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noticias.info (press release), Spain
Feb 27 2005
IRAQ : Basic principles of the permanent constitution of the new Iraq
/noticias.info/
Fuente: Kurdistan Regional Government (KRG)
http://www.krg.org/
A Speech to be delivered by Dr. Munther Al-Fadhal in the conference
of Federalism and the Future of Democracy in Iraq that will be held
in April 2005, Poznan University - Poland
In 1925, the first constitution of the State of Iraq was issued under
the name of Basic Law. This was brought about by constitutional
institutions built by all Iraqi ethnicities, religion followers and
communities; with clear transparency. That was the first permanent
constitution of the state of new Iraq that has not witnessed any
other permanent constitutions so far. Since the monarchy rule was
toppled down on July 14, 1958, many constitutions have appeared and
lots of modifications in them have indicated political turmoil,
instability and the lack of institutional work in Iraq; constitutions
in which the law of force dominated the force of law.
The Basic Law went under lengthy discussions before being issued. It
included numerous texts that organized the relationship among the
three powers: the judiciary, the executive and legislative powers.
Mr. Abdal Muhsin al-Sa'dun became the first Iraqi Prime Minister who
dreamt of founding a state of law. His vision about the rights of the
Kurdish People and respecting the rights of the other nationalities
was clear. The Iraqi State took a simple form and the rule was
central in the Iraqi capital city Baghdad. The monarchy system
continued from 1921 to July 1958 witnessing much turbulence and so
many political crises including the Kurdish Revolution led by the
Sheikhs of Barzan such as, the revolution of Sheikh Abdussalam
Barzani and that of Sheikh Ahmed Barzani in the beginning of the
thirties. Those were followed by the leader Mustafa Barzani's
revolution in September of 1961, which was a continuance of the
revolution led by Sheikh Mahmud al-Hafeed after World War I. Many
attempts that have been made to build democracy through resolving the
Kurdish Question justly and peacefully have failed and, thus,
influenced all life aspects and conditions of Iraq.
The conditions in Iraq have not stabilized since July 14, 1958. Many
interim constitutions have been passed; their contents and laws being
disrespected. The independence of the Judiciary power was also
disrespected and the ruler was above the law. There is no doubt that
such deterioration, the absence of law, the violation of human
rights, and the phenomenon of monocracy that had brought disasters to
the Iraqis commenced with the coming of the Ba'thist Rule to power in
1968. It became even worse and more dangerous when Saddam seized
power in 1979 who over extolled national integrity and led Iraq to a
civil war against the Kurdish people. He acted treacherously towards
the eastern and western neighbours. He destroyed the country due to
his dictatorial rule, crippled the constitution and dismissed the
law. The consequences of the internal and external wars on the Iraqis
can be felt up to the present and their impacts will continue for a
long time.
For the sake of a pluralistic and democratic Iraq that enjoys
stability and peace based on the principle of freely chosen
federation, which respects the Basic Law, operative laws, human
rights, and the international commitments. An Iraq which is free from
discrimination due to sex, colour, ethnicity, nationality, religion,
and thought. An Iraq in which women play a role that corresponds with
the human values in life. For the sake of a neutral Iraq away from
the wars. An Iraq in which constitutional institutions, civil
society, and the integrity of law, are established. This is to be
away from the idol-worship and the military and totalitarian rules
that are totally at odds with the principles of democratic rule. For
the sake of an Iraq in which all the nationalities enjoy freedom,
stability, and security; in which every party recognizes the others'
rights, respects the peoples' rights of self-determination and
consolidates principles of peaceful succession; there should exist a
permanent constitution for the country. This is to be equivalent to
the Basic Law or as the Supreme Law of the Iraqi Federal State to
which all should yield, the ruler and the ruled. This is because the
basic fundamentals of the state of law are to have a permanent
constitution, to work for the separation of powers; to consolidate
the integrity of law; to respect the progression of legal rules; to
protect the rights of the people and to work for the independence of
the tribunal system.
To activate the role of women in life as they constitute half of the
society and to make them equal to men in their rights, which maintain
and confirm their human identity and repeal all forms of
discrimination against them. In order to spread the culture of human
rights and the right of opposition, to build up the principles of
tolerance and moderation; to cast away prejudice and partiality, to
fight terrorist actions wherever they come from; and to build a
civilized state that plays its role in the regional and international
scenes; the basic principles of the permanent constitution of the New
Iraq should be formulated. What are these principles? To investigate
this the subject should be divided as follows:
First: Legal Observations on the Law of State Administration .
Second: General Principles and Basic Rights of the Permanent
Constitution of the New Iraq.
First: Legal Observations on the Law of State Administration
After the liberation of Iraq on April 9, 2003 from the most repulsive
and fascist regime since the downfall of Nazism in 1945, the
Governing Council that had been established after the liberation to
run Iraq for a transitional period drafted the Iraqi Law of State
Administration on March 8, 2004, which was formed after the
liberation to administer the Iraqi State for the transitional period
that had o precede the constitutional institutions. The Law of State
Administration included the basic rules and principles of the
permanent constitution of the New Iraq. To grasp the rules that will
determine the identity and future of Iraq after dictatorship (The
Arabic Nazism), some observations should be stated about the
aforementioned Law so as to be acquainted with the basics of the
Permanent Constitution of the New Iraq.
After real diligence the Interim Constitution appeared. That was on a
famous international day, the Women's Day, on March 8, 2003. It was
an occasion that brought to mind what was agreed on Saddam and the
Shah of Iran on March 6, 1975 according to which Saddam gave up half
of Shat al-Arab in return for Shah's pledges to stop the Iranian
logistic support to the Kurdish liberation movement in Iraqi
Kurdistan. The event also brought to mind the courageous Kurdish
uprising as well as that of the people of the south against the
Tyrant and his regime. In 1991 which eventuated in the death of
hundreds of thousands of innocent civilians in the country. The
defeated regime bombed the uprising cities with missiles and buried
thousands of innocent civilians in mass graves. The occasion also
reminded us of many other significant events on the level of Iraq as
well as on the international level.
Various conflicting reactions were noticed after the issuance of the
Law. Some supported it, others rejected, and some were in-between.
Therefore; we will not touch on to the regional and international
impressions regarding the Law as this is purely an Iraqi internal
affair. We also do not mean to touch on some of the political
reactions by some religious authoritative references that take a
biased and chauvinistic standpoint like most of the Arabs and some of
our brothers from other ethnicities. This is because what appeal to
us are the legal aspects and the organization and management of the
Iraqi State and its institutions until the issuance of the Permanent
Constitution of the Iraqi Federal State. It seems that one of the
legal issues that are raised is the question always asked: can a
council, which is not elected, be incumbent upon an elected one? Does
the Governing Council have the legitimate right to pass such a law?
And what is the difference between the law and the constitution. To
attempt such questions it should be stated that the venerable
Governing Council is a legitimate council even if it does not
represent all the Iraqi community. According to the Geneva Convention
of 1949, the occupying authority should administer the occupied
country and protect its civilians. One of the duties of that
authority is to form an administration from the Iraqis to run the
state affairs. Besides, the parties in the Governing Council
constitute the majority of the political parties and the influential
political movements Iraq's had so far. Hence they constitute the
majority of the Iraqis such as, Kurdistan Democratic Party, Patriotic
Union of Kurdistan, the Iraqi Communist Party, the Da'wa Party, the
Supreme Islamic Council, the Iraqi National Conference, and the Iraqi
Islamic Union. This is in addition to some Iraqi personalities who
have struggled against dictatorship and are locally famous and
well-reputed.
