islamic Party agreed to back a Yes vote in the referendum that took place on October 15, 2005. The Constitutional Review Committee was constituted by the Iraqi parliament on September 25, 2006.[5]

[edit] References

[edit] External articles

There are two versions of the draft constitution, and many (slightly different) translations of both texts are circulating on the Internet:

1. The final draft (September 2005), which was approved by referendum, contains 139 articles. All the mentioned translations slightly differ from each other; between brackets for comparison, the word used in article 2.A stating that no law may contradict "the established/fixed/undisputed rules of Islam":

2. The first published draft (August 2005), containing 153 articles, was later amended but is still broadly circulating thanks to an Associated Press translation (wherein articles 30.2 and 46 are missing):

3. The final version is now available with 144 articles, in both an official Arabic version and unofficial (though approved) English translation. See Wikisource for more.

other materials:

[edit] Commentary

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