Iraq

Table of Contents

Introduction

According to Article 1 of the Iraqi Constitution (English, Arabic), “The Republic of Iraq is an independent sovereign state. Its system of government is republican, representative (Parliamentary), democratic and federal.”

History of the Constitution

• Iraq enacted its first constitution under British auspices in 1925, becoming a constitutional monarchy. This constitution remained effective until the 1958 revolution established a republic in place of the monarchy. From 1958 to 1970, five provisional constitutions were enacted, the last holding as the law of the land until the fall of the Saddam Hussein regime in 2003.


• The U.S.-led coalition, which toppled the Baath regime, first instated a Coalition Provisional Authority (CPA) to oversee the creation of a new constitution and government. In March 2004, the Transitional Administrative Law (TAL), a provisional constitution, was signed by the Iraqi Governing Council (IGC), which was instated by the United States’ CPA. Authority was officially transferred to the IGC from the CPA in June 2004 and the TAL became law upon the transfer of power from the CPA to the Iraqi government.


• The Iraqi public elected the Iraqi transitional National Assembly in January 2005. A wide swath of Sunni voters boycotted the elections, resulting in their underrepresentation in the National Assembly, and in the writing of the new constitution.


• A committee composed of 55 members of the Iraqi transitional National Assembly was charged with drafting the new permanent constitution. The committee completed a draft by August 2005. It was adopted by the Iraqi Transitional Government in September 2005 and submitted to a referendum and approved in October 2005.


• To convince dissatisfied Sunni voters to approve the constitution in the referendum, the United States pushed the National Assembly to insert an article in the constitution that provided for an exceptional, quick amendment process for a period of four months after the election of the new Council of Representatives. A special committee would be created to suggest a package of amendments to be approved by the parliament and submitted to a new referendum. The committee was established and submitted some recommendations that were never discussed. It was still in existence in late 2010 although its mandate had long expired.


• The 2005 constitution was drafted and approved in great haste in order to respect a U.S.-imposed time table that allowed only a few months for the task. As a result, the constitution is an incomplete, at times unclear document and its provisions have repeatedly been flaunted, including the process of forming a government after the 2010 parliamentary elections. Many provisions, furthermore, remain inactive pending the enactment of laws regulating their implementation.

When the mandate of the Council of Representative expired in mid-2010, several important issues remained unresolved, despite lengthy discussions:

• The approval of an Oil Law, clarifying whether the central government or the regions had the right to issue exploration permits and sign oil-production contracts.
• Implementation of Constitutional Article 140 on Kirkuk. The article called for the holding of a referendum in Kirkuk, to allow its inhabitants to decide whether the city should be annexed to the Kurdish region.
• Also pending were the constitutional revisions suggested by the special committee formed in 2006, whose mandate had legally expired but continued to exist.

State Institutions

Unusual in the Arab world, the 2005 constitution does not create a presidential system, but vests executive power in the prime minister and his Council of Ministers, allowing the president a symbolic and honorary role as head of state but not of government.

Also unusual in the region is the fact that the constitution creates a de facto asymmetrical federal system. The Kurdistan region, which comprises three of the country’s eighteen provinces, has a large degree of autonomy, with its own elected parliament and regional government.

Although the other fifteen provinces have elected provincial councils, the councils have little power. Control over expenditures rests with the line ministries in Baghdad. The constitution recognizes the right of the provinces—individually or in clusters—to transform themselves into regions as Kurdistan has done.

Executive Branch

The President

The president is the head of state and:

• Issues special pardons
• Calls on the Council of Representatives to convene after election results are approved
• Ratifies international agreements
• Ratifies and issues laws enacted by the Council of Representatives
• Appoints ambassadors
• Issues presidential decrees
• Ratifies court-decreed death sentences

Article 64: The President of the Republic is the head of the state and a symbol of the unity of the country and represents the sovereignty of the country. He 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.

The president is elected by the Council of Representatives, with a two-thirds majority. His/her term in office is limited to four years, with the possibility of renewal for one additional term.

During the first term after the enactment of the constitution, the president was replaced by a three-person Presidential Council. That provision expired with the 2010 elections and the next president will serve alone.

