Constitution of Iraq

Iraq's first constitution, which established a constitutional monarchy, entered into force under the auspices of a British military occupation in 1925 and remained in effect until the 1958 revolution established a republic. Interim constitutions were adopted in 1958, 1964, 1968, and 1970, the last remaining in effect de jure until the Transitional Administrative Law was adopted in 2003 after the fall of Saddam Hussein. In 1990, a draft constitution was prepared but never promulgated due to the onset of the Gulf War.

The current constitution was approved by a referendum that took place on 15 October 2005. The constitution was drafted in 2005 by members of the Iraqi Constitution Drafting Committee to replace the Law of Administration for the State of Iraq for the Transitional Period (the "TAL"). The TAL was drafted between December 2003 and March 2004 by the Iraqi Governing Council, an appointed body that was selected by the Coalition Provisional Authority after the Iraq War and Occupation of Iraq by the United States and Coalition forces.

Under a compromise brokered before the referendum, it was agreed that the first parliament elected pursuant to the new constitution would institute a Constitutional Review Committee with a view to determine whether the constitution should be amended. Any amendments agreed would have to be ratified by a referendum similar to the one that originally approved it. After this agreement was entered into, the Sunni-majority Iraqi Islamic Party agreed to back a Yes vote in the referendum that took place on October 15, 2005. The Constitutional Review Committee was constituted by the Iraqi parliament on 25 September 2006.{{Ref|constitutionalrevisioncommittee}}

Electoral Commission officials said at a news conference that 78 percent of voters backed the charter and 21 percent opposed it. Of the 18 provinces, two recorded "No" votes greater than two thirds, one province short of a veto. A two-thirds rejection vote in three of the country's 18 provinces (of which three—Mosul, Anbar, and Salahaddin—are thought to include Sunni majorities) would have required the dissolution of the Assembly, fresh elections, and the recommencement of the entire drafting process. Turnout in the referendum was 63 percent, according to commission officials.

The drafting and adoption of the new Constitution was not without controversy, however, as sectarian tensions in Iraq figured heavily in the process. The chairman of the drafting committee, Humam Hamoudi, regularly made statements which were interpreted as meaning that there would be no compromises on Sunni demands.International Crisis Group, "Unmaking Iraq: A Constitutional Process Gone Awry" ICG Middle East Policy Briefing 26 September 2005. The deadline for the conclusion of drafting was extended on four occasions because of the lack of consensus on religious language. In the end, only three of the 15 Sunni members of the drafting committee attended the signing ceremony, and none of them signed it. Sunni leaders were split as to whether to support the constitution. Saleh al-Mutlaq, the chief Sunni negotiator, urged followers of his Hewar Front to vote against it, but the biggest Sunni block, the Iraqi Accord Front did support the document after receiving promises that it would be reviewed and amended, taking into account their views. A Constitution Amendment Committee has been set up in this regard, but the progress has been slow. Notably, the same figure who chaired the drafting committee, Humam Hamoudi, is chairing the amendment committee as well.

{{See also|Members of the Iraqi Constitution Drafting Committee|Iraqi constitution ratification vote, 2005}}

The Transitional National Assembly of Iraq, which was elected in January 2005 pursuant to the Coalition Provisional Authority's Transitional Administrative Law, appointed a Constitutional Committee for the purpose of preparing a draft constitution by 15 August 2005. The Committee was initially made up of 55 members, all of whom were drawn from the Transitional National Assembly, but its membership was eventually expanded beyond the Assembly's numbers, in order to allow representatives from the Sunni Arab community to participate (given that the latter had boycotted the elections that gave rise to the Transitional National Assembly).

According to the Transitional Administrative Law, the Constitutional Committee was obliged to complete its work by 15 August 2005, and for the draft to be submitted to a referendum by 15 October 2005. However, by the beginning of August 2005, all parties were in agreement that a final agreement on some of the Constitution's most important elements, including federalism, was still far from complete. As a result, the Committee was effectively dissolved and replaced by an ad hoc body (referred to as the "Leadership Council"), which was composed of approximately 6 members and which continued to negotiate the constitution's final terms until three days before the referendum date.

