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August 26, 2005

We, the People

"But there was much disagreement among the delegates about exactly what [the Constitution] should be. Some wanted a weak president and a strong legislature. Some wanted a smart president and a dumb legislature. Some wanted a very short president and a deaf legislature. The New York delegation, typically, wanted a loud president and a rude legislature..." --Dave Barry Slept Here

The Associated Press claims to have the complete text of the draft Iraqi Constitution. (Link courtesy of the Chicago Tribune). Here's my take on it.

The Constitution consists of a Preamble and six Chapters, each of which consists of a number of Articles. Wisely, the Articles are numbered sequentially without regard to Chapter, which will make citations fairly easy. I'm not going to go over every single Article (do you really need me to explain what the Constitution has to say about federal holidays?), but will hit all the ones that are interesting.


The seven paragraph, 500 word Preamble won't have any Schoolhouse Rock cartoons set to it, but it is fairly inspiring. It begins with an invokation, then notes Iraq's honored position as the heir of Mesopotamia, the cradle of civilization. It goes on to recall January 30, 2005, where Iraqis "went by the millions for the first time in history to the ballot box". The final two paragraphs are truly stirring, declaring the high aspirations of the Iraqi people:

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.


Article 1 declares Iraq a democratic parliamentary republic, and a federal state.

Article 2 establishes Islam as the state religion. I'm sure plenty of fights were picked about this. In this version, Islam is described as a basic source of legislation, not the basic source of legislation as the hardliners wanted. Interestingly, this is followed by three subarticles:

(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.

Note the negative phrasing: No law can be passed. I seem to recall reading similar words elsewhere. This does not mean that sharia is coming to Iraq; the Constitution forbids the enaction of laws contrary to Islam, it does not mandate the passage of laws demanded by Islam. In fact, sharia is not coming to Iraq, since such a law would violate the rights and basic freedoms guaranteed elsewhere in the Constitution.

Article 3 acknowledges Iraq's diversity and declares it part of the "Islamic" world.

Article 4 makes the new government bilingual, with two official languages: Arabic and Kurdish. I don't know, I guess it works out for Canada. It also establishes additional official languages (Turkomen, Assyrian, and any others a region or province adopts) where those languages predominate.

Article 7 outlaws institutions that "advocate, instigate, justify or propagate racism, terrorism, "takfir" (declaring someone an infidel), [or] sectarian cleansing", "especially the Saddamist Baath Party". It also commits the State to fighting terrorism.

Article 9 establishes a military which is subordinate to civilian leadership, just as ours is.

Article 13 declares the Constitution to be the supreme law of the land, and bans the passage of laws which contradict it.


This Chapter is essentially Iraq's bill of rights. It's longer than ours.

Article 14 guarantees equal protection under the law regardless of "sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status".

Article 17 provides the right to freedom from unreasonable search and seizure, and mandates judicial search warrants.

Article 19 establishes an independent judiciary, the right to a trial, the presumption of innocence, the right to a state-appointed attorney, among other rights enjoyed by Americans.

Article 23 protects private property, and includes an eminent domain clause that seems similar to what we've got in the United States, at least according to the Supreme Court in Kelo. It also makes purchase of land by a foreigner illegal by default; foreign purchases of land are legal only where explicitly authorized by law.

Article 36 protects free expression, freedom of the press, freedom to assemble, and freedom to protest.

Article 40 guarantees freedom of worship.


Finally, the chapter that actually talks about what the government looks like. This is a long one.

Articles 47-63 deal with the legislature. The legislature appears to consist of two houses or Councils, and I must admit, I'm a trifle confused. The two houses are the Council of Representatives and the Council of Union... but the Constitution grants absolutely no powers to the latter. I'm not sure what its purpose is.

There is one member of the Council of Representatives per 100,000 Iraqis, which would make it 260 members at Iraq's present population. Members must be citizens of Iraq and take the following oath:

"I swear by God almighty to carry out my legal duties and responsibilities with dedication and devotion and to preserve the independence and sovereignty of Iraq and to look after the interests of its people and to see to the safety of its land, sky, water, wealth and democratic, federal system and to work to preserve the public and private freedoms and the independence of the judiciary and to abide by honestly and impartially implementing the legislation. God is the witness of what I say."

