The Constitution is the most important document in the lives of peoples. It is the basic law on which the wording and writing of all other laws depends, and it’s a social contract between the people and the ruling command, and the organization of the relationship between the rulers and the people. Writing it successfully requires important factors:
- Political stability, as the constitution cannot be written in the stage of popular boiling and chaos and political and social transformations accelerated as happened in Iraq since the occupation on 9/4/2003.
- The availability of expertise and competence of the authors and writing draft.
- To give writers sufficient time, years rather than months, and without urgency.
The drafting of the Iraqi constitution came under abnormal political and security conditions, which had clear implications for the content of this controversial draft. Which made it a time bomb between the period and another eruption caused a whirlwind of problems between the ruling parties, which negatively affect the life of the simple citizen, and what is surprising is the allegation of the conflicting parties that they are committed to the Constitution. Shiite and Kurdish control of the legislative and executive branches In accordance with the January 2005 elections boycotted by Sunni Arabs, Has strongly influenced the stages and mechanisms of writing the draft constitution, where these elections represented a pivotal point in the Iraqi political scene, which wrote the draft constitution influenced by its components.
These elections, boycotted by the Sunni Arabs for their lack of certainty of integrity, resulted in the formation of the Transitional National Assembly on 16 March and the transitional government on April 28,Which led to the dominance of the Shiite and Kurdish blocs, This means that the executive and legislative branches of the whole of Iraq have become under the almost total domination of the Shiites and Kurds, which created a state of marginalization and exclusion among the Sunni Arabs, which has had a great impact at all stages and mechanisms of writing the draft constitution.
Constitution Drafting Committee
The Constitution Drafting Committee was originally composed of 55 members, they are specifically:
- (28) Members of the list of the United Iraqi Alliance supported by Ayatollah Sistani.
- (15) Members of the Kurdistan Alliance led by Jalal Talabani and Massoud Barzani.
- (8) Members representing the Iraqi List of the unified led by Ayad Allawi.
- (4) Members representing Turkmens, Assyrians, Christians and Yazidis.
The names of the members of the Committee Constitution:
- Ahmed Al – Safi
- AbdulHadi AlHakim
- Ali Al Dabbagh
- Hussein Adhab thaaban
- Jawad al Maliki
- Ali Aladeeb
- Bahaa Al-Araji
- Haneen Al-Qado
- Sami Azara Aal Ma’joun
- Abboud Al-Issawi
- Hamam Hamoudi
- Akram al-Hakim
- Jalal al-Din al-Saghir
- Saad Kandil
- Sami al Askari
- Jawad Samisem
- Nadim Al-Jabri
- Abbas al-Bayati
- Shirwan al-Waili
- Khudair Musa Jafar Al-Khuzaie
- Ali Al-Safi
- Mohsen al-Qazwini
- Aqeela al-Dahan
- Zahraa al-Hashemi
- Eltefat AbdulSadah
- Maryam al-Rayes
- Iman al-Asadi
- Najih Abdul Amir
- Fouad Masoum
- Saadi al-Barzanji
- Faridoun Abdelkader
- Munther al-Fadl
- Hussein Al-Balaisani
- AbdulKhaliq Zankana
- Sami Ahmed Ali Shibak
- Nirkis majid
- Dara Noureddine
- Ahmed Wahab Majid
- Dindar Shafiq
- hameed Majeed Mousa
- Adel Nasser
- Munira Abdoul
- Nuri Boutros
- Kamiran Khairy Sa’id
- Yonadam Yousef Kana
- Qassim Dawood
- Wael Abdul Latif
- Adnan Al Janabi
- Rasem Al – Awadi
- Hussein Al – Shaalan
- Reza al-Khuzai
- Thamer Ghadhban
- Taher al-Bakaa
- Riad Kehia
- Abdul Rahman al-Nuaimi
The names of members who were killed by terrorists in Baghdad:
- Mejbel Sheikh Issa al-Jubouri, was assassinated on 19 July 2005 in Baghdad
- Dhamen Hussein Alioui Obeidi,Dean of the Faculty of Law, Salahuddin University, was killed on 19/7/2005 in Baghdad.