• Jalal Talabani has been president since April 7, 2005 as head of the Presidency Council, which also included two vice-presidents, Adel Abdul Mahdi and Tariq al-Hashemi. The Presidency Council, as a whole, carried significant power, most importantly that of any one member of the council to veto government decisions.
• In the future, the president will only have the limited powers described above, with no veto over government decisions.

The Prime Minister

The prime minister:

• Appoints the Council of Ministers.
• Directs the Council of Ministers, presides over its meetings, and has the right to dismiss the ministers with the consent of the Council of Representatives.
• The prime minister-designate must present his Cabinet and its ministerial program to the Council of Representatives for approval by absolute majority.

Article 75: 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.

Nuri al-Maliki has been Iraq’s prime minister since May 2006.

The Council of Ministers

The Council of Ministers:

• Plan and execute state policies
• Propose bills
• Issue rules and decisions to properly implement law
• Prepare government’s budget and development plans
• Recommend people for various diplomatic, government, and military positions to the Council of Representatives
• Negotiate and sign international treaties

Legislative Branch

The Iraqi parliament is composed of two chambers, the Council of Representatives and the Federal Council. The latter has never been set up, and the law regulating its formation has not yet been enacted.

Council of Representatives (English, Arabic):

• Enacts laws
• Monitors the performance of the executive branch
• Elects the president, prime minister, and parliament speaker
• Ratifies international agreements and treaties
• Approves the appointment of various high-ranking judicial, diplomatic, and military officials
• May question and relieve the president from his post after Supreme Court conviction and with an absolute majority of vote.
• May question the prime minister and his ministers, as well as heads of independent commissions
• May issue a vote of no-confidence in any of the cabinet ministers with an absolute majority
• May, after questioning the prime minister and receiving a request from either the president or one-fifth of the Council of Representatives, withdraw confidence from the prime minister, thus forcing the government to resign.

The Federal Council:

• The Federation Council is yet to be formed, but is intended to be composed of representatives of the regions and the governorates that are not organized into regions.

Judiciary

Article 84: The Judicial authority is independent. The courts, in their various types and classes, shall assume this authority and issue decisions in accordance with the law.

Article 86: The Federal Judicial Authority is comprised of:

• The Higher Juridical Council
• Supreme Federal Court
• Federal Court of Cassation
• Public Prosecution Department
• Judiciary Oversight Commission
• Other federal courts that are regulated in accordance with the law

While listing all these bodies as part of the federal Judicial Authority, the constitution only regulates the Higher Juridical Council and the Supreme Federal Court.

Higher Juridical Court:

• Oversees Judicial Committees
• Manages affairs of Judiciary and supervises Federal Judiciary
• Nominates Chief Justice, Chief Public Prosecutor, Chief Justice of the Judiciary Oversight Commission, and members of the Federal Court of Cassation
• Proposes draft annual budget of the Federal Judiciary to the Council of Representatives.

Federal Supreme Court:

• Comprised of judges and experts in Islamic jurisprudence and other laws
• Oversees the constitutionality of laws
• Provides constitutional interpretation
• Settles issues arising from application of federal laws, regulations and procedures
• Settles disputes between the federal government and governments of regions, governorates, municipalities, and local administrations.
• Settles disputes between the governments of the regions and those of governorates
• Ratifies the results of the Council of Representatives general elections.

Independent Commissions

The constitution sets up a number of independent commissions, subject to the monitoring of the Council of Representative, which is also charged with enacting laws regulating them. The constitution mentions directly some of these independent bodies, but specifies more can be set up. This section of the constitution clearly shows the haste with which the document was prepared, since some of the commissions it mentions appears to be overlapping.

The constitution mentions explicitly:

• The High Commission for Human Rights
• The Independent High Electoral Commission
• The Commission for Public Integrity
• The Central Bank of Iraq
• The Board of Supreme Audit
• The communications and Media commission
• The Endowments Commission
• The Foundation of Martyrs
• A commission to establish rights of regions and of governorates not organized into region
• A commission to audit and appropriate federal revenue
• A Federal Public Service Council

Most of these independent commissions and bodies were never set up. For example, in January 2008 the Council of Representatives enacted a law to form a Justice and Accountability Commission to succeed the de-Baathification committee formed under U.S. occupation.