The Council has a President, elected by absolute majority. Members sit for 4 years, but the Council is only in session for 16 months of that, although special sessions may be called. The Council passes laws by simple majority and must ratify treaties by two-thirds majorities. A declaration of war also requires a two-thirds majority. A number of officers sit at the pleasure of the Council, which can remove them by no-confidence votes. The Council can also dissolve itself by majority vote, forcing new elections.

Articles 64-84 cover the executive, comprising the President and his Cabinet. The President needs to be at least 40 years old and a native-born Iraqi... so I guess Arnold Schwarzenegger will have to give up his dream. He's elected by the Council, not directly by the people, and seems to have largely ceremonial powers. The Constitution allows him to "[endorse] and [issue] laws enacted by the Council of Representatives", but I don't know if that means that he has veto power. The Cabinet consists of a prime minister and his appointees, and is responsible for most of the execution of the laws.

Articles 85-99 cover the judiciary, and they're so important that as I write this, the Tribune includes three copies of them. The courts are independent, and the Constitution establishes a number of them. Interestingly, there's a Supreme Judiciary Council which is charged with, not interpeting the laws, but overseeing the judiciary. It's also responsible for nominating judges, which require two-thirds parliamentary approval. Nothing is said about limited terms for judges, so I presume they serve for life unless impeached.

Articles 100-106 establish other federal institutions, such as a human rights commission, a central bank, something called the "Institution of the Martyrs", and a board to divide up federal revenues... meaning whatever income Iraq derives from selling decorative planters or whatever it is that they export.


Okay, so we know who these guys are, now what can they do? Small-government afficionados will be happy to know that this is the shortest of the Constitution's chapters.

Article 107 commits the federal government to maintaining Iraq's unity. Sorry, Kurds, you're Iraqis for now.

Article 108 gives the federal government the sole jurisdiction in areas similar to what the United States Constitution provides: foreign policy, weights and measures, national defense, the census, that sort of thing.

Article 109 socializes oil and gas. Pity.

Article 110 specifies just how the oil and gas socialism is to be administered.

Article 111 is Iraq's Tenth Amendment; may it be more successful than ours. "All that is not written in the exclusive powers of the federal authorities is in the authority of the regions." Couldn't have said it better myself.

Article 112 designates certain areas that are the responsibility of both federal and regional governments... but Article 111 gives the regions precedence in such situations.


This Article breaks Iraq down into regions, and breaks the regions down into provinces. Provinces need not be part of any region, and Baghdad is part of no region or province. It's a federal district. The chapter dictates the form of regional governments a bit more than our Constitution dictates the form of state governments.

Articles 117-119 mandate that each region have a single-chamber legislature called the National Council for the Region, and that its members be democratically elected. Each region is to have its own constitution, enacted by the Council.

Articles 120-129 talk about the regional executives: presidents and cabinets. These are elected according to the regional constitutions.

Articles 130-131 talk about regional judiciaries, and leaves the establishment of such judiciaries up to the regions. Articles 132 and 133 are about provinces that do not belong to a region, and article 134 is about Baghdad.


Article 136 is the Amendment process. Amendments are proposed by the President and the Cabinet, or by a one-fifth minority of the Council of Representatives. Ratifying an amendment requires a two-thirds legislative majority, a public referendum, and the endorsement of the President.

The remainder of the Articles in "Final Guidelines" are standard housekeeping stuff: laws stay in effect until repealed, government officials are forbidden from corruption, and so forth.

The remainder of the Constitution deals with transitioning to implementation. Article 142 promises compensation to the "families of martyrs and those who were wounded by terrorist acts." This is interesting and may cause grieving Iraqis to support the Constitution.

Article 144 leaves the hastily-assembed Supreme Iraqi Criminal Court, established to try Saddam and other Baath officials, in place until "its work is finished". Article 145 establishes the same for the National De-Baathification Committee, and also forbids former Baathists to hold office.

Article 148 states that Iraq's first Presidency will be held by a council of three, not an individual. I'm not sure why.

Article 151 reserves 25% of the legislative seats for women. Boo.

That's about it. It could be a lot worse. Now let's just hope it's approved.

August 26, 2005 in Current Affairs | Permalink


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