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With the deposition of the totalitarian Saddam’s Baath Regime in 2003, Iraq was faced with the challenge of establishing the rule of law, taking into consideration Iraq’s particular political, ethnic and religious circumstances. Currently the rule of law in Iraq gives an example of the difference between theory and practice. The Iraqi Constitution of 2005 contains many provisions, which together are more than sufficient to ensure the attainment of the Rule of Law. However, the implementation of the rule of law is hampered by many obstacles. |
I. Historical Background
The present-day Iraq covers the greater part of the territory of Mesopotamia. Here, the first laws of the world were adopted, and here the major schools of Islamic law emerged. Islamic law came to fruition in Iraq, especially during the Abbasid Empire (750-1258 AD), at a time when a constitutional law according to current understanding was unknown. Islamic law lacked a constitutional or legal code which settles constitutional issues. Islamic law was in general not a codified system according to the present Western pattern.
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After the military occupation of Iraq starting in 2003 by the United States of America and its allies, a transitional constitution (TAL - Transitional Administrative Law) was issued in 2004. The influential religious leader in Iraq, Al-Sistani, called strongly for elections to be held as soon as possible and thereby bring an elected government to power through the Iraqis themselves. He also emphasized that a constitution in Iraq could only be enforced if it was written by Iraqis and approved by a referendum. In fact the political forces created a draft constitution within a record time of three months, which was confirmed by a referendum on 15 October 2005. This constitution reflects the religious, ethnic and political diversity of Iraq.
II. Protection of Fundamental Rights and Freedoms
Article 37 of the Iraqi Constitution of 2005 contains many provisions for the protection of fundamental rights and freedoms:
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In a decision (No. 34 of November 24, 2008) the Iraqi Federal Supreme Court relied on these articles and cancelled a decision of the Iraqi Parliament which had deprived a parliamentarian of his membership because he had travelled to Israel.
III. Fair Trial
Article 19 of the Iraqi Constitution guarantees Fair Trial:
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Thirteenth: The preliminary investigative documents shall be submitted to the competent judge in a period not to exceed twenty-four hours from the time of the arrest of the accused, which may be extended only once and for the same period.
IV. Equality before the Law
The Iraqi Constitution contains many provisions that call for the equality of all citizens of Iraq, such as Article 14, 16, and 20.
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Article 49 Paragraph 4 requires a minimum quota of women in parliament of not less than one-quarter of the members of the Council of Representatives.
V. Separation of Powers
To anchor the rule of law in Iraq, the principle of the separation of powers is stated in Article 47 of the Constitution. Furthermore, the political system in Iraq is no longer a centralized presidential republic, as it was before, when all power was concentrated in one hand and abused, but now the political system is a federal and representative parliamentary system (Article 1 Iraqi Constitution). The power is no longer in the hands of one person who cannot be held responsible.
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It is remarkable that the Iraqi Constitution provides for independent commissions in addition to the three powers, for example the High Commission of Human Rights, the Independent Electoral Commission, and the Commission on Public Integrity (Article 102). These commissions are intended to strengthen the democracy and the rule of law in Iraq, which is seen critically by the executive power in Iraq, as in its opinion they serve to limit the powers of the executive.
VI. Endorsement of the Principle of a Tolerant Islam
Article 2 of the Iraqi Constitution declares Islam as the official religion of the state and as a foundation source of legislation, as is the case in most Arab countries. At the same time the Iraqi constitution reflects the religious and ethnic diversity of Iraq and stresses the protection of the rights of groups (Article 2 Paragraph 2, Article 3, Article 4, Article 7, Article 8 Paragraph 1, Article 14, Article 41, Article 42, Article 43 of the Iraqi Constitution).
It is noteworthy that the Iraqi Constitution stipulates that on the one hand no law may be enacted that contradicts established provisions of Islam and, on the other hand, no law may be enacted that contradicts the principles of democracy (Article 2 Paragraph 1). This can be seen as contradictory, but also as an endorsement for the tolerant and moderate form of Islam, and a ban on all expression of extreme tendencies in this religion.
VII. Protection for the Rule of Law
Furthermore, for securing the rule of law in Iraq, given the bad experiences with abuse of power by the military, the Iraqi constitution prohibits military interference in politics and the participation of the military in state affairs and requires that the military forces must be under the rule of civilian leadership (Article 9 Paragraph 1). Therefore, it is prohibited to employees of the military to run for political office or to support other candidates (Article 9, Paragraph 3). The same applies to employees of the Iraqi intelligence service, which are also subject to a civilian leadership (Article 9, Paragraph 4).
Forbidden is any threat to democracy, in particular any entity or program that adopts, incites, facilitates, glorifies, promotes, or justifies racism or terrorism or accusation of being an infidel (takfir) or ethnic cleansing, especially the Saddamist Ba’ath party in Iraq and its symbols, under any name whatsoever (Article 7).
VIII. Conclusion
The new Iraqi Constitution contains many provisions, which together are more than sufficient to ensure the attainment of the Rule of Law. Nevertheless, the implementation of the Rule of Law in Iraq is not easy, since this country was a police state for decades and was ruled by a totalitarian regime and therefore constitutional traditions had hardly existed in this country.
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However, Iraq meets all formal legal requirements, which would ensure this country's future progress. And it possesses all the necessary financial resources, due to the enormous oil reserves (about 11% of total oil reserves in the world).
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BibliographyAl-Istrabadi, Feisal Amin, Reviving constitutionalism in Iraq: Key provisions of the transitional administrative law. In: New York Law School Law Review 50/269, 2005, p. 269-302
Carlson, Scott, Establishing the rule of law. In: Georgia Journal of International & Comparative Law, 33/1, 2004, p. 119-141 Deeks at al., Iraq´s Constitution: A Drafting History. In: Cornell International Law Journal 40/1, 2007, p. 1-87 Hamoudi, Haider Ala, Toward a Rule of Law Society in Iraq: Introducing Clinical Legal Education into Iraqi Law Schools. In: Berkeley Journal International Law 23/112, 2005, p. 112-136. Hamoudi, Humam, My perceptions on the Iraqi constitutional process. In: Stanford Law Review, 59/5, 2007, p.1315-1320 |
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Iraqi Legal Database http://www.iraq-ild.org/ |
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2011) Mallat, Chibli Mallat, Iraq: Guide to Law and Policy, New York 2009
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