Tuesday, August 23, 2005

Iraq Constitution Final Draft

Earlier today, the Guardian newspaper in the UK published a partial English translation of the final draft of the Iraq constitution. You can see by the section numbering that there are still some large gaps in the translation. Since this is not a complete translation, I will reserve my final conclusions for after the translation is complete.

One paragraph I have not seen in this translation was the guarantee of equality under the law with respect to gender, religion, or ethnicity. This was in the last draft, and may be in this version, but just not in this partial translation (perhaps one of my Arabic-speaking friends reading this can enlighten me as to whether it's in the full Arabic version or not... *hint, hint*)

As for the rest of this translation, I'm reserving my judgement until I see the rest. Here are my thoughts on what I've seen so far:

PREAMBLE"... We rushed in the millions to the ballot boxes for the first time in our history - men, women, the elderly, young people - on January 30, 2005, remembering the pain of sectarian repression practised against the majority and the suffering of Iraq's Shias, Sunnis, Arabs, Kurds and Turkmen and other martyrs, remembering the tyranny practised against the holy cities in the popular Intifada, the Marsh region, the national repression in the massacres of Halabja, Barazan, the Anfal campaign, the Faili Kurds, the Turkmen in Bashir, the suffering of the people of the western region where terrorists and their allies have striven to prevent people from taking part in the elections and establishing a civil society and cooperating in building our new Iraq of the future, without sectarian strife, racism, regional complexes, discrimination and marginalisation.

"Terrorism and the denunciation of people as non-Muslims have not stopped us going forward to build a state of law, and sectarianism and racism have not stopped us ... following the peaceful rotation of power, adopting the principle of fair distribution of resources and allowing equality of opportunity for all.

"We, the Iraqi people now rising from suppression and looking forward to a future in a republican, federal, democratic and pluralist system, have made a pact to respect the rule of law, reject the politics of aggression, give attention to the rights of women, men and children, spread the culture of diversity, and uproot terrorism.

"We, the people of Iraq, have taken upon ourselves to write this constitution in freedom and unity, to learn from what has preceded it and let it be a guide to us in the future, and to draft it using the values and examples of the prophets of old and new developments in knowledge and civilization. Abiding by this constitution will preserve for Iraq the free unity of its components in terms of people, land and sovereignty."
The preamble has no real legal meaning. It is analogous to the "we the people" section of the US constitution. It is simply a prologue written by the authors of the constitution, expressing their thought processes in writing the constitution.

Article One
The Republic of Iraq is an independent state.
I certainly hope so...

Article Two
The political system is republican, parliamentary, democratic and federal.
1. Islam is a main source for legislation.
a. No law may contradict Islamic standards.
b. No law may contradict democratic standards.
c. No law may contradict the essential rights and freedoms mentioned in this constitution.

This paragraph has changed a bit since the last draft. They've made it more prominent in its placement, but diluted it: there is a BIG difference between "a main source for legislation" and "the main source for legislation" (which is what it said in the last draft. Plus, this version clarifies it with three subpoints, indicating that no law may contradict Islamic standards, but also that no law may contradict democratic standards, and that no law may contradict the essential rights and freedoms mentioned in this constitution.

An important question here is whether the "equality with respect to gender" paragraph made it into the other (untranslated) parts of the draft. If so, this paragraph 1(c) would guarantee equal rights for women. If not... who knows.

2. This constitution guarantees the Islamic identity of the Iraqi people and guarantees all religious rights; all persons are free within their ideology and the practice of their ideological practices.
3. Iraq is part of the Islamic world, and the Arabs are part of the Arab nation.
These two paragraphs seem like "window dressing" - a whole lot of words, but minimal legal impact.

4. a. Arabic and Kurdish are the two official languages, and Iraqis have the right to teach their sons their mother language like the Turkomen and Assyrian in the government educational institutes.
b. The language used orally in official institutions such as the Parliament and the Cabinet as well as official conventions should be one of the two languages.
c. Recognising the official documents with the two languages.
d. Opening the schools with two languages.
Bienvenue au Canada / Welcome to Canada

I hope the Iraqis realize how much work it is to maintain an officially bilingual society, with all official documents being translated from one language to the next. We do this in Canada, and it can be done, but it is a lot of work.

For my Iraqi friends, if you want a job, go study Kurdish (or if you're a Kurd, study Arabic). There will be LOTS of work for translators in the new government if this goes through.

Article Three
Federal institutions in Kurdistan should use the two languages.
More translator jobs...

Article Four
The Turkomen and Assyrian languages are the official languages in the Turkomen and Assyrian areas, and each territory or province has the right to use its own official language if residents have approved in a general referendum vote.
Even more translator jobs..... if this keeps up, the whole government will be made up of translators!

Article Five
Power is transferred peacefully through democratic ways.
Of course, if power is transfered violently through undemocratic ways, this constitution won't be worth the paper it's printed on. But, I guess it can't hurt to say it...

Article Seven
1. Any organisation that follow a racist, terrorist, extremist, sectarian-cleaning ideology or circulates or justifies such beliefs is banned, especially Saddam's Ba'ath Party in Iraq and its symbols under any name. And this should not be part of the political pluralism in Iraq.
2. The government is committed to fighting terrorism in all its forms, and works to protect Iraqi soil from being a centre or passage for terrorist activities.