The first draft of the proposed constitution was presented to the Transitional National Assembly on Sunday 28 August 2005. It described the state as a "democratic, federal, representative republic" (art. 1) (however, the division of powers is to be deferred until the first parliament convenes), and a "multi-ethnic, multi-religious and multi-sect country" (art. 3). The draft was approved, but political negotiations continued, in order to reach a compromise that would also ensure the support of Sunni groups, thus leading to consequent revisions and redrafting of several articles.

On 18 September 2005, the Transitional National Assembly of Iraq approved and adopted the final constitutional draft, that was then put to the public. The Constitution was finally adopted on 15 October 2005, in a national referendum. The Constitution was published on 28 December 2005, in the Official Gazette of Iraq (No. 4012), in Arabic original, and thus came into force.

Since there were several unofficial translations of previous drafts and proposals, that were created earlier, during the summer of 2005, an official translation of the Constitution, for international use (in English language) was produced, in cooperation between state authorities Iraq and the United Nations' Office for Constitutional Support.

{{Main|Amendment to the Constitution of Iraq}}

Under a compromise brokered before the referendum, it was agreed that the first parliament that was to be elected pursuant to the new constitution would institute a Constitutional Review Committee with a view to determine whether the constitution should be amended. Any amendments agreed would have to be ratified by a similar referendum to the one that originally approved it. After this agreement was entered into, the Sunni-majority Iraqi Islamic Party agreed to back a Yes vote in the referendum that took place on 15 October 2005. The Constitutional Review Committee was constituted by the Iraqi parliament on 25 September 2006. {{Ref|constitutionalrevisioncommittee}}

The Constitution sets out a multitude of basic assertions (unfortunately because of last minute changes to the constitution, most of the footnote references below to specific articles in the constitution are inaccurate):

• The Republic of Iraq is a single, independent and fully sovereign state.Constitution of Iraq, Article 1
• The system of government is a democratic, federal, representative, parliamentary republic.
• Islam is the state religion and a basic foundation for the country's laws,Constitution of Iraq, Article 2(1st) and no law may contradict the established provisions of Islam.Constitution of Iraq, Article 2(1st)(a)
• No law that contradicts the principles of democracy may be established.Constitution of Iraq, Article 2(1st)(b)
• No law that contradicts the rights and basic freedoms may be established.Constitution of Iraq, Article 2(1st)(c)
• 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 is guaranteed.Constitution of Iraq, Article 2(2nd)
• Iraq is part of the Islamic world and is a founding and active member of the Arab League and is committed to its charter.Constitution of Iraq, Article 3
• Iraq is a multiethnic, multi-religious and multi-sect country and Arabic and Kurdish are the official languages.Constitution of Iraq, Article 4(1st) Iraqis are guaranteed the right to educate their children in their mother tongues, such as Turkmen, Chaldean, and Assyrian, in government educational institutions, or any other language in private educational institutions, according to educational regulations.
• The Turkomen, Chaldean, and Assyrian languages will be official in the areas where they are located.Constitution of Iraq, Article 4(4th) Any region or province can take a local language as an additional official language if a majority of the population approves in a general referendum.Constitution of Iraq, Article 4(5th)
• Entities or trends may not advocate, instigate, justify or propagate racism, terrorism, "takfir" (declaring someone an infidel), or sectarian cleansing.Constitution of Iraq, Article 7(1st) The "Saddamist Ba'ath Party", regardless of the name that it adopts, is specifically banned.
• The country has a military and security services under the command of the civil authority, and will not interfere in politics, or be used in the transfer of authority.Constitution of Iraq, Article 9(1st)(a) Militias are prohibited.Constitution of Iraq, Article 9(1st)(b) Military officials may not hold office.Constitution of Iraq, Article 9(1st)(c)
• The constitution is the highest law of the land.Constitution of Iraq, Article 13(1st) No law may be passed that contradicts the constitution.Constitution of Iraq, Article 13(2nd)