Thus, in spite of all the trouble and opposition from the inside and
outside of Iraq, the Council gains legitimacy to exist and to take
power in co-operation with the Coalition Authority or the Occupation
Authority. What further asserts the legitimacy of the Council are the
resolution passed by the United Nations that organized the
relationship between the Council and the Coalition Authority and
recognized the former as legitimate. These resolutions include, the
1483 UN resolution on May 22, 2003, the 1511 resolution on October
16, 2003 which was concerned with the preparation for the
transference of integrity to the Iraqis, and finally the 1546
resolution on June 2004 regarding the transference of integrity. It
is therefore inferred that though the Governing Council was not
elected due to legal and incidental circumstances, it is legitimate
and it can pass laws and judgments like an elected council after the
approval of the Civil Ruler of Iraq; the latter being in support of
the Geneva Convention. Geneva Convention states that the Ruler can
pass laws and resolutions, and after he approves of the Interim
Constitution, it will acquire legitimacy under obligation according
to the international legal prerogatives of the mentioned Civil Ruler.
Besides, this law is an equivalent to an interim constitution of the
country for it is called the Supreme Law of the Country. Restrictions
are laid on any modifications or changes that might be done to its
items and provisions in a way that are in correspondence with its
importance and constitutional characteristic; as usually
constitutions are known for their flexibility and inflexibility to
change. In addition to all that, the coalition intervention in Iraq
to topple the regime down was legitimate according to the Security
Council resolutions to protect security in the world and to the
respect of human rights which is not an internal affair.
However, there are some observations about the Law. Some of these are
related to aspect of form and techniques of legislation that the Law
lacks. Others are objective and are related to the essence of the Law
and its items, whether stated or not, which should be redressed. We
hope to explicate some of these observations and the intention is to
be constructive and not to deconstruct, to show opinions and not to
impose them. This is for the sake of general interest and protection
of the rights of the Iraqis and in support of building the state of
law and constitutional institutions. The major points can be seen as
follows:
When the provisions of the law are reviewed, the reader who
specialized notices a clear weakness in the legal formula. It was
written by politicians and jurists who seem not to be well versed
about the formulation of such laws. There should be a clear-cut
relation between the wording and the content. They are usually clear
and transparent quoted expressions free from repetition and
wordiness. It would have been rather preferable to show the Law to a
number of jurists in the State Consultative Council at the Ministry
of Justice in cooperation with some other jurists and specialized
academicians in Kurdistan in order to set a sound legal formula.
This is in addition to many typing mistakes. And it seems that some
of the participants are not well versed in Arabic and thus have
translated the provisions from English, which has brought about a
poor style. Therefore; it is hoped that the Permanent Constitutions
might be written in partnership with some Iraqi experts who believe
in democracy to avoid the shortcomings discussed; especially when it
comes to the fact that the Permanent Constitution will represent a
crucial stage after so many years of absence of the law and the
paralyzing of the constitution terms. The following are some other
examples:
1- The political characteristic of the preamble: It is likely for the
preamble to have a legal mark that justifies the appearance of the
Basic Law. The preamble should depend on legal items rather than
political ones.
2- The Law has ignored the possibility of the fact that some of the
Iraqis may wish for the restoration of the monarchy system to Iraq as
well as the kind and nature of government in Iraq. This made the
Secretary of the League of Arab States state that the views and
standpoints of the Iraqis should be appreciated as respect to the
principles of democracy.
3- The 2nd article (B) includes a typing mistake.
4- The terminology used to describe the law is sometimes overlapping.
It is somewhere called `The Administrative Law for the Transitional
Period' and called `The Supreme Law of the Country' somewhere else.
There are also hard restrictions concerned with modifications in it
that ascends it to the level of a permanent constitution. There
should have been one unchangeable term to describe it: either a law
inferior to a constitution or a constitution that is superior to a
law. This overlapping terminology is there because the political
stamp dominates the legal one. Besides, the lack of Iraqi experts
while the final draft of the Constitution was being discussed. We
believe that it should be called `The Supreme Law of the Country'
until the Permanent Constitution is issued.
5- The Law does not point to the appended articles attached to the
Administrative Law for the Transitional Period that constitutes an
independent part of the articles as stated in item 1 - B of the 2nd
article in the Law.
6- The 4th article talks about (the system in Iraq) whereas the
correct expression should be the political system in Iraq. Besides,
the provision is at odds with the desire of some people for a
political monarchy system. It has imposed the republican system;
while the Iraqis in a referendum should have decided this after
making a clear and general census. Such census, however, can not be
made if the problems brought about by the former regime are not
resolved such as, the Kirkuk issue as well as the other cities that
underwent Arabization and ethnic cleansing. It is also appears that
the provision is an English translated one that has a poor style.
Accordingly, it is of crucial importance to distinguish between the
form of the Iraqi State which is a federal state and the system or
political system be it a monarchy or republican.
7- A notable mistake can be seen in article 2 where mention about the
elections is made without asserting the necessity of a general census
of the Iraqis. There are about four million Iraqis scattered all over
the world in addition to half a million Faili Kurds who have been
deported and deprived of citizenship after confiscating their
properties. These live in banishment and others were recently born
and have seen Iraq only on a map; they do not know where does lie due
to the policy of the former regime. There are also hundreds of
thousands of displaced people who are the victims of deportation and
ethnic cleansing of the cities of Kirkuk, Mandali, Khanaqeen, and
Zarbatia as well as other cities to which the people have did not go
back and so their original identity has been changed. Therefore; it
is not recommended to make the elections without considering the
deported people; and legally elections can not be made without a
general census so that all Iraqis, in and out of Iraq would have the
opportunity to participate. This point has to be considered as it
affects the legitimacy of the elections. Thus, the main question is:
how do we start making elections and writing the permanent
constitution without having a census? And should the food rations
card be such reliable evidence that the voters are Iraqis? We
certainly know that Saddam dropped so many of these cards after
displacing a lot of people. Other Iraqis who live abroad do not have
and do not need a food rations card and they certainly are looking
forward to take part in the elections through the Iraqi embassy as
any other civilized country in the world would do. The food rations
card is a primitive style adopted by the former regime for political
reasons. Besides, there are many people who have more than one card
in hope for getting more than one ration of food.
8- In article 3 this statement appears `Or is likely to affect Islam
or any other religion or ritual'. We believe that this is a
superfluous and an unjustified statement.
9- Article 6 states: `the Iraqi Interim Government will take
substantial steps to end the impacts of the repressive deeds by the
former regime such as, the coercive displacement, denaturalization,
the confiscation of movable and immovable properties, and firing
people from their positions in the government for political, ethnic
or sectarian reasons.' We believe that this text is deficient for it
ignore an important issue which the compensation of the aggrieved and
wronged Iraqis for religious reasons such as, the Christians, the
Jewish people, the Ezidians and the Sabi'a.
10- An item about Kirkuk occurs in article 58 of the Law of State
Administration for the transitional period to resolve the problems
resulted from Arabization, the splitting of districts and
sub-districts from this city, and altering its Kurdistani identity.
It states: `the former regime acted fraudulently with the
administrative boundaries of the city to achieve some political
goals. The Iraqi Interim Government or the presidency have to give
recommendation to the National Assembly to alter such partialities.
If the presidency did not approve collectively of a number of
recommendations, they have to appoint neutral arbitrators to achieve
that. And in case the presidential council could not agree on proper
arbitrators, they need to appeal to the Secretary General to appoint
a known international personality to do that.'