Wow, they don't mince words in this section, do they?


Article 35
a. Human freedom and dignity are guaranteed.
b. No person can be detained or interrogated without a judicial order.
c. All kinds of physical and psychological torture and inhumane treatment are prohibited, and any confession is considered void if it was taken by force, threats and torture. The person who was harmed has the right to ask for compensation for the financial and moral damage he/she suffered.
Good. This whole article 35 seems well-written. Someone should go show a copy to the bonehead who was interrogating Khalid Jarrar a couple of weeks ago.

Article 36
The State guarantees:
1. Freedom of expression by all means.
2. Freedom of the press, printing, advertising and publishing.
Very good. This seems a lot broader than the wording in the last version I saw. This should definitely protect activities like blogging.

I cannot understate how important freedom of expression is in a true democracy. If people are not free to criticize the government, there is no accountability.

Article 37
Freedom to establish political groups and organisations.

Excellent. Another basic cornerstone in any successful democracy.

Article 39
Iraqis are free to abide in their personal lives according to their religion, sects, beliefs or choice. This should be organised by law.
Very good. This also sounds like it would protect the rights of different Muslim sects (Shia/Sunni) as well as Christians, Jews, and any other non-Muslim minority groups living in Iraq.

Article 66
A presidential candidate should:
1. Be Iraqi by birth and the offspring of two Iraqi parents.
2. Be no less than 40 years old.
3. Have a good reputation and political experience, and be known as honest and faithful to the nation.

Article 75
The prime minister should have all the qualifications as the presidential candidate and should have a

university degree or its equivalent and should not be less than 35 years old.

Article 104
A general commission should be set up to observe and specify the central (government) revenues, and the commission should be made up of experts from the central government, regions, provinces and representatives.

Article 107
Federal authorities should preserve Iraq's unity, security, independence and sovereignty and its democratic federal system.

No issue here.

Article 109
Oil and gas are the property of all the Iraqi people in regions and provinces.

Article 110
The central government administers oil and gas extracted from current wells, along with governments of the producing regions and provinces, on the condition that revenues are distributed in a way that suits population distribution around the country.

These two articles are a recipe for a fight. They say that the central government administers oil and gas wells "along with" the regions and provinces. It does not specify which government body (the central, regional, or provincial) takes precedence if these bodies disagree with each other, or how disputes are settled.

Article 114
1. A region consists of one or more provinces, and two or more regions have the right to create a single region.
2. A province or more has the right to set a region according to a referendum called for in one of two ways:
a. A demand by one-third of all members of each of the provincial councils that aims to set up a
b. A demand by one-tenth of voters of the provinces that aim to set up a region.

Article 117
A region's legislative authority is made up of one council, named the National Assembly of the region.

Article 118
The National Council of the region drafts the region's constitution and issues laws, which must not contradict this constitution and Iraq's central laws.

Article 120
The executive authority of the region is made up of the president of the region and the region's government.

Article 128
The region's revenues are made up from the specified allotment from the national budget and from the local revenues of the region.

Article 129
The regional government does what is needed to administer the region, especially setting up internal security forces, such as police, security and region guards.

The articles above are likely a main source of disagreement in the constitution. This basically says that any province or collection of provinces can have a referendum and form a semi-autonomous region, headed by a "National Assembly", which can form its own laws, and establish its own internal security forces.

It doesn't take a lot of guessing to figure out the first region formed will probably be Kurdistan.

Does this weaken the constitution? I don't think so. These paragraphs seem fairly reasonable in terms of how each region would fit within an Iraqi federal framework, and stipulate that no region can pass laws that contradict the federal laws or constitution. And, if you think about it, this type of regional autonomy is not unprecedented: the degree of autonomy granted to a region here is actually less than what each of the 50 US states enjoy in the American constitution.

Article 135
This constitution guarantees the administrative, political, cultural and educational rights of different ethnic groups such as Turkomen, Chaldean, Assyrians and other groups.

This article is better than the last version I wrote about in that it includes an all-inclusive "and other groups" at the end.

Article 144
The Iraq Supreme Criminal Court continues its work as a legislative, independent commission to look into the crimes of the former dictatorial regime and its symbols, and the Council of Deputies has the right to annul it after it ends its duties.

Article 145
a. The Supreme National Commission for de-Ba'athification continues its work as an independent commission, in coordination with the judicial authority and executive institutions and according to laws that organise its work.
b. Parliament has the right to dissolve this commission after it ends its work, with a two-thirds majority.

This seems dangerous...

The issue here is the statement "after it ends its work." If the de-Ba'athification commission never ends its work, Parliament can never dissolve it, even by a two-thirds majority. By this article, since this commission sets its own scope, it could continue working for decades, ripping apart every segment of society with no checks or balances.

Parliament should have the right to dissolve this commission at anytime whether it "ends its work" or not.

Article 151
No less than 25% of Council of Deputies seats go to women.

Interesting... On one side, I can see how this can encourage representation by women, but on the other side, I am not sure how this can be easily enforced. What happens if voters don't vote for the female candidates? Do they keep holding elections until 25% of the elected group are women?

Article 153
This law is considered in force after people vote on it in a general referendum and when it is published in the official Gazette and the Council of Deputies is elected according to it.