The Constitution defines many rights and freedoms, and incorporates laws in many subject areas into the Constitution.Bammarny, Bawar, Rule of Law in Iraq, in: Matthias Koetter / Gunnar Folke Schuppert, Understandings of the Rule of Law in various legal orders of the World, Rule of Law Working Paper Series No. 16, Berlin ({{ISSN|2192-6905}}): http://wikis.fu-berlin.de/download/attachments/145424416/{{dead link|date=August 2017 |bot=InternetArchiveBot |fix-attempted=yes }} Bammarny+Iraq.pdf. It guarantees the rule of law,Constitution of Iraq, Article 15Constitution of Iraq, Article 28 equality before the law,Constitution of Iraq, Article 14 equal opportunity,Constitution of Iraq, Article 16 privacy,Constitution of Iraq, Article 17 inalienable nationality and dual nationality,Constitution of Iraq, Article 18 judicial independence,Constitution of Iraq, Article 19 the prohibition on criminal ex post facto laws, right to counsel, a public trial unless the court decides to make it a secret trial, a presumption of innocence, the right to participate in public affairs and the right to vote, to elect and to nominate,Constitution of Iraq, Article 20 freedom from extradition,Constitution of Iraq, Article 21 political asylum, "economic, social and cultural liberties", the right to work,Constitution of Iraq, Article 22 the right to join trade unions, ownership of personal property,Constitution of Iraq, Article 23 eminent domain powers, rights similar to the Four Freedoms (European Union),Constitution of Iraq, Article 24Constitution of Iraq, Article 42 minimum wage, universal health care,Constitution of Iraq, Article 31 free education,Constitution of Iraq, Article 34 dignity,Constitution of Iraq, Article 35 freedom from psychological and physical torture and inhumane treatment and the right to compensation, freedom from "compulsory service", limited freedom of expression, freedom of the press, and freedom of assembly,Constitution of Iraq, Article 36 the right to engage in sports, limited freedom of forming and of joining associations and political parties,Constitution of Iraq, Article 37 requirement of warrants for wiretaps,Constitution of Iraq, Article 38 freedom of religion,Constitution of Iraq, Article 39 freedom of thought, conscience and belief.Constitution of Iraq, Article 40

The federal government is composed of the executive, legislative, and judicial branches, as well as numerous independent commissions.

The legislative branch is composed of the Council of Representatives and the Federation Council.Constitution of Iraq, Article 46

{{main|Council of Representatives of Iraq}}

The Council of Representatives is the main elected body of Iraq. The Constitution defines the "number of members at a ratio of one representative per 100,000 Iraqi persons representing the entire Iraqi people."Constitution of Iraq, Article 47 The members are elected for terms of 4 years.Constitution of Iraq, Article 54

The council elects the President of Iraq; approves the appointment of the members of the Federal Court of Cassation, the Chief Public Prosecutor, and the President of Judicial Oversight Commission on proposal by the Higher Juridical Council; and approves the appointment of the Army Chief of Staff, his assistants and those of the rank of division commanders and above, and the director of the intelligence service, on proposal by the Cabinet.Constitution of Iraq, Article 58

{{main|Federation Council of Iraq}}

The Federation Council is composed of representatives from the regions and the governorates that are not organized in a region. The council is regulated in law by the Council of Representatives.Constitution of Iraq, Article 62

The executive branch is composed of the President and the Council of Ministers.Constitution of Iraq, Article 63

{{main|President of Iraq}}

The President of the Republic is the head of state and "safeguards the commitment to the Constitution and the preservation of Iraq's independence, sovereignty, unity, the security of its territories in accordance with the provisions of the Constitution."Constitution of Iraq, Article 64 The President is elected by the Council of Representatives by a two-thirds majority,Constitution of Iraq, Article 67 and is limited to two four-year terms.Constitution of Iraq, Article 69 The President ratifies treaties and laws passed by the Council of Representatives, issues pardons on the recommendation of the Prime Minister, and performs the "duty of the High Command of the armed forces for ceremonial and honorary purposes."Constitution of Iraq, Article 70

There also exists a Vice President which shall assume the office of the President in case of his absence or removal.Constitution of Iraq, Article 72

The Presidency Council is an entity currently operating under the auspices of the "transitional provisions" of the Constitution. According to the Constitution, the Presidency Council functions in the role of the President until one successive term after the Constitution is ratifiedConstitution of Iraq, Article 134 and a government is seated.Constitution of Iraq, Article 139

{{main|Prime Minister of Iraq|Council of Ministers of Iraq}}

The Council of Ministers is composed of the Prime Minister and his cabinet. The President of Iraq names the nominee of the Council of Representatives bloc with the largest number to form the Cabinet.Constitution of Iraq, Article 73 The Prime Minister is the direct executive authority responsible for the general policy of the State and the commander-in-chief of the armed forces, directs the Council of Ministers, and presides over its meetings and has the right to dismiss the Ministers on the consent of the Council of Representatives.Constitution of Iraq, Article 75

The cabinet is responsible for overseeing their respective ministries, proposing laws, preparing the budget, negotiating and signing international agreements and treaties, and appointing undersecretaries, ambassadors, the Chief of Staff of the Armed Forces and his assistants, Division Commanders or higher, the Director of the National Intelligence Service, and heads of security institutions.Constitution of Iraq, Article 77

The federal judiciary is composed of the Supreme Judicial Council, the Court of Cassation, Supreme Court, the Public Prosecution Department, the Judiciary Oversight Commission, and other federal courts that are regulated by law.Constitution of Iraq, Article 86 One such court is the Central Criminal Court.