We think that the aforementioned statement is also deficient and it
does not serve peace or the interests of the nationalities in Iraq
for the reasons below:
First: The case of Kirkuk is an Iraqi pure issue and its file should
not be forwarded to international arbitrators, even if they are
neutral or collectively approved of, because that will allow other
parties to interfere on the basis of having other nationalities such
as the Turkmans. This has already been seen earlier when the media
channels in Turkey maintained that the Kirkuk case is not an Iraqi
internal issue. Moreover, an Iraqi expert would be certainly better
than a foreigner in understanding what has happened to this city and
its history as a problem of building peace in Kurdistan.
Second: The Law of State Administration formed the Constitutional
High Court devoted to settle the problems and conflicts between the
government of any region and the federal central government. Hence,
any dispute on Kirkuk can be forwarded to that Court for settlement.
Any decision passed by this Court about the issue should be lawful
and just and should consolidate the principles of the state of law.
Second: General Principles and Basic Rights of the Permanent
Constitution of the New Iraq
There is no doubt that the Law of State Administration for the
transitional period - if it did not provide the Kurdish people with all
their rights - can be considered a remarkable step towards resolving
the Kurdish Case justly and peacefully after years of internal
fighting and after offering huge sacrifices to assert the national
rights of Kurds. It has considered the rights of the Kurdish people
sincerely at the moment and it is hoped that the Faili Kurds issue
may be also considered as well as the victims of Arabization, ethnic
cleansing, deportation, the lost and all other victims of the former
regime.
The Law, furthermore, is a promising step towards respecting the
rights of the other nationalities such as, the Turkumans and the
Kildo - Assyrians; it is also a noticeable step towards securing the
rights of other religion followers and towards the practice of
religious rituals and the political and cultural rights. It is the
first time that such a Law confirms that the form of the Iraqi State
will be changed from a simple autocratic State to a pluralistic,
democratic, and parliamentary State based on federalism.
Before referring to the basics of the Iraqi Permanent Constitution of
the New Iraq after the liberation, it is necessary to state that the
American Bar Association (ABA) will form an Iraqi Constitution Work
Group (ICWG) at the beginning of 2005. This group will be formed from
Iraqis in and out of Iraq including the Iraqi Lawyers Union,
academicians, and people from human rights organizations,
non-governmental organizations, women organizations as well as some
Iraqi judges. These will draft the permanent constitution of the
country supervised by the ABA to build a federal, pluralistic and
democratic Iraq in which the human rights and principles of law are
respected. It is noteworthy that I presented a proposal for the
project of the permanent constitution of a federal, pluralistic, and
democratic Iraq while I was working with a group of Iraqi experts to
build democracy in Iraq that worked under he supervision of the
American State Department in the years 2001 - 2002 called DWG.
That proposal was approved by the Iraqi experts as well as by the
participants in the Iraqi Opposition Conference held on December 14,
2002 with two other proposals: the Bill of Iraqi Rights, and the
project of Federalism for the New Iraq after the Saddam era. As the
drafting of the Permanent Constitution and the of the New Iraq is
approaching, it is essential to demonstrate some of the most
important principles and basic rights of the Permanent Constitution
of the New Iraq. The following are thus taken from my proposal that
was presented to the American State Department and the Iraqi National
Forces several months before the Operation Iraqi Freedom.
First Principle: People are the source of the authorities and their
legitimacy.
Second Principle:
1- Iraq is a federal, pluralistic, and democratic state based on a
freely chosen federation between two essential partners, which are
the Arabic People and the Kurdish People.
2- The State of Iraq is based on ideological, political, religious,
and national pluralism dominated by the law.
3- The Arabs of Iraq are part of the Arab Nation.
4- The Kurds of Iraq are part of the Kurdish Nation.
5- The rights of other nationalities such as the Turkumans,
Kildo - Assyrians, and Armenians should be protected by virtue of the
Law.
Third Principle:
The system in Iraq is Republican. Powers are divided between the
federal government and the regional governments, governorates, and
local administrations according to the principles of federalism.
Fourth Principle:
1-Integrity and the land of Iraq are one. They are not to be
abandoned. The right of the Kurdish people to self-determination is
legitimate as well as its right to found an independent state if the
constitutional institutions approve of that after having a general
referendum in Kurdistan supervised by the United Nations.
2-The referendum to such determination is only limited to Kurdistan;
and the participation of the rest of Iraq would be illegitimate.
Fifth Principle:
1- Iraq is a neutral state and it does not go into any war.
2- The Iraqi armed forces are controlled by civil institutions.
3- The armed forces are absolutely banned from indulging into
politics or political work.
Sixth Principle:
1- Those who were hurt by the former regime should be compensated
morally and materially. A proportion of 5% of the oil revenues should
be for compensation and the reconstruction of the harmed areas in
Kurdistan and the south of Iraq.
2- Those who were killed, lost, people of the mass graves, the
victims of Halabja and Anfal, and the Faili Kurds, and the victims of
the middle and the south of Iraq are all to be recorded as the
martyrs of Iraq's National Movement.
3- The traces and remnants of Arabization, ethnic cleansing, and
displacement should be transparently cleared by virtue of the law.
Seventh Principle:
1- The Iraqis who were deported and who left the country, and were
deprived of citizenship, should be naturalized again; including the
Faili Kurds. The confiscated money and property should be restored
and those who were fired from their positions due top the repressive
policy adopted by the former regime should go back to their work.
2- The period passed should be counted as years of service for
pension reasons.
Eighth Principle:
The flag, slogan, and national anthem of Iraq should be set on the
basis of a law that takes into account the existence of two main
nationalities (the Arabs and the Kurds). They should symbolize
fraternity, multi-nationalities of Iraq and tolerance among them and
among different religion followers, and they should indicate
neutrality.
Ninth Principle:
1- Arabic and Kurdish are the official languages in Iraq.
2- The other nationalities like Turkumans, Kildo - Assyrians, and
Armenians have the right to education in their own languages.
Tenth Principle:
The Universal Declaration of the Human Rights that appeared on
December 10, 1948 and the supplement conventions should not be
segregated from the principles of the Permanent Constitution. The
international conventions and agreements that the Iraqi government
signs should be part of the legal system and should be respected and
committed to.
Eleventh Principle:
1- The Iraqis have equal rights and duties regardless to sex,
attitude, colour, ethnicity, belief, nationality, and religion; and
are equal before the law.
2- The Iraqis should not be denaturalized, banished, or prohibited
from entrance to Iraq.
3- As an exception to the above item, the person who is known to have
given false substantial information to obtain citizenship should be
deprived of it.
Twelfth Principle:
1- Iraqi citizenship and its regulations should be organized by the
law.
2- Iraqis should not remain without citizenship and passports.
3- Iraqis are allowed to have more than one citizenship.
Thirteenth Principle:
All kinds of freedom, public and private, should be preserved and the
individual's privacy should not be transgressed.
Fourteenth Principle:
The right to freedom of thought and expression should be protected.
Fifteenth Principle:
1- Every citizen has the right to the freedom of holding peaceful
meetings, establishing unions, and peaceful strike and
demonstrations.
2- Every citizen has the right to the freedom of possession, movement
and travel to any place as well as to return according to the law.
Sixteenth Principle:
Every Iraqi has the right to security, education, and health and
social insurance.
Seventeenth Principle:
Any three governorates (provinces) or more have the right to form a
region in accordance with the law. The border of any region should
not be drawn on the basis of sect, ethnicity, or nationality. Iraq
consists of the following regions; considering the fact that each
region has the right through a referendum to shape its relation with
the central federal government.
