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discussion by Andrew Arato—based on the now superseded January draft—is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The work of the committee was superseded by the agreement reached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.