• Iraq’s Independent High Electoral Commission (IHEC) was first established in 2004 by the Coalition Provisional Authority and is responsible for organizing the elections. It is supported by the Electoral Team of UNAMI (United Nations Assistance Mission in Iraq), other UN agencies, and several international NGOs.


• The Iraqi Communications and Media Commission was established by CPA Order 65 (English, Arabic) in 2004 to regulate telecommunications.

Military

The military does not have a formal statutory role in the country, but is still considered an influential player with ties to the executive.

Political Environment

Political Parties

There are a large number of political parties in Iraq, most of them either formed with the purpose of opposing Saddam Hussein’s rule or formed after he was deposed in 2003. Most parties are easily identified as being Shi’i, Sunni, or Kurdish. Several of the major parties are simply clientelistic groups organized around one leader.

Many of the most important parties were organized either underground in Iraq or in exile before the overthrow of Saddam Hussein. They include the Islamic Supreme Council of Iraq, Da’wa, the Iraqi National Accord, the Kurdish Democratic Part,y and the Patriotic Union of Kurdistan.

Main alliances of political parties competing in the 2010 parliamentary elections:

Iraqiya/Iraqi National Alliance is the coalition that gained the greatest number of seats (91 seats) in the 2010 parliamentary elections. The main parties in Iraqiya are:

• Iraqi National Accord, which is led by former Iraqi prime minister Ayad Allawi, a secular Shiite.
• Iraqi Front for National Dialogue, led by Saleh al-Mutlaq, a Sunni. During the election campaign he was accused by the Justice and Accountability Commission of having been a member of the Baath Party and barred as a candidate, but the party competed anyway.
• Renewal List of Tariq al-Hashimi.

Although Iraqiya is led by Allawi, it has become the major organization representing Sunnis, sidelining the Iraqi Accord, the religious Sunni coalition that won the most Sunni votes in the December 2005 elections.

State of Law Coalition (I'tilāf Dawlat al-Qānūn‎):

• Is the coalition created and headed by Prime Minister Nuri al-Maliki in 2009, after breaking off from the United Iraqi Alliance, the umbrella organization for all Shi’i parties.
• Was first formed to compete in the 2009 provincial elections and gained control of most provincial councils.
• Maliki claims State of Law is a secular alliance of local and regional leaders, but his Da’wa Party, which has religious roots, remains the core of the coalition.
• Won 89 seats in the 2010 elections, trailing Iraqiya by two seats.
• Maliki’s insistence that he had the right to form the new government dragged Iraq in a protracted struggle for power between Maliki and Allawi.

The Iraqi National Alliance (al-Itilaf al-Watani al-Iraqi):

• Dominated the Iraqi parliament after the December 2005 elections, but has since lost ground later.
• This Shi’i coalition remains a powerful force in Iraq, coming in third in the 2010 elections. Two major parties dominate the INA:

• Islamic Supreme Council of Iraq: The Supreme Council for the Islamic Revolution in Iraq (SCIRI) was established in 1982 by Muhammad Baqir al-Hakim he was while in exile in Iran. In 2007, SCIRI changed its name to ISCI. ISCI was formerly the largest Shi’i party but has been weakened by the illness and death its leader, Abdul Aziz al-Hakim, and the fact that his son, Ammar al-Hakim, who took over after his death, is still new and unproven in the job.


• Sadrist Trend – Ahrar: The Sadrist Trend was established in 2003, after the U.S. occupation. But the Sadr family had long been an important part of the Shi’i resistance to the Saddam regime as well as a leading family among religious scholars. Moqtada’s father, Mohammed Sadiq al-Sadr, was assassinated on Saddam Hussein’s orders in 1999. Since then, Moqtada has led an underground movement that established control over parts of southern Iraq and some neighborhoods in Baghdad soon after the U.S. invasion. The Sadrist Trend has remained a mixture of political party, underground organization, and armed group. Appealing to many impoverished Shi’i around Baghdad and in the south, Sadr’s Ahrar list established itself as the strongest component of the INA.