Kurdistan Region: Its geographical and administrative borders are
drawn on legal and historical basis. Kurdistan region should also
include Kirkuk according to the general census of 1957. The
conditions should be normalized and the impacts and remnants of
Arabization, ethnic cleansing, displacement, and the crimes of the
former regime should be eliminated. These should be done by restoring
the conditions geographically, administratively, and legally to the
period before the March Agreement of 1970.
The Center Region: It includes some of the other governorates with
out Baghdad which is the Capital of Federal state.
The South Region: This is the south federalism the borders of which
should be drawn on geographical, not a sectarian basis. It
administratively includes three governorates or more.
Eighteenth Principle:
1- Military service is a voluntary one; and should not be compulsory.
2- No group or party is allowed to form militias or semi military
bodies. People are not allowed to trade in, carry, and circulate
weapons or else permitted by the law.
Nineteenth Principle:
1- Death sentence or execution should not remain any more in the
Iraqi legal system after the trial of the former regime agents.
2- Death penalty should be cancelled in the Iraqi law.
3- Punishment should be there for reform, not for revenge.
Twentieth Principle:
1- A High Constitutional Court should be formed to monitor the
constitution of laws, specify them, and to preserve the separation of
legislative, judiciary, and the executive powers. This is considered
as one of the constitutional principles of the state of law and the
respect and promotion of the independence of law.
2- People who will hold judicial positions should not be
discriminated on the basis of religion, sex, belief, nationality, or
sect.
3- The judge is absolutely prohibited from practicing political or
partisan work.
4- All people have the right to carry on a lawsuit.
5- No special or exceptional courts should be formed.
6- Trial sessions should be open unless otherwise decided by the
court.
7- The law decides how tribunals are formed as well as the conditions
of appointing the judges.
Twenty First Principle:
1- A Supreme Body to combat financial and administrative corruption
should be formed. Severe legal measures should be taken against
people who are involved in such corruption regardless to their
positions and responsibilities. This is in addition to attempts that
should be made to handle the aspects of corruption by virtue of the
law.
2- No official or high official should have constitutional or legal
immunities.
Twenty Second Principle:
1- Right of asylum is guaranteed to any person who is considered a
refugee according to the international conventions.
2- People who have political asylum should not be extradited.
3- International criminals should not be given the right to political
asylum or forgiveness. They do not enjoy any insusceptibility and
their crimes should not be dropped through prescription.
Twenty Third Principle:
1- People have to pay financial taxes that should be imposed by the
law. One unified currency should be minted by virtue of the law.
2- The writing on the currency should be in Arabic, Kurdish, and
English.
Twenty Fourth Principle:
1- The constitutional institutions for the federal state consist of a
national parliament and the council of nationalities of the regions
in accordance with law and democratic principles.
2- Women participation should not be less than 50% in those
institutions.
Twenty Fifth Principle:
The Law determines the functions of the prosecution and its
institutions and bodies in the Iraqi Federal State.
Twenty Sixth Principle:
1- The laws and regulations should be published in the official
newspapers in Arabic and Kurdish and they should be effective on the
day of their release unless otherwise stated by the law.
2- The law or judgment should not be retroactive if it is not in
favour of the accused.
3- The Permanent Constitution should not be modified unless one third
of the members of the National Assembly agree.
Twenty Seventh Principle:
1- The accused is innocent until the court proves him guilty.
2- The right to defense is a sanctified in all the stages of the
trial on the basis of law. Violence or torture to win confession is
prohibited.
3- One's dignity should be protected. The practice of any form of
physical or psychological torture is prohibited. One who is hurt
should be compensated for. No person should be put to custody or
imprisoned except by virtue of the law.
4- Houses have sanctity. They should not be penetrated or inspected
except according to the law.
5- Punishment is personal; and there is no crime and no penalty
without a provision. Punishment is for the deed, which is considered
a crime by the law after being committed. No more severe penalty than
what is decided should be carried out.
Twenty Eighth Principle:
The confidentiality of posting, telegraphing, telephoning, and
electronic messages should be warranted.
Twenty Ninth Principle:
The freedom of embracing religion, beliefs, and the practice of
religious activities and rituals should be legally insured; provided
that they should not be at odds with rules of decorum or conduct.
Thirtieth Principle:
1- Inheritance is an insured right that is organized by the law.
2- All Iraqis and non-Iraqis have the right to real estate and
ownership. Ownership can not be expropriated from a person except due
to a judgment passed by a relevant court after a fair compensation
made for the person.
Conflicting statements were heard from the members of the Governing
Council and the Civil Governor of Iraq, Ambassador Paul Bremer,
regarding nonintervention of external parts in the preparation of the
Basic Law or the Interim Constitution. On the one hand, Mr. Bremer
made it clear that neither he nor the British representative did
interfere in any Iraq-related issue regarding the Interim
Constitution. On the other hand Dr. Mohammed Bahr al-Aulum stated
that the CIA imposed some provisions, which were in English and were
added by a person to the Interim Constitution. Elsewhere, the
president of the Governing Council Mohammed Bahr al-Aulum confessed
that the CIA had a role in the writing of the constitution, but their
role did not exceed consultation. However, other members of the
Governing Council stated that most of the articles of Interim
Constitution came from the outside of Iraq and were written in
English.
Review the aforementioned statement on the
[REMOVED DEAD LINK]
Review the provision of the two articles below, from the Law of State
Administration for the Transitional Period, regarding the preparation
for the permanent constitution.
Sixtieth Article:
The National Assembly is to present a draft of the Permanent
Constitution of Iraq. The Assembly is likely to do that by
encouraging discussions about the constitution in open, public, and
periodic meetings all over Iraq and through the mass media. It should
also take proposals and suggestions from the people of Iraq.
Sixty-first Article:
a - The National Assembly should prepare the draft of the Permanent
Constitution before August 15, 2005.
b - The draft will be shown to the Iraqi people to approve it through a
general referendum. In the period before the referendum the draft
should be published so that the people might have the chance to
discuss it in advance.
c - The referendum is successful and the Constitution is approved if
the majority of the voters of Iraq agree on it, and if it is not
rejected by one third of the voters in three or more provinces.
d - When the Permanent Constitution is approved through the referendum,
general elections should be made before December 15, 2005. The new
government will take charge of authority before December 31, 2005.
e - If the Constitution is not approved through the referendum, the
Assembly will be dissolved and a new assembly should be elected
before December 15, 2005. The new National Assembly and the new
Government should take charge of authority before December 31,2005.
Yet the final dates to issue a new draft of the Permanent
Constitution might undergo changes provided that they should not
exceed a year. The National Assembly will be entrusted to issue a new
draft for another Permanent Constitution.
f - When necessary, the president of the National Assembly is allowed
after the approval of the majority of the members to demand for extra
time for the completion of the draft before August 1, 2005. The
presidential council then may extend the period to six months that
can not be extended again.
g - If the National Assembly did not finish the draft before August 15,
2005, and did not demand for extension of the period as mentioned in
item (d) above, then the provision of item (c) can be applied.
Courtesy
International Institute for Middle-East and Balkan Studies (IFIMES) -
Ljubljana
The International Institute for Middle-East and Balkan Studies
(IFIMES) in Ljubljana, Slovenia, regularly analyses events in the
Middle East and the Balkans. Dr Munther Al Fadhal, Member of Council
of International Institute IFIMES, presents the basic principles of
the new Iraqi constitution. We have published his complete proposal
of the Basic Principles of the Permanent Constitution of the New
Iraq.
