On March 8, the Iraqi Governing Council signed Iraq's new interim constitution, known as the Transitional Administrative Law (TAL). The TAL is expected to go into effect on July 1, 2004 and may foreshadow elements of a permanent constitution. It will remain in force until a new government, scheduled to be elected by January 31, 2005, enacts a permanent constitution.
When reflecting on the significance of the TAL, it is useful to recall the basic functions of any constitution:
· A constitution identifies the original source of authority and legitimacy (that is, the people, the king, the Bible, or the Quran);
· It establishes the scope of national sovereignty;
· It allocates power among the branches of government;
· It provides a diagram of how authority flows (for example, who can appoint a judge, who can command the army, who can enact a law or a decree, or who can veto a law or decree)
· It frames the overall legal principles of the state and defines the role of law; and,
· It enumerates the rights and duties of individuals vis-a-vis the state and the responsibilities of the state vis-a-vis individuals.
In the first four areas—sources of authority, scope of sovereignty, allocation of power and flow of authority—most Arab constitutions are quite similar. They draw their basic structural features from the French Third Republic. The underlying architecture of Arab civil law and Arab criminal law is similarly a reflection of Third Republic law, ultimately derived from Napoleonic code and from Lex Romanus. Some Arab constitutions are written for monarchies, some for republics. Some define unitary states, while others define federal states.
Most Arab constitutions, however, exhibit certain common features. They do not seek explicitly to balance power among the branches of government; rather, they provide for the direct dominance of the executive branch over the legislative branch and for indirect dominance over the judiciary. All Arab constitutions posit some relationship between Islam and the sources of original legal authority, although the specificity and closeness of that relationship varies widely among nations in the region. Iraq's interim constitution falls comfortably within the range of modern constitutional traditions in the Arab world. It does not break significant new ground in terms of structure or broad constitutional principles.
The TAL was crafted as an aspirational document, setting out general principles that the authors hope will guide the drafting of the permanent constitution. In notable contrast to most Arab constitutions, the TAL provides for a federal structure in which there is some effort to create a balance among the three branches of government. The TAL defines Iraq as a federal state with considerable authority handed to individual regions. The TAL at least makes a nod in the direction of judicial independence. Other principles and provisions expressed in the TAL include the following:
· Iraq will be governed by a directly elected national assembly whose members will choose a president, a prime minister and a pair of vice presidents.
· The president will make decisions on the advice of the two vice presidents, and will share power with a prime minister and cabinet.
· The prime minister will be vested with executive power.
· The president will have veto power over the laws and resolutions passed by the national assembly.
· The official languages of Iraq are Kurdish and Arabic.
· Islam is the official religion; Islam is a source for legislation but not the primary source. The TAL's language on Islam and the state effectively says that the role of Islam as a source for legislation will not compromise individual rights or democratic principles. (The ambiguity of this provision could, in the view of many experts, prove problematic. A failure to specify precisely where Sharia law applies and what specific Islamic legal traditions will govern its application may invite haphazard efforts to discard civil laws as un-Islamic.)
· Kurds are allowed to maintain their "peshmerga" militia groups for the moment. (The status of other militias, such as those affiliated with Shiite political forces, is not specifically addressed.)
· The TAL has a 13-article bill of rights, including protections for free speech, religious expression, assembly and due process. The TAL includes an explicit provision that Iraqis are equal in their rights regardless of gender. Special language makes clear that when the Arabic text uses masculine pronouns they should be read as "he or she." The "target" (not quota) for representation of women in the transitional assembly is 25 percent.
By itself, the TAL does not signal a new direction in Arab governance. In the crucible of real-life Iraqi politics, the interim constitution could simply provide the foundation for another constitutional autocracy. Alternatively, and with luck, it might set the stage for a brave new democratic political experiment in the region.
John Stuart Blackton served as director of the United States Agency for International Development missions in Pakistan and Afghanistan. After leaving government service, he directed a multi-year USAID program in Cairo to modernize court administration. He consults on governance and security issues in Iraq, Afghanistan, and the Muslim region of the Philippines.