{{main|Supreme Judicial Council of Iraq}}

The Supreme Judicial Council manages and supervises the affairs of the federal judiciary.Constitution of Iraq, Article 88 It oversees the affairs of the various judicial committees,Constitution of Iraq, Article 87 nominates the Chief Justice and members of the Court of Cassation, the Chief Public Prosecutor, and the Chief Justice of the Judiciary Oversight Commission, and drafts the budget of the judiciary.

According to the Judicial Authority Law of 1963, the Court of Cassation is the apex court of the judiciary. The Court of Cassation is the supreme judicial body for all civil courts. It is headquartered in Baghdad and consists of a president, a sufficient number of vice-presidents, permanent judges, not less than fifteen permanent judges, delegated judges or rapporteur judges as needed.{{cite web|url=https://wiki.dorar-aliraq.net/iraqilaws/law/1469.html|title=Judicial Authority Law No. 26 of 1963|language=ar}}

{{main|Supreme Court of Iraq}}

The Federal Supreme Court is an independent judicial body that interprets the constitution and determines the constitutionality of laws and regulations. It settles disputes amongst or between the federal government and the regions and governorates, municipalities, and local administrations, and settles accusations directed against the President, the Prime Minister and the Ministers. It also ratifies the final results of the general elections for the Council of Representatives.Constitution of Iraq, Article 90 In November 2022, the president of the Supreme Judicial Council, Chief Justice Dr. Faiq Zaidan described the name “Federal Supreme Court” as a misnomer, and suggested that the name be changed to “Constitutional Court” befitting its authorities.{{cite web|url=https://www.baidarcenter.org/en/wp-content/uploads/2022/11/bhuw331.pdf|title=An Exclusive Interview with Dr. Faiq Zaydan, President of the Supreme Judicial Council in Iraq|publisher=Baydar Center|page=6}}

{{main|Central Criminal Court of Iraq}}

The Central Criminal Court of Iraq is the main criminal court of Iraq.{{Citation needed|date=November 2008}} The CCCI is based on an inquisitorial system and consists of two chambers: an investigative court, and a criminal court.{{Citation needed|date=November 2008}}

The Independent High Commission for Human Rights, the Independent High Electoral Commission, and the Commission on Public Integrity are independent commissions subject to monitoring by the Council of Representatives.Constitution of Iraq, Article 99 The Central Bank of Iraq, the Board of Supreme Audit, the Communications and Media Commission, and the Shii Endowment Commission and Sunni Endowment Commission are financially and administratively independent institutions.Constitution of Iraq, Article 100 The Foundation of Martyrs is attached to the Council of Ministers.Constitution of Iraq, Article 101 The Federal Public Service Council regulates the affairs of the federal public service, including appointment and promotion.Constitution of Iraq, Article 104

The federal government has exclusive power over:

• Foreign policy and negotiationConstitution of Iraq, Article 107(1st)
• Fiscal and customs policy, currency, inter-regional and inter-governorate trade policy, monetary policy, and administering a central bankConstitution of Iraq, Article 107(3rd)
• Standards and weights,Constitution of Iraq, Article 107(4th) naturalization,Constitution of Iraq, Article 107(5th) the radio spectrum, and the mailConstitution of Iraq, Article 107(6th)
• The national budgetConstitution of Iraq, Article 107(7th)
• Water policiesConstitution of Iraq, Article 107(8th)
• The CensusConstitution of Iraq, Article 107(9th)
• Welfare programs
• Management of oil and gas, in cooperation with the governments of the producing regions and governoratesConstitution of Iraq, Article 109

Powers shared with regional authorities:

• regional customs
• electrical power
• environmental policy
• public planning
• health, and education

All powers not exclusively granted to the federal government are powers of the regions and governorates that are not organized in a region.Constitution of Iraq, Article 111 Priority is given to regional law in case of conflict between other powers shared between the federal government and regional governments.