Dr. Munther Al-Fadhal
Member of Council of International Institute
for Middle East and Balkan Studies (IFIMES),
Ljubljana, Slovenia, EU.
http://www.noticias.info/asp/aspComunicados.asp?nid=49970&src=0
Feb 27 2005
IRAQ : Basic principles of the permanent constitution of the new Iraq
/noticias.info/
Fuente: Kurdistan Regional Government (KRG)
http://www.krg.org/
A Speech to be delivered by Dr. Munther Al-Fadhal in the conference
of Federalism and the Future of Democracy in Iraq that will be held
in April 2005, Poznan University - Poland
In 1925, the first constitution of the State of Iraq was issued under
the name of Basic Law. This was brought about by constitutional
institutions built by all Iraqi ethnicities, religion followers and
communities; with clear transparency. That was the first permanent
constitution of the state of new Iraq that has not witnessed any
other permanent constitutions so far. Since the monarchy rule was
toppled down on July 14, 1958, many constitutions have appeared and
lots of modifications in them have indicated political turmoil,
instability and the lack of institutional work in Iraq; constitutions
in which the law of force dominated the force of law.
The Basic Law went under lengthy discussions before being issued. It
included numerous texts that organized the relationship among the
three powers: the judiciary, the executive and legislative powers.
Mr. Abdal Muhsin al-Sa'dun became the first Iraqi Prime Minister who
dreamt of founding a state of law. His vision about the rights of the
Kurdish People and respecting the rights of the other nationalities
was clear. The Iraqi State took a simple form and the rule was
central in the Iraqi capital city Baghdad. The monarchy system
continued from 1921 to July 1958 witnessing much turbulence and so
many political crises including the Kurdish Revolution led by the
Sheikhs of Barzan such as, the revolution of Sheikh Abdussalam
Barzani and that of Sheikh Ahmed Barzani in the beginning of the
thirties. Those were followed by the leader Mustafa Barzani's
revolution in September of 1961, which was a continuance of the
revolution led by Sheikh Mahmud al-Hafeed after World War I. Many
attempts that have been made to build democracy through resolving the
Kurdish Question justly and peacefully have failed and, thus,
influenced all life aspects and conditions of Iraq.
The conditions in Iraq have not stabilized since July 14, 1958. Many
interim constitutions have been passed; their contents and laws being
disrespected. The independence of the Judiciary power was also
disrespected and the ruler was above the law. There is no doubt that
such deterioration, the absence of law, the violation of human
rights, and the phenomenon of monocracy that had brought disasters to
the Iraqis commenced with the coming of the Ba'thist Rule to power in
1968. It became even worse and more dangerous when Saddam seized
power in 1979 who over extolled national integrity and led Iraq to a
civil war against the Kurdish people. He acted treacherously towards
the eastern and western neighbours. He destroyed the country due to
his dictatorial rule, crippled the constitution and dismissed the
law. The consequences of the internal and external wars on the Iraqis
can be felt up to the present and their impacts will continue for a
long time.
For the sake of a pluralistic and democratic Iraq that enjoys
stability and peace based on the principle of freely chosen
federation, which respects the Basic Law, operative laws, human
rights, and the international commitments. An Iraq which is free from
discrimination due to sex, colour, ethnicity, nationality, religion,
and thought. An Iraq in which women play a role that corresponds with
the human values in life. For the sake of a neutral Iraq away from
the wars. An Iraq in which constitutional institutions, civil
society, and the integrity of law, are established. This is to be
away from the idol-worship and the military and totalitarian rules
that are totally at odds with the principles of democratic rule. For
the sake of an Iraq in which all the nationalities enjoy freedom,
stability, and security; in which every party recognizes the others'
rights, respects the peoples' rights of self-determination and
consolidates principles of peaceful succession; there should exist a
permanent constitution for the country. This is to be equivalent to
the Basic Law or as the Supreme Law of the Iraqi Federal State to
which all should yield, the ruler and the ruled. This is because the
basic fundamentals of the state of law are to have a permanent
constitution, to work for the separation of powers; to consolidate
the integrity of law; to respect the progression of legal rules; to
protect the rights of the people and to work for the independence of
the tribunal system.
To activate the role of women in life as they constitute half of the
society and to make them equal to men in their rights, which maintain
and confirm their human identity and repeal all forms of
discrimination against them. In order to spread the culture of human
rights and the right of opposition, to build up the principles of
tolerance and moderation; to cast away prejudice and partiality, to
fight terrorist actions wherever they come from; and to build a
civilized state that plays its role in the regional and international
scenes; the basic principles of the permanent constitution of the New
Iraq should be formulated. What are these principles? To investigate
this the subject should be divided as follows:
First: Legal Observations on the Law of State Administration .
Second: General Principles and Basic Rights of the Permanent
Constitution of the New Iraq.
First: Legal Observations on the Law of State Administration
After the liberation of Iraq on April 9, 2003 from the most repulsive
and fascist regime since the downfall of Nazism in 1945, the
Governing Council that had been established after the liberation to
run Iraq for a transitional period drafted the Iraqi Law of State
Administration on March 8, 2004, which was formed after the
liberation to administer the Iraqi State for the transitional period
that had o precede the constitutional institutions. The Law of State
Administration included the basic rules and principles of the
permanent constitution of the New Iraq. To grasp the rules that will
determine the identity and future of Iraq after dictatorship (The
Arabic Nazism), some observations should be stated about the
aforementioned Law so as to be acquainted with the basics of the
Permanent Constitution of the New Iraq.
After real diligence the Interim Constitution appeared. That was on a
famous international day, the Women's Day, on March 8, 2003. It was
an occasion that brought to mind what was agreed on Saddam and the
Shah of Iran on March 6, 1975 according to which Saddam gave up half
of Shat al-Arab in return for Shah's pledges to stop the Iranian
logistic support to the Kurdish liberation movement in Iraqi
Kurdistan. The event also brought to mind the courageous Kurdish
uprising as well as that of the people of the south against the
Tyrant and his regime. In 1991 which eventuated in the death of
hundreds of thousands of innocent civilians in the country. The
defeated regime bombed the uprising cities with missiles and buried
thousands of innocent civilians in mass graves. The occasion also
reminded us of many other significant events on the level of Iraq as
well as on the international level.
Various conflicting reactions were noticed after the issuance of the
Law. Some supported it, others rejected, and some were in-between.
Therefore; we will not touch on to the regional and international
impressions regarding the Law as this is purely an Iraqi internal
affair. We also do not mean to touch on some of the political
reactions by some religious authoritative references that take a
biased and chauvinistic standpoint like most of the Arabs and some of
our brothers from other ethnicities. This is because what appeal to
us are the legal aspects and the organization and management of the
Iraqi State and its institutions until the issuance of the Permanent
Constitution of the Iraqi Federal State. It seems that one of the
legal issues that are raised is the question always asked: can a
council, which is not elected, be incumbent upon an elected one? Does
the Governing Council have the legitimate right to pass such a law?
And what is the difference between the law and the constitution. To
attempt such questions it should be stated that the venerable
Governing Council is a legitimate council even if it does not
represent all the Iraqi community. According to the Geneva Convention
of 1949, the occupying authority should administer the occupied
country and protect its civilians. One of the duties of that
authority is to form an administration from the Iraqis to run the
state affairs. Besides, the parties in the Governing Council
constitute the majority of the political parties and the influential
political movements Iraq's had so far. Hence they constitute the
majority of the Iraqis such as, Kurdistan Democratic Party, Patriotic
Union of Kurdistan, the Iraqi Communist Party, the Da'wa Party, the
Supreme Islamic Council, the Iraqi National Conference, and the Iraqi
Islamic Union. This is in addition to some Iraqi personalities who
have struggled against dictatorship and are locally famous and
well-reputed.