Only two members of the committee were Sunni Arabs within the Iraqi List, The weakness of the representation of Sunni Arabs has raised increasing discontent and bother not only in the Sunni Arab majority provinces, but also in neighboring countries, particularly in Saudi Arabia, Turkey and Egypt, and at the United Nations. This concern spread to echoed within the US administration itself starting with President George W. Bush, who called for an increase in Sunni Arab representation And Minister of Foreign Affairs of US Condoleezza Rice, who visited Iraq specifically for this purpose, Through many US studies centers close to decision-making in the White House, which exceeded the warnings and linked in most of its studies between increasing security chaos and the continued exclusion of Sunni Arabs from the political process. The decision was made to increase the number of Sunni Arabs by 15 members, in addition to 13 new members, where the representation of Sunni Arabs would be equal to the number of Kurds (15 members) or 21%.
For their part, the Sunni Arabs suggested the participation of 25 of their representatives in the drafting of the constitution, considering that this percentage is the minimum that they can agree, which was confirmed by Adnan al-Dulaimi, head of the Sunni Waqf and spokesman of the second founding conference of the Sunnis.
He Told Agency France-Press: “We have submitted a memorandum containing the general principles of the Constitution and we have seen in this matter is that if they did not agree to 25 members we will ask arbitration to form a committee that includes representatives of us and the National Assembly and in the presence of representatives of the United Nations.”
And He confirmed that ”Any decision produced by the committee of arbitration will be approved,” he added, threatening “if not approved by the Assembly We will suspend our participation.”
The head of the committee, Sheikh Hamam Hamoudi, a leader of the Supreme Council for the Islamic Revolution in Iraq, said the committee included 69 members, including the 55 members, 13 representatives of the Sunnis and one of the Sabean Mandaeans. The Presidency of the Constitution Writing Committee was not competent in constitutional law. Which reinforced the deficiencies in the writing of the Constitution that most of the members of the Commission do not have a specialty in constitutional law as well. Therefore, we observe the lack of precision in the language and in the use of constitutional concepts and terminology. These texts were sometimes characterized by emotional terms or political, sectarian or ethnic tendencies.
Referendum on the new Iraqi constitution
Former Iraqi President Jalal Talabani urged citizens to approve the draft constitution on the eve of the referendum. In a speech, he expressed the hope that Iraqis would vote overwhelmingly in favor of accepting the constitution, to express the unity of the national position. He appealed to the Sunnis”The path to achieve your legitimate demands and your rights within Iraq is the path of political and public struggle and participation in parliament, not terrorism, violence or boycott.” For his part, a spokesman for the “White House” that the vote of Iraqis either in favor of or against the new constitution will push democracy forward and challenge the militants. On the other hand, Sunni clerics called for a “no” vote despite the fact that the Islamic party had broken away from the rejectionist camp and supported the constitution. A two-thirds majority vote in three of Iraq’s 18 provinces would mean the fall of the constitution.
On a broad scale, the vote was “yes” with the religious leaders of the Shiite majority and Kurdish parties calling for it to be approved. Speaking preachers at Friday prayers about the constitution urged some worshipers to vote “yes” while others called for the opposite. US forces said they would remain far from polling stations to refute accusations by some that the constitution was under threat of occupation. The constitution is part of Washington’s plan to establish a stable democracy in Iraq. Negotiations have resulted Conducted by the Iraqi Islamic Party with the Shiite and Kurdish blocs to win the support of the Sunnis to the Constitution in exchange for a promise of possible amendments in the future. Shiites and Kurds, who make up about three quarters of the 15.5 million voters, achieve the majority needed to pass the constitution. In Karbala, the representative of the religious authority, Ali al-Sistani, said the vote “yes” is important for the unity of the country in the future. Sheikh Mahdi al-Karbalai told the worshipers that the teachings always confirm the unity of Iraq And to stop the bloodshed that claimed innocent lives. The President of the Kurdistan region Massoud Barzani renewed his call for the Kurds to vote “yes” to the Constitution, which guarantees their demands, especially what is related to the federal system. He explained that”If the constitution does not get the majority, the draft will be rewritten again and that is why we have concerns because it is not sure that we get the current proportion of seats in parliament in the next election.”
