Federalism Keeps Iraqi Negotiators Talking

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Iraqi President Jalal Talabani greets Humam Hammoudi. Credit: REUTERS/Khalid Mohammed/Pool.

Iraqi President Jalal Talabani (Right) greets Humam Hammoudi, head of the constitution drafting committee, in Baghdad on August 22, 2005. Reuters hide caption

itoggle caption Reuters

Federalism and the relationship between Iraq's distinct regions and cultures is a sticking point in negotiations over a new constitution. Steve Inskeep speaks with Noah Feldman about the Iraqi draft constitution. Feldman, a professor of law at New York University, is a specialist in the relationship between religion and political authority. He advised the now-defunct Coalition Provisional Authority in Iraq.

The following is a partial text of the proposed draft constitution for Iraq. The Associated Press translated this partial text from the Arabic, using photographs of the documents. Due to the ongoing negotiations and the nature of translation, it should be noted that this text is not a final or official document.

PREAMBLE

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.

CHAPTER ONE: Basic Principles

Article (1): The Republic of Iraq is an independent, sovereign nation, and the system of rule in it is a democratic, federal, representative (parliamentary) republic.

Article (2): First, Islam is the official religion of the state and is a basic source of legislation:

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.

Second, this constitution guarantees the Islamic identity of the majority of the Iraqi people, and the full religious rights for all individuals, and the freedom of creed and religious practices.

Article (3): Iraq is a multiethnic, multi-religious and multi-sect country. It is part of the Islamic world and its Arab people are part of the Arab nation.

Article (4):

1st - Arabic and Kurdish are the two official languages for Iraq. Iraqis are guaranteed the right to educate their children in their mother tongues, such as Turkoman or Assyrian, in government educational institutions, or any other language in private educational institutions, according to educational regulations.

2nd - the scope of "official language" will be defined by the law.

a) issuing the official gazette in both languages

b) speaking, addressing and expressing in official domains, like the parliament, Cabinet, courts and official conferences, will be in either of the two languages.

Article (5): The law is sovereign, the people are the source of authorities and their legitimacy, which they exercise through direct, secret ballot and its constitutional institutions.

Article (6): Government should be rotated peacefully through democratic means stipulated in this constitution.

Article (7):

1st - Entities or trends that advocate, instigate, justify or propagate racism, terrorism, "takfir" (declaring someone an infidel), sectarian cleansing, are banned, especially the Saddamist Baath Party in Iraq and its symbols, under any name. It will be not be allowed to be part of the multilateral political system in Iraq, which should be defined according to the law.

2nd - The state will be committed to fighting terrorism in all its forms and will work to prevent its territory from being a base or corridor or an arena for its (terrorism's) activities.

Article (10): The holy shrines and religious sites in Iraq are religious and cultural entities. The state is committed to maintain and protect their sanctity and ensure the exercising of (religious) rites freely in them.

CHAPTER TWO: Rights and Freedoms

Part One: Rights

Article (14): Iraqis are equal before the law without discrimination because of gender, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.

Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body.

Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.

Article (17):

1st - Each person has the right to personal privacy as long as it does not violate the rights of others or general morality.

2nd - The sanctity of homes is protected. They cannot be entered or searched or violated except by judicial decision and in accordance with the law.

Article (19):

1st - The judiciary is independent, with no power above it other than the law.

2nd - There is no crime and no punishment except by the text (of law). And there is no punishment except for an act that the law considers a crime at the time of its commission. No punishment can be enacted that is heavier than the punishment allowed at the time of the crime's commission.

3rd - Trial by judiciary is a right protected and guaranteed to all.

4th - The right to defense is holy and guaranteed in all stages of investigation and trial.

5th - The accused is innocent until his guilt is proven in a just, legal court. The accused cannot be tried for the same accusation again after he has been freed unless new evidence appears.

6th - Every individual has the right to be treated in a just manner in all judicial and administrative procedures.

7th - Court sessions will be open unless the court decides to make them secret.

8th - Punishment is for individuals.

9th - Laws do not have retroactivity unless it has been legislated otherwise, and this exception does not include laws of taxes and duties.

Article (20): Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates.

Part Two: Freedoms

Article (35):

1st - (a) The freedom and dignity of a person are protected.

(b) No one may be detained or investigated unless by judicial decision.

(c) All forms of torture, mental or physical, and inhuman treatment are forbidden. There is no recognition of any confession extracted by force or threats or torture, and the injured party may seek compensation for any physical or mental injury that is inflicted.

2nd - The state is committed to protecting the individual from coercion in thought, religion or politics, and no one may be imprisoned on these bases.

3rd - Forced labor, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.

Article (36): The state guarantees, as long as it does not violate public order and morality:

1st - the freedom of expressing opinion by all means.

2nd - the freedom of press, publishing, media and distribution.

3rd - freedom of assembly and peaceful protest will be organized by law.

Article (37):

1st - Freedom to establish and belong to political organizations and parties is guaranteed, and it will be organized by law.

2nd - No person can be forced to join or remain a member of a political party or organization.

Article (38): The freedom of communications and exchanges by post, telegraph, telephone and by electronic and other means is guaranteed. They will not be monitored or spied upon or revealed except for legal and security necessity in accordance with the law.

Article (39): Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law.

Article (40):

1st - The followers of every religion and sect are free in:

(a) the practice of their religious rites, including the (Shiite) Husseiniya Rites.

(b) the administration of religious endowments and their affairs and their religious institutions, and this will be organized by law.

2nd - The state guarantees freedom of worship and the protection of its places.

Article (41): Every individual has freedom of thought and conscience.

Article (42):

1st - The Iraqi citizen has freedom of movement and travel and residence within Iraq and outside it.

2nd - No Iraqi can be exiled or forced out or forbidden to return to his nation.

CHAPTER THREE: The Federal Authorities

Part One: The Legislative Authority.

Article (47): The federal legislative authority is made up of the Council of Representatives and the Council of Union.

First: The Council of Representatives.

Article (48):

1st - The Council of Representatives is made up of a number of members at a proportion of one seat for every 100,000 people from the population of Iraq. They represent the entire Iraqi people and are elected by general, direct, secret ballot, and they take care to represent all groups of people.

Article (59): The Council of Representatives is given the following duties:

1st - legislating federal laws.

Second: The Council of Union.

Article (63):

1st - A legislative council called the "Council of Union" will be established and will include representatives of regions and provinces to examine bills related to regions and provinces.

2nd - The makeup of the council, the conditions for membership and all things related to it will be organized by law.

Part 2: The Executive Authority.

First, The President.

Article (65): The president of the republic is the president of the country and the symbol of the nation's unity and represents the sovereignty of the country and oversees the guarantees of adherence to the constitution, the preservation of Iraq's independence and unity and the security of its territory, in accordance to the law.

Article (68):

1st - The Council of Representatives elects from among the candidates a president of the republic by a two-thirds majority.

2nd - If no single candidate gets the requires majority, the two candidates with the highest votes will compete and whoever wins a majority of votes in the second round is declared president of the republic.

Second, the Cabinet.

Article (76): The prime minister is the direct executive responsible for the general policy of the nation, the general commander of the armed forces and carries out the administration of the Cabinet and presides over its sessions. The prime minister has the right to remove the Cabinet, with the consent of the Council of Representatives.

Part 3: The Judiciary

Article (85): The judiciary is independent and will be represented by courts of different kinds and levels, and they will issue their rulings according to law.

Article (86): Judges are independent, with no authority over them in their rulings except the law. No authority can interfere in the judiciary or in the affairs of justice.

Article (87): The federal judiciary will include the Supreme Judiciary Council, the Supreme Federal Court, the Federal Cassation Court, the Prosecutor's Office, the Judiciary Inspection Department and other federal courts that are organized by law.

First: The Supreme Judiciary Council

Article (88): The Supreme Judiciary Council will administer judicial affairs in accordance with the law.

Article (89): The Supreme Judiciary Council will exercise the following powers:

1st - administering and supervising the federal judiciary system.

2nd - nominating the head and members of the Supreme Federal Court and presenting their names to parliament for endorsement.

3rd - nominating the head of the Federal Cassation Court, the chief prosecutor and the head of the Judiciary Inspection Department, and presenting them to parliament for approval.

4th - proposing the annual budget for the federal judiciary system and presenting it to parliament for approval.

Second: The Supreme Federal Court

Article (90):

1st - The Supreme Federal Court is an independent judicial body, financially and administratively, its work and its duties will be defined by law.

2nd - The Supreme Federal Court will be made up of a number of judges and experts in sharia and law, whose number and the manner of their selection will be defined by a law that should be passed by two thirds of the parliament members.

Article (91): The Supreme Federal Court will have the following duties:

1st - overseeing the constitutionality of federal laws before they are issued.

2nd - overseeing the constitutionality of the laws and standing regulations.

3rd - interpreting the text of the constitution.

4th - ruling in cases that emerge from the implementation of federal laws.

5th - ruling in disputes between the federal government and the governments of the regions and the provinces and local administrations.

6th - ruling in disputes between the governments of the regions or provinces.

7th - ruling in accusations against the president of the republic, the prime minister and the ministers.

8th - endorsing the final results of parliamentary general elections.

Article (92): Resolutions of the Supreme Federal Court are bindings for all authorities.

Copyright 2005 by The Associated Press. All Rights Reserved.

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