Thus, in spite of all the trouble and opposition from the inside and
outside of Iraq, the Council gains legitimacy to exist and to take
power in co-operation with the Coalition Authority or the Occupation
Authority. What further asserts the legitimacy of the Council are the
resolution passed by the United Nations that organized the
relationship between the Council and the Coalition Authority and
recognized the former as legitimate. These resolutions include, the
1483 UN resolution on May 22, 2003, the 1511 resolution on October
16, 2003 which was concerned with the preparation for the
transference of integrity to the Iraqis, and finally the 1546
resolution on June 2004 regarding the transference of integrity. It
is therefore inferred that though the Governing Council was not
elected due to legal and incidental circumstances, it is legitimate
and it can pass laws and judgments like an elected council after the
approval of the Civil Ruler of Iraq; the latter being in support of
the Geneva Convention. Geneva Convention states that the Ruler can
pass laws and resolutions, and after he approves of the Interim
Constitution, it will acquire legitimacy under obligation according
to the international legal prerogatives of the mentioned Civil Ruler.
Besides, this law is an equivalent to an interim constitution of the
country for it is called the Supreme Law of the Country. Restrictions
are laid on any modifications or changes that might be done to its
items and provisions in a way that are in correspondence with its
importance and constitutional characteristic; as usually
constitutions are known for their flexibility and inflexibility to
change. In addition to all that, the coalition intervention in Iraq
to topple the regime down was legitimate according to the Security
Council resolutions to protect security in the world and to the
respect of human rights which is not an internal affair.
However, there are some observations about the Law. Some of these are
related to aspect of form and techniques of legislation that the Law
lacks. Others are objective and are related to the essence of the Law
and its items, whether stated or not, which should be redressed. We
hope to explicate some of these observations and the intention is to
be constructive and not to deconstruct, to show opinions and not to
impose them. This is for the sake of general interest and protection
of the rights of the Iraqis and in support of building the state of
law and constitutional institutions. The major points can be seen as
follows:
When the provisions of the law are reviewed, the reader who
specialized notices a clear weakness in the legal formula. It was
written by politicians and jurists who seem not to be well versed
about the formulation of such laws. There should be a clear-cut
relation between the wording and the content. They are usually clear
and transparent quoted expressions free from repetition and
wordiness. It would have been rather preferable to show the Law to a
number of jurists in the State Consultative Council at the Ministry
of Justice in cooperation with some other jurists and specialized
academicians in Kurdistan in order to set a sound legal formula.
This is in addition to many typing mistakes. And it seems that some
of the participants are not well versed in Arabic and thus have
translated the provisions from English, which has brought about a
poor style. Therefore; it is hoped that the Permanent Constitutions
might be written in partnership with some Iraqi experts who believe
in democracy to avoid the shortcomings discussed; especially when it
comes to the fact that the Permanent Constitution will represent a
crucial stage after so many years of absence of the law and the
paralyzing of the constitution terms. The following are some other
examples:
1- The political characteristic of the preamble: It is likely for the
preamble to have a legal mark that justifies the appearance of the
Basic Law. The preamble should depend on legal items rather than
political ones.
2- The Law has ignored the possibility of the fact that some of the
Iraqis may wish for the restoration of the monarchy system to Iraq as
well as the kind and nature of government in Iraq. This made the
Secretary of the League of Arab States state that the views and
standpoints of the Iraqis should be appreciated as respect to the
principles of democracy.
3- The 2nd article (B) includes a typing mistake.
4- The terminology used to describe the law is sometimes overlapping.
It is somewhere called `The Administrative Law for the Transitional
Period' and called `The Supreme Law of the Country' somewhere else.
There are also hard restrictions concerned with modifications in it
that ascends it to the level of a permanent constitution. There
should have been one unchangeable term to describe it: either a law
inferior to a constitution or a constitution that is superior to a
law. This overlapping terminology is there because the political
stamp dominates the legal one. Besides, the lack of Iraqi experts
while the final draft of the Constitution was being discussed. We
believe that it should be called `The Supreme Law of the Country'
until the Permanent Constitution is issued.
5- The Law does not point to the appended articles attached to the
Administrative Law for the Transitional Period that constitutes an
independent part of the articles as stated in item 1 - B of the 2nd
article in the Law.
6- The 4th article talks about (the system in Iraq) whereas the
correct expression should be the political system in Iraq. Besides,
the provision is at odds with the desire of some people for a
political monarchy system. It has imposed the republican system;
while the Iraqis in a referendum should have decided this after
making a clear and general census. Such census, however, can not be
made if the problems brought about by the former regime are not
resolved such as, the Kirkuk issue as well as the other cities that
underwent Arabization and ethnic cleansing. It is also appears that
the provision is an English translated one that has a poor style.
Accordingly, it is of crucial importance to distinguish between the
form of the Iraqi State which is a federal state and the system or
political system be it a monarchy or republican.
7- A notable mistake can be seen in article 2 where mention about the
elections is made without asserting the necessity of a general census
of the Iraqis. There are about four million Iraqis scattered all over
the world in addition to half a million Faili Kurds who have been
deported and deprived of citizenship after confiscating their
properties. These live in banishment and others were recently born
and have seen Iraq only on a map; they do not know where does lie due
to the policy of the former regime. There are also hundreds of
thousands of displaced people who are the victims of deportation and
ethnic cleansing of the cities of Kirkuk, Mandali, Khanaqeen, and
Zarbatia as well as other cities to which the people have did not go
back and so their original identity has been changed. Therefore; it
is not recommended to make the elections without considering the
deported people; and legally elections can not be made without a
general census so that all Iraqis, in and out of Iraq would have the
opportunity to participate. This point has to be considered as it
affects the legitimacy of the elections. Thus, the main question is:
how do we start making elections and writing the permanent
constitution without having a census? And should the food rations
card be such reliable evidence that the voters are Iraqis? We
certainly know that Saddam dropped so many of these cards after
displacing a lot of people. Other Iraqis who live abroad do not have
and do not need a food rations card and they certainly are looking
forward to take part in the elections through the Iraqi embassy as
any other civilized country in the world would do. The food rations
card is a primitive style adopted by the former regime for political
reasons. Besides, there are many people who have more than one card
in hope for getting more than one ration of food.
8- In article 3 this statement appears `Or is likely to affect Islam
or any other religion or ritual'. We believe that this is a
superfluous and an unjustified statement.
9- Article 6 states: `the Iraqi Interim Government will take
substantial steps to end the impacts of the repressive deeds by the
former regime such as, the coercive displacement, denaturalization,
the confiscation of movable and immovable properties, and firing
people from their positions in the government for political, ethnic
or sectarian reasons.' We believe that this text is deficient for it
ignore an important issue which the compensation of the aggrieved and
wronged Iraqis for religious reasons such as, the Christians, the
Jewish people, the Ezidians and the Sabi'a.
10- An item about Kirkuk occurs in article 58 of the Law of State
Administration for the transitional period to resolve the problems
resulted from Arabization, the splitting of districts and
sub-districts from this city, and altering its Kurdistani identity.
It states: `the former regime acted fraudulently with the
administrative boundaries of the city to achieve some political
goals. The Iraqi Interim Government or the presidency have to give
recommendation to the National Assembly to alter such partialities.
If the presidency did not approve collectively of a number of
recommendations, they have to appoint neutral arbitrators to achieve
that. And in case the presidential council could not agree on proper
arbitrators, they need to appeal to the Secretary General to appoint
a known international personality to do that.'