Shiite religious references call for a yes vote on the Iraqi constitution
Three of the top religious clerics in Najaf they are Ayatollah Ali al-Sistani, Ayatollah Muhammad Saeed al-Hakim al-Tabtabai and Ayatollah Ishaq al-Fayyad called to vote “yes” on the new Iraqi constitution, And that the Supreme Religious Reference Ali al-Sistani called for a vote yes to the Iraqi constitution in the referendum on 15 October 2005, Mr. Ahmed Safi representative of the Supreme Ayatollah Ali al-Husseini al-Sistani, the following word expressing the opinion of the supreme authority in the Constitution:( In the name the Almighty. The faithful should go to the polls to vote by yes for the constitution. And the picture has become very clear now and the amendments that took place cut the argument to everyone and the supreme reference in Najaf urges believers to vote yes).
And announced Imam of Friday Al-Sistani’s deputy, Sheikh Abdul-Mahdi Al-Karbalai, said: His Eminence, may Allah protect him, urged the Iraqis to participate intensively in the referendum process and to vote yes on the draft constitution of the respondent, and Sistani’s office recommended his deputies to call for a yes vote on the constitution. And the Religious Reference, Grand Ayatollah Mohammad Saeed al-Hakim al-Tabtabai, also called on Iraqis to vote on the new constitution.
And that Ayatollah AlHakim saw the draft constitution is the best that can be reached, he said “The Iraqis have successfully gone a long way in preparing the permanent constitution and the country’s march towards stability and the result of the complicated situation in Iraq, the draft constitution has reached the best possible rights.” He confirmed ”They have to go through the vote and vote on it so that they will block the way to those who are trying to stop the constitution and return it in order to obstruct the progress of Iraq towards stability and return the wheel to the back and waste what the Iraqis have made great efforts and made great sacrifices and remain justification and the appropriate environment for terrorism as it remains Iraq in a whirlpool of turbulence and oscillation for an indefinite period may end in a real tragedy. ” And he said”The Iraqis should benefit from the past experience and the hard labor they have experienced in distinguishing between loyal workers who sacrifice their personal interests for the benefit of the country and its people and opportunists who know only their narrow interests.”
The religious authority, Ayatollah Ishaq al-Fayyad, recommended the vote Yes to the draft of the new Iraqi constitution. He said that the draft permanent constitution of Iraq, although not suited to the status of the Islamic Iraq and its ancient religious civilization throughout history , but it meets the aspirations of the Iraqi people in all of the spectrum and parts and religions, “We therefore call on the Iraqi people with all components and communities participate strongly in the referendum on the Constitution and vote by (Yes) to ensure their rights and freedoms and the future of their generations and unite the word and to defeat terrorism and terrorists. “
The most controversial articles of the Iraqi constitution
There are a number of issues that have not been resolved by the new constitution, and the problems that arise are often surfaced, requiring reconsideration of the new constitution in all its details. Shiites and Kurds still raise the slogan of injustice during the talk about issues of identity and the role of religion and powers granted to the regions and provinces, despite their adherence to the rule of new Iraq after the occupation of Iraq on 9/4/2003 and to this day. There are three laws that often raise problems among all parties that are competing with each other over the rule of Iraq and the interpretation of the constitutional articles as it sees fit for their aspirations and personal interests and is not the public interest of Iraq:
- Article 140 of the Iraqi Constitution
A constitutional provision approved after the US invasion of Iraq in 2003 to resolve the issue of Kirkuk, and the so-called disputed areas, and demands the Kurds to implement, while the Arabs and Turkmen oppose it. The Iraqi State Administration Law, which was written during the era of the Iraqi civil administrator Paul Bremer in 2003, included Article 58 on the normalization of the situation in the province of Kirkuk. Because of the lack of solutions acceptable to all parties to the conflict in Kirkuk (Kurds, Arabs and Turkmen) during 2003, 2004 and 2005, the issue was transferred to the Constitution, which was ratified on 15 October 2005. The Constitution of 2005 defined Article 140 as a solution to the problem of Kirkuk and The disputed areas are called between the Kurdistan region and the neighboring governorates (Nineveh, Diyala and Salah al-Din). The Committee for the Implementation of Article 140 of the Constitution of the Republic of Iraq defines the disputed areas of Iraq as being subjected to demographic change and Arabization policy by the regime of Saddam Hussein during his reign from 1968 until his overthrow during the US invasion in April 2003. The article includes a mechanism consisting of three stages: first, normalization, and the treatment of changes in the population structure in Kirkuk and the disputed areas under the regime of Saddam and after, and the second census in those areas, the latest referendum to