• The coalition also includes several smaller parties, including Ahmad Chalabi’s Iraqi National Congress and former prime minister Ibrahim al-Jaafari’s National Reform Movement.

The Democratic Patriotic Alliance of Kurdistan includes three major Kurdish parties: the Kurdish Democratic Party (KDP), the Patriotic Union of Kurdistan (PUK), and Gorran (Movement for Change). It won 43 seats in the 2010 national legislative elections.

• The KDP and the PUK are well-established, historical parties advocating Kurdish rights—the KDP since 1946, and the PUK since 1975. Together, they form the Democratic Patriotic Alliance of Kurdistan and are represented in the Iraqi parliament. They also control the Kurdistan Regional Government and the Kurdish Regional Assembly.


• Gorran, or the Movement for Change, a splinter group of the PUK, was formed only in the run-up to the August 2009 elections for the Kurdistan regional parliament, in which it fared well, gaining 25 of 111 seats. Gorran, along with the Islamic Union of Kurdistan (which won thirteen seats in the Kurdistan parliament), has cooperated with the Kurdistan Alliance in order to present a strong Kurdish voice on the national front.

Two smaller coalitions also won seats in the 2010 parliament:

The Iraq Accord Front, also known as Tawafuq, is a Sunni coalition that describes itself as being secular, but is led by the Iraqi Islamic Party. Tawafuq held 44 seats in the previous parliament and was the most important Sunni organization, but it began to disintegrate as several prominent personalities broke away to form their own parties. As a result, the Iraq Accord Front only won six parliamentary seats in 2010.

The Unity Alliance of Iraq is a non-sectarian grouping of parties and individuals who are seen as secular nationalists. The coalition was formed for the 2010 parliamentary elections and won four seats. Its leadership includes Interior Minister Jawad Bolani, Awakening Council leader Ahmad Abu Risha, and Sheikh Abdul Ghafour al-Sammuraie.

Reforms under discussion:

On November 2010, Iraqi lawmakers approved an agreement that would bring all of Iraq's feuding political blocs into a new government led by Shiite Prime Minister Nouri al-Maliki, although deep disagreements remain about the role to be played by the country's minority Sunnis. Click here for more.

Election Results

Iraq held three parliamentary elections since the overthrow of Saddam Hussein:

• In January 2005, elections were held for the transitional National Assembly. The United Iraqi Alliance led in election results.
• In December 2005, following the ratification of the Iraqi constitution, general elections were held for the Council of Representatives. The United Iraqi Alliance also led in results.
• In 2010, the Iraqis held their second parliamentary elections since the ratification of its 2005 constitution. In these elections, Ayad Allawi’s Iraqiya led with 91 seats and was trailed by Maliki’s State of Law Coalition with 89 seats.

Results for parliamentary elections (CoR) held on March 7, 2010:

Party/Coalition	Seats Won
Iraqiya/Iraqi National Movement	91
State of Law (Da’wa)	89
Iraqi National Alliance (ISCI, Sadrist Trend)	70
Kurdistan Alliance (PUK, KDP)	43
Gorran/Change	8
Iraqi Accord	6
Unity Alliance of Iraq	4
Kurdistan Islamic Union	4
Jama’a Islamiya of Iraq	2
Minority seats	8

• Click here for detailed results in Arabic and click here for full election coverage from Carnegie.


• Voter Turnout: 62 pecent.


• 306 political parties registered to run in the Council of Representatives elections.

Results of the Kurdistan Regional Government (KRG) legislative elections held on July 25, 2009:

Party	Seats won
Kurdistan List (KDP and PUK)	59
Gorran/Change	25
Reform and Service List	13
Others	14

Results of elections for Iraq’s provincial council election held on January 31, 2009:

Party	% of Vote
State of Law	19.1
Shaheed Al-Mehraab (ISCI)	6.8
Independent Free Movement (Sadrist Trend)	6.1
Iraqi Accord	6.3
Iraqi List (Iraqiya)	5.7
National Reform Trend	3.8
Kurdish Brotherhood Alliance	5.0
National Iraqi Gathering (Mutlak’s list)	4.6
Al Hadba’a	6.1
Awakening Councils	0.8
Others	35.7

Voter turnout: 44 percent.