We think that the aforementioned statement is also deficient and it
does not serve peace or the interests of the nationalities in Iraq
for the reasons below:
First: The case of Kirkuk is an Iraqi pure issue and its file should
not be forwarded to international arbitrators, even if they are
neutral or collectively approved of, because that will allow other
parties to interfere on the basis of having other nationalities such
as the Turkmans. This has already been seen earlier when the media
channels in Turkey maintained that the Kirkuk case is not an Iraqi
internal issue. Moreover, an Iraqi expert would be certainly better
than a foreigner in understanding what has happened to this city and
its history as a problem of building peace in Kurdistan.
Second: The Law of State Administration formed the Constitutional
High Court devoted to settle the problems and conflicts between the
government of any region and the federal central government. Hence,
any dispute on Kirkuk can be forwarded to that Court for settlement.
Any decision passed by this Court about the issue should be lawful
and just and should consolidate the principles of the state of law.
Second: General Principles and Basic Rights of the Permanent
Constitution of the New Iraq
There is no doubt that the Law of State Administration for the
transitional period - if it did not provide the Kurdish people with all
their rights - can be considered a remarkable step towards resolving
the Kurdish Case justly and peacefully after years of internal
fighting and after offering huge sacrifices to assert the national
rights of Kurds. It has considered the rights of the Kurdish people
sincerely at the moment and it is hoped that the Faili Kurds issue
may be also considered as well as the victims of Arabization, ethnic
cleansing, deportation, the lost and all other victims of the former
regime.
The Law, furthermore, is a promising step towards respecting the
rights of the other nationalities such as, the Turkumans and the
Kildo - Assyrians; it is also a noticeable step towards securing the
rights of other religion followers and towards the practice of
religious rituals and the political and cultural rights. It is the
first time that such a Law confirms that the form of the Iraqi State
will be changed from a simple autocratic State to a pluralistic,
democratic, and parliamentary State based on federalism.
Before referring to the basics of the Iraqi Permanent Constitution of
the New Iraq after the liberation, it is necessary to state that the
American Bar Association (ABA) will form an Iraqi Constitution Work
Group (ICWG) at the beginning of 2005. This group will be formed from
Iraqis in and out of Iraq including the Iraqi Lawyers Union,
academicians, and people from human rights organizations,
non-governmental organizations, women organizations as well as some
Iraqi judges. These will draft the permanent constitution of the
country supervised by the ABA to build a federal, pluralistic and
democratic Iraq in which the human rights and principles of law are
respected. It is noteworthy that I presented a proposal for the
project of the permanent constitution of a federal, pluralistic, and
democratic Iraq while I was working with a group of Iraqi experts to
build democracy in Iraq that worked under he supervision of the
American State Department in the years 2001 - 2002 called DWG.
That proposal was approved by the Iraqi experts as well as by the
participants in the Iraqi Opposition Conference held on December 14,
2002 with two other proposals: the Bill of Iraqi Rights, and the
project of Federalism for the New Iraq after the Saddam era. As the
drafting of the Permanent Constitution and the of the New Iraq is
approaching, it is essential to demonstrate some of the most
important principles and basic rights of the Permanent Constitution
of the New Iraq. The following are thus taken from my proposal that
was presented to the American State Department and the Iraqi National
Forces several months before the Operation Iraqi Freedom.
First Principle: People are the source of the authorities and their
legitimacy.
Second Principle:
1- Iraq is a federal, pluralistic, and democratic state based on a
freely chosen federation between two essential partners, which are
the Arabic People and the Kurdish People.
2- The State of Iraq is based on ideological, political, religious,
and national pluralism dominated by the law.
3- The Arabs of Iraq are part of the Arab Nation.
4- The Kurds of Iraq are part of the Kurdish Nation.
5- The rights of other nationalities such as the Turkumans,
Kildo - Assyrians, and Armenians should be protected by virtue of the
Law.
Third Principle:
The system in Iraq is Republican. Powers are divided between the
federal government and the regional governments, governorates, and
local administrations according to the principles of federalism.
Fourth Principle:
1-Integrity and the land of Iraq are one. They are not to be
abandoned. The right of the Kurdish people to self-determination is
legitimate as well as its right to found an independent state if the
constitutional institutions approve of that after having a general
referendum in Kurdistan supervised by the United Nations.
2-The referendum to such determination is only limited to Kurdistan;
and the participation of the rest of Iraq would be illegitimate.
Fifth Principle:
1- Iraq is a neutral state and it does not go into any war.
2- The Iraqi armed forces are controlled by civil institutions.
3- The armed forces are absolutely banned from indulging into
politics or political work.
Sixth Principle:
1- Those who were hurt by the former regime should be compensated
morally and materially. A proportion of 5% of the oil revenues should
be for compensation and the reconstruction of the harmed areas in
Kurdistan and the south of Iraq.
2- Those who were killed, lost, people of the mass graves, the
victims of Halabja and Anfal, and the Faili Kurds, and the victims of
the middle and the south of Iraq are all to be recorded as the
martyrs of Iraq's National Movement.
3- The traces and remnants of Arabization, ethnic cleansing, and
displacement should be transparently cleared by virtue of the law.
Seventh Principle:
1- The Iraqis who were deported and who left the country, and were
deprived of citizenship, should be naturalized again; including the
Faili Kurds. The confiscated money and property should be restored
and those who were fired from their positions due top the repressive
policy adopted by the former regime should go back to their work.
2- The period passed should be counted as years of service for
pension reasons.
Eighth Principle:
The flag, slogan, and national anthem of Iraq should be set on the
basis of a law that takes into account the existence of two main
nationalities (the Arabs and the Kurds). They should symbolize
fraternity, multi-nationalities of Iraq and tolerance among them and
among different religion followers, and they should indicate
neutrality.
Ninth Principle:
1- Arabic and Kurdish are the official languages in Iraq.
2- The other nationalities like Turkumans, Kildo - Assyrians, and
Armenians have the right to education in their own languages.
Tenth Principle:
The Universal Declaration of the Human Rights that appeared on
December 10, 1948 and the supplement conventions should not be
segregated from the principles of the Permanent Constitution. The
international conventions and agreements that the Iraqi government
signs should be part of the legal system and should be respected and
committed to.
Eleventh Principle:
1- The Iraqis have equal rights and duties regardless to sex,
attitude, colour, ethnicity, belief, nationality, and religion; and
are equal before the law.
2- The Iraqis should not be denaturalized, banished, or prohibited
from entrance to Iraq.
3- As an exception to the above item, the person who is known to have
given false substantial information to obtain citizenship should be
deprived of it.
Twelfth Principle:
1- Iraqi citizenship and its regulations should be organized by the
law.
2- Iraqis should not remain without citizenship and passports.
3- Iraqis are allowed to have more than one citizenship.
Thirteenth Principle:
All kinds of freedom, public and private, should be preserved and the
individual's privacy should not be transgressed.
Fourteenth Principle:
The right to freedom of thought and expression should be protected.
Fifteenth Principle:
1- Every citizen has the right to the freedom of holding peaceful
meetings, establishing unions, and peaceful strike and
demonstrations.
2- Every citizen has the right to the freedom of possession, movement
and travel to any place as well as to return according to the law.
Sixteenth Principle:
Every Iraqi has the right to security, education, and health and
social insurance.
Seventeenth Principle:
Any three governorates (provinces) or more have the right to form a
region in accordance with the law. The border of any region should
not be drawn on the basis of sect, ethnicity, or nationality. Iraq
consists of the following regions; considering the fact that each
region has the right through a referendum to shape its relation with
the central federal government.
