Transitional Administrative Law (Iraq)
The Law of Administration for the State of Iraq for the Transitional Period is the new Iraqi constitution signed on March 8, 2004 by the Iraq Interim Governing Council. It is to come into effect in July 2004 following an anticipated official transfer of power from the coalition occupying force (led by the United States) to a sovereign Iraqi government, and it will be replaced after general elections, by a permanent constitution.
The preamble begins:
The people of Iraq, striving to reclaim their freedom, which was usurped by the previous tyrannical regime, rejecting violence and coercion in all their forms, and particularly when used as instruments of governance, have determined that they shall hereafter remain a free people governed under the rule of law.
And contains further, "...affirming today their respect for international law, ... working to reclaim their legitimate place among nations,... have endeavored at the same time to preserve the unity of their homeland."
Bill of Rights
Supporters lauded the constitution's guarantees of basic democratic rights, particularly:
- equality before the law (Article 12), guaranteeing the equality of women
- freedom of religion, though Islam is stated as the state's official religion
- freedom of speech
- freedom of the press
- Right to a "fair, speedy, and open trial" for all accused of crimes
- No unlawful arrest or detention
- Torture, and cruel and unusual punishment banned "under all circumstances"
- Right to private property guaranteed
Minority Rights
Part of the Law of Administration's explicit rejection of Iraq's former racist policy (also explicitly referenced) is embodied in the wording "The federal system shall be based upon geographic and historical realities and the separation of powers, and not upon origin, race, ethnicity, nationality, or confession."
The Law stipulates that both Arabic and Kurdish be the official languages of Iraq.
Political Structure
The constitution provides for a National Assembly, to be elected no later than January 2005. In the meantime, a transitional government will be formed, taking consultation from various sectors of Iraqi society and the United Nations.
The new government will be a democratic republic, with three separate branches of government.
The elected National Assembly will a unicameral legislature with 275 elected members. Members will elect a President of the Assembly, who will serve as a non-voting speaker, and two deputies. The Assembly is the chief lawmaking organ, and will be required to propose and pass bills in order to make law for the country.
The assembly will also elect a President of State who along with two deputies will form a "Presidency Council" to "represent the sovereignty of Iraq and oversee the higher affairs of the country." The council represents the executive branch of government and has the right to veto laws passed by the Assembly. The Assembly can then over-rule the Council with a two-thirds majority vote.
The Presidency Council appoints the Prime Minister of Iraq and cabinet, all who must be approved by the Assembly. The Prime Minister and his cabinet will exercise most of the day-to-day runnings of government, including control over the armed forces. The Assembly has a right to remove the Prime Minister with a vote of no confidence.
The new government thus has a very de-centralized authority, to prevent abuse. The President of Iraq's powers are specifically diluted by the "Presidency Council" in order to remove personality-driven leadership.
Judiciary
Local court justices will be appointed by local governments and their "juridical councils", with the Supreme Court being appointed by the Federal Government. The Supreme Court will have nine members and possess the ability to over-turn legislation they find unconstitutional.
The constitution also establishes several "National Commissions" to investigate and address recent concerns such as human rights and war crimes.
Kurdistan and Local Government
The new constitution recognizes the current government of Kurdistan as the legitimate government of the Kurds, and allows it to continue to exist within the new federal state.
Iraq will have elected governors and "Governorate Councils" for each of its 18 states, as well as elected mayors and city councils for each city. Elections will be held at the same time as National Assembly elections.
Role of Shariah
Shariah is addressed in two ways: 1."Islam is the official religion of the State and is to be considered a source of legislation." But decisions according to Shariah may not abrogate articles or guarantees: 2."Any legal provision that conflicts with this Law is null and void." Thus the Law of Administration circumscribes Shariah.
De-Ba'athification
Former Ba’ath Party members who want to run for office are required to sign documents explicitly denouncing the party and denying they possess any continuing ties to the organization or its principles.
Unlike Japan's post-war constitution, which was written by the general commanding the occupation forces, Iraq's new interim constitution was created by Iraqi civilians. Some critics within Iraq nevertheless say administrator Paul Bremer played too large a role in its creation; they specifically point out (information from Iraqi newspapers to follow).