There were 427 parties and 14,431 candidates registered for the provincial elections, vying for 440 seats.

The elections were held in fourteen of Iraq’s eighteen governorates. Excluded were the three provinces that form the Kurdistan region and Tamim, where no agreement could be reached over who had the right to vote in the disputed city of Kirkuk.

Civil Society and Nongovernmental Actors

The formation of civil society organizations in Iraq is a recent development that started after the overthrow of Saddam Hussein with support and encouragement from the United States. As a result, civil society organizations remain by and large weak and donor-dependent. Formation of NGOs has been hampered by the security situation and the absence of an NGO law. The Council of Representatives approved an NGO law in January 2010, but security remains an obstacle.

There are two umbrella organizations representing civil society groups:

• The NGO Coordination Committee for Iraq (NCCI) was formed in April 2003 to coordinate aid responses and determine priorities and needs. The NCCI began with fourteen organizations and developed a role in emergency and crisis situations. It now brings together more than 80 international and 200 Iraqi NGOs.


• The Iraqi Commission for Civil Society Enterprises has brought together over 1,000 local and international NGOs and civil society organizations (CSOs) with the aim of coordinating their work.

Civil and Political Rights

Personal Liberties

The Iraqi constitution provides for:

• Equality before the law
• Freedom of religion; freedom of conscience and belief; freedom of expression, freedom of the press, and freedom of assembly; freedom from inhumane treatment
• Freedom to form and join associations and political parties
• Equal opportunity; Universal healthcare; Free education
• Right to privacy; right to ownership of property
• Inalienable nationality
• Judicial independence, right to counsel, presumption of innocence; warrants required for wiretaps; court order required for secret trial
• Right to vote, elect, and nominate; right to participate in public affairs
• Right to work and to join unions; minimum wage

Despite the constitutional guarantees, many of these rights and freedoms are violated by the government, the U.S. forces, and well as militant groups that have been active in Iraq for the past few years, according to an Amnesty International report. The report singles out, among other violations, the use of the death penalty, sometimes based on “unfair trials and forced confessions.”

Human Rights Watch provides several reports on the state of justice and human rights in Iraq and in Iraqi Kurdistan.

Legislation Regulating the Exercise of Rights

Political Party Laws

• The constitution (Article 39) guarantees the freedom to form and join associations and political parties in accordance with a law to be enacted by the Council of Representatives.


• The 2004 Law on Political Parties (Arabic) states that all political entities must officially register with the Independent Higher Electoral Commission (IHEC). The law recognized independent candidates as political entities also to be registered with the IHEC.


• Political entities must follow all laws and directives issued by the IHEC. The commission has the power to punish entities in various ways if they are seen as undermining the elections and/or not following proper procedures.


• No political entity is allowed to have any ties or be funded by armed groups or militias.


• Political entities are to display caution and not incite violence or hatred against others or to use scare tactics and/or terrorism.


• Political entities (exempting individuals) must have documents describing their internal order and procedures, including those pertaining to the selection of leaders and nominees. These documents must be available to any citizen who requests them.


• Political entities are allowed to form coalitions.

Electoral Law

The Election Law has been repeatedly amended, most recently before the 2010 elections.

• Because of disagreements, the law was not passed until December 6, 2009 (English, Arabic), forcing the postponement of the elections from January to March 2010.


• The most controversial issues were the distribution of parliamentary seats among provinces and the number and distribution of minority and compensatory seats, which are apportioned to parties too small to win election in any single province but win a sufficient share of the national vote to earn a seat in parliament.


• The 325-seat parliament includes 310 seats apportioned among provinces on the basis of population size, eight seats for minority groups, and seven compensatory seats.


• Seats are apportioned among provinces on the basis of the 2005 Ministry of Trade’s population numbers (based on food ration cards), with 2.8 percent population growth added for all provinces. This unusual method of apportioning seats is explained by the fact that the country does not have a voter registration process, nor does it have recent and reliable census figures.


• Iraqis living abroad vote for representatives of their home provinces, not for special representatives.


• Minority seats are distributed as follows: five Christian seats are contested within a single national district reserved for Christians; one seat is reserved for Yazidis in Nineveh; one seat is reserved for Saibis in Baghdad; and one seat is reserved for Shabakis in Nineveh.


• The seven compensatory seats are distributed among parties that received enough votes for one seat at the national level (i.e., the total number of votes they received is greater than the total number of votes divided by the number of seats in parliament) but do not receive enough vote in any one province to win a seat there.

Law on Non-Governmental Organizations

• The Law on Non-Governmental Organizations was approved by the Council of Representatives in January 2010, officially ratified by the Presidency Council on March 2, 2010 and went into force on April 7, 2010. It replaced CPA (Coalition Provisional Authority) Order 45.


• According to the International Center for Not-for-Profit Law, the new law “is a significant improvement upon both CPA Order 45 as well as the draft law first introduced in the Iraqi parliament in March 2009 and should make it easier for civil society organizations to operate.


• According to the new law, as opposed to the previous two laws, registration of NGOs with the government is voluntary. Restrictions on affiliation, funding and the government’s authority to audit or close an NGO have been significantly curbed.

Media Laws

The constitution (Article 36) states that the state guarantees, in a way that does not violate public order and morality: (A) Freedom of expression, through all means. (B) Freedom of press, printing, advertisement, media, and publication. (C) Freedom of assembly and peaceful demonstration. All are subject to regulation by law.

• The Iraqi Council of Representatives has been discussing a draft Iraqi Journalists Protection Law since early 2009.


• The draft is seen by many as being possibly counterproductive. For one, it provides guarantees to journalists who are part of the Iraqi Journalists’ Syndicate, but not others. Some clauses are quite vague and leave room for broad interpretations about their application. Article XIX, an organization that campaigns for freedom of expression around the world, has provided an excellent analysis of the draft law.


• Journalists’ safety in Iraq had greatly improved in 2010 as attacks against them decreased, with only one incident involving a journalist being either killed or imprisoned by August 2010. Since August, attacks on journalists have increased. As of late November, according to Reporters without Borders, four journalists had been killed since August in targeted attacks and several had faced violence perpetrated by Iraqi security forces and police.


• While the threat to the safety of journalists from terrorist attacks has decreased in 2010, the threat to their freedom of expression continues. Government officials have taken to filing slander lawsuits against journalists. In addition, several ministers and government officials provide statements and give access to information only to selected favorite journalists.


• According to the 2010 Worldwide Press Freedom Index by Reporters without Borders, Iraq ranks 130 of 175 countries, with 1 indicating the most press freedom.

Personal Status Law

• The Personal Status Code of 1959 (Law 188), passed before the Baath Party took power, remains Iraq’s chief personal status law to this day.


• The code was amended in 1963, 1978, and 1980 by the Baath regime.


• The 1959 law is based on what is considered by most to be a liberal interpretation of Sharia law. Women’s groups today consider the original 1959 law to be based on an advanced and modern reading of Sharia, and believe that amendments undertaken by the Baath regime have undermined women’s rights.


• Minority religions, mainly Christian and Jewish Iraqis, are covered partially by this law, deriving also from their own personal status legal systems as well as the Civil Law.


• Under the rule of the Iraqi Governing Council, which was set up by the Coalition Provisional Authority in early period of the occupation, attempts were made by some organizations to transfer family law from the government to the clerics of the various sects. These attempts brought an outcry from international and local groups, particularly women’s groups, and failed. While it still holds, the Personal Status Code of 1959 has not been officially affirmed by the Iraqi government.

Ratification of International Conventions

• Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention in 1954.
• Convention against Discrimination in Education in 1960.
• International Convention on the Elimination of All Forms of Racial Discrimination in 1970.
• International Covenant on Civil and Political Rights in 1971.
• International Covenant on Economic, Social, and Cultural Rights in 1971.
• Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in the Arab States in 1978.
• Convention on the Elimination of All Forms of Discrimination against Women in 1986.
• Convention on the Rights of the Child in 1994.
• Convention for the Safeguarding of the Intangible Cultural Heritage in 2003.
• Arab Charter on Human Rights in 2009.