Kurdistan Region: Its geographical and administrative borders are
drawn on legal and historical basis. Kurdistan region should also
include Kirkuk according to the general census of 1957. The
conditions should be normalized and the impacts and remnants of
Arabization, ethnic cleansing, displacement, and the crimes of the
former regime should be eliminated. These should be done by restoring
the conditions geographically, administratively, and legally to the
period before the March Agreement of 1970.
The Center Region: It includes some of the other governorates with
out Baghdad which is the Capital of Federal state.
The South Region: This is the south federalism the borders of which
should be drawn on geographical, not a sectarian basis. It
administratively includes three governorates or more.
Eighteenth Principle:
1- Military service is a voluntary one; and should not be compulsory.
2- No group or party is allowed to form militias or semi military
bodies. People are not allowed to trade in, carry, and circulate
weapons or else permitted by the law.
Nineteenth Principle:
1- Death sentence or execution should not remain any more in the
Iraqi legal system after the trial of the former regime agents.
2- Death penalty should be cancelled in the Iraqi law.
3- Punishment should be there for reform, not for revenge.
Twentieth Principle:
1- A High Constitutional Court should be formed to monitor the
constitution of laws, specify them, and to preserve the separation of
legislative, judiciary, and the executive powers. This is considered
as one of the constitutional principles of the state of law and the
respect and promotion of the independence of law.
2- People who will hold judicial positions should not be
discriminated on the basis of religion, sex, belief, nationality, or
sect.
3- The judge is absolutely prohibited from practicing political or
partisan work.
4- All people have the right to carry on a lawsuit.
5- No special or exceptional courts should be formed.
6- Trial sessions should be open unless otherwise decided by the
court.
7- The law decides how tribunals are formed as well as the conditions
of appointing the judges.
Twenty First Principle:
1- A Supreme Body to combat financial and administrative corruption
should be formed. Severe legal measures should be taken against
people who are involved in such corruption regardless to their
positions and responsibilities. This is in addition to attempts that
should be made to handle the aspects of corruption by virtue of the
law.
2- No official or high official should have constitutional or legal
immunities.
Twenty Second Principle:
1- Right of asylum is guaranteed to any person who is considered a
refugee according to the international conventions.
2- People who have political asylum should not be extradited.
3- International criminals should not be given the right to political
asylum or forgiveness. They do not enjoy any insusceptibility and
their crimes should not be dropped through prescription.
Twenty Third Principle:
1- People have to pay financial taxes that should be imposed by the
law. One unified currency should be minted by virtue of the law.
2- The writing on the currency should be in Arabic, Kurdish, and
English.
Twenty Fourth Principle:
1- The constitutional institutions for the federal state consist of a
national parliament and the council of nationalities of the regions
in accordance with law and democratic principles.
2- Women participation should not be less than 50% in those
institutions.
Twenty Fifth Principle:
The Law determines the functions of the prosecution and its
institutions and bodies in the Iraqi Federal State.
Twenty Sixth Principle:
1- The laws and regulations should be published in the official
newspapers in Arabic and Kurdish and they should be effective on the
day of their release unless otherwise stated by the law.
2- The law or judgment should not be retroactive if it is not in
favour of the accused.
3- The Permanent Constitution should not be modified unless one third
of the members of the National Assembly agree.
Twenty Seventh Principle:
1- The accused is innocent until the court proves him guilty.
2- The right to defense is a sanctified in all the stages of the
trial on the basis of law. Violence or torture to win confession is
prohibited.
3- One's dignity should be protected. The practice of any form of
physical or psychological torture is prohibited. One who is hurt
should be compensated for. No person should be put to custody or
imprisoned except by virtue of the law.
4- Houses have sanctity. They should not be penetrated or inspected
except according to the law.
5- Punishment is personal; and there is no crime and no penalty
without a provision. Punishment is for the deed, which is considered
a crime by the law after being committed. No more severe penalty than
what is decided should be carried out.
Twenty Eighth Principle:
The confidentiality of posting, telegraphing, telephoning, and
electronic messages should be warranted.
Twenty Ninth Principle:
The freedom of embracing religion, beliefs, and the practice of
religious activities and rituals should be legally insured; provided
that they should not be at odds with rules of decorum or conduct.
Thirtieth Principle:
1- Inheritance is an insured right that is organized by the law.
2- All Iraqis and non-Iraqis have the right to real estate and
ownership. Ownership can not be expropriated from a person except due
to a judgment passed by a relevant court after a fair compensation
made for the person.
Conflicting statements were heard from the members of the Governing
Council and the Civil Governor of Iraq, Ambassador Paul Bremer,
regarding nonintervention of external parts in the preparation of the
Basic Law or the Interim Constitution. On the one hand, Mr. Bremer
made it clear that neither he nor the British representative did
interfere in any Iraq-related issue regarding the Interim
Constitution. On the other hand Dr. Mohammed Bahr al-Aulum stated
that the CIA imposed some provisions, which were in English and were
added by a person to the Interim Constitution. Elsewhere, the
president of the Governing Council Mohammed Bahr al-Aulum confessed
that the CIA had a role in the writing of the constitution, but their
role did not exceed consultation. However, other members of the
Governing Council stated that most of the articles of Interim
Constitution came from the outside of Iraq and were written in
English.
Review the aforementioned statement on the
[REMOVED DEAD LINK]
Review the provision of the two articles below, from the Law of State
Administration for the Transitional Period, regarding the preparation
for the permanent constitution.
Sixtieth Article:
The National Assembly is to present a draft of the Permanent
Constitution of Iraq. The Assembly is likely to do that by
encouraging discussions about the constitution in open, public, and
periodic meetings all over Iraq and through the mass media. It should
also take proposals and suggestions from the people of Iraq.
Sixty-first Article:
a - The National Assembly should prepare the draft of the Permanent
Constitution before August 15, 2005.
b - The draft will be shown to the Iraqi people to approve it through a
general referendum. In the period before the referendum the draft
should be published so that the people might have the chance to
discuss it in advance.
c - The referendum is successful and the Constitution is approved if
the majority of the voters of Iraq agree on it, and if it is not
rejected by one third of the voters in three or more provinces.
d - When the Permanent Constitution is approved through the referendum,
general elections should be made before December 15, 2005. The new
government will take charge of authority before December 31, 2005.
e - If the Constitution is not approved through the referendum, the
Assembly will be dissolved and a new assembly should be elected
before December 15, 2005. The new National Assembly and the new
Government should take charge of authority before December 31,2005.
Yet the final dates to issue a new draft of the Permanent
Constitution might undergo changes provided that they should not
exceed a year. The National Assembly will be entrusted to issue a new
draft for another Permanent Constitution.
f - When necessary, the president of the National Assembly is allowed
after the approval of the majority of the members to demand for extra
time for the completion of the draft before August 1, 2005. The
presidential council then may extend the period to six months that
can not be extended again.
g - If the National Assembly did not finish the draft before August 15,
2005, and did not demand for extension of the period as mentioned in
item (d) above, then the provision of item (c) can be applied.
Courtesy
International Institute for Middle-East and Balkan Studies (IFIMES) -
Ljubljana
The International Institute for Middle-East and Balkan Studies
(IFIMES) in Ljubljana, Slovenia, regularly analyses events in the
Middle East and the Balkans. Dr Munther Al Fadhal, Member of Council
of International Institute IFIMES, presents the basic principles of
the new Iraqi constitution. We have published his complete proposal
of the Basic Principles of the Permanent Constitution of the New
Iraq.
Dr. Munther Al-Fadhal
Member of Council of International Institute
for Middle East and Balkan Studies (IFIMES),
Ljubljana, Slovenia, EU.
http://www.noticias.info/asp/aspComunicados.asp?nid=49970&src=0