{{main|Federal regions of Iraq}}

Chapter Five, Authorities of the Regions, describes the form of Iraq's federation. It begins by stating that the republic's federal system is made up of the capital, regions, decentralized provinces, and local administrations.

::*Part One: Regions

The country's future Regions are to be established from its current 18 governorates (or provinces). Any single province, or group of provinces, is entitled to request that it be recognized as a region, with

such a request being made by either two-thirds of the members of the provincial councils in the provinces involved or by one-tenth of the registered voters in the province(s) in question.

::*Part Two: Provinces not organized into a Region

Provinces that are unwilling or unable to join a region still enjoy enough autonomy and resources to enable them to manage their own internal affairs according to the principle of administrative decentralization. With the two parties' approval, federal government responsibilities may be delegated to the provinces, or vice versa. These decentralized provinces are headed by Provincial Governors, elected by Provincial Councils. The administrative levels within a province are defined, in descending order, as districts, counties and villages.

::*Part Three: The Capital

Article 120 states that Baghdad is the Capital of the Republic, within the boundaries of Baghdad Governorate. The constitution makes no specific reference to the status of the capital and its surrounding governorate within the federal structure, stating merely that its status is to be regulated by law.

::*Part Four: Local Administrations

Consisting solely of Article 121, Part Four simply states that the constitution guarantees the administrative, political, cultural, and educational rights of the country's various ethnic groups (Turkmens, Assyrians, etc.), and that legislation will be adopted to regulate those rights.

{{Portal|Iraq}}

• Iraqi Local Governance Law Library
• Coalition Provisional Authority

{{Reflist|20em}}

{{wikisource|Constitution of Iraq}}

; Final version, from official Iraqi an UN sources, also accepted as Wikisource text

• {{cite web |title=Constitution of the Republic of Iraq |url=https://iraqld.e-sjc-services.iq/legislations/showlegislation?lawbookid=25626 |website=Iraqi Legislation Base}}
• [https://web.archive.org/web/20110304074809/http://www.iraqinationality.gov.iq/attach/iraqi_constitution.pdf Iraq, Ministry of Interior – General Directorate for Nationality: Iraqi Constitution (2005)]
• [https://web.archive.org/web/20060725062941/http://portal.unesco.org/ci/en/files/20704/11332732681iraqi_constitution_en.pdf/iraqi_constitution_en.pdf UNESCO: Iraqi Constitution (2005)]
• [https://www.wipo.int/edocs/lexdocs/laws/en/iq/iq004en.pdf UN WIPO: Iraqi Constitution (2005)]

; Other sources with links to official texts

• [http://www.gjpi.org/library/primary/iraqi-constitution The Global Justice Project: Iraq – Constitution (legal overview and links to constitutional texts)]
• [http://www.zaidalali.com/resources/constitution-of-iraq/ A collection of several drafts prepared throughout 2005, including the final draft], English language translations prepared by Zaid Al-Ali

; Various drafts of the constitution and related texts

• [https://web.archive.org/web/20060221003620/http://meria.idc.ac.il/journal/2005/issue3/Iraqiconstitution/constitution.html Draft version (not final)], published in the Middle East Review of International Affairs (Vol. 9, No. 3, September 2005)
• [http://www.globalpolicy.org/security/issues/iraq/document/2005/0825drafttext.htm First published draft], Global Policy Forum (articles 30.2 and 46 missing)
• [https://www.usatoday.com/news/world/iraq/2005-08-24-iraqi-constitution-draft_x.htm First published draft], USA Today (articles 30.2 and 46 missing)
• [http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/24_08_05_constit.pdf First published draft], BBC (articles 30.2 and 46 missing)
• [https://web.archive.org/web/20080514171616/http://www.pogar.org/ The Programme on Governance in the Arab Region]
• [http://www.iq.undp.org/ United Nations Development Programme (Iraq Country Office)]
• [http://www.juancole.com/2005/08/islamic-law-primary-in-iraqi.html Islamic Law Primary in Iraqi Constitution]
• [https://web.archive.org/web/20051014093546/http://jurist.law.pitt.edu/currentawareness/iraqiconstitution.php Iraqi constitution legal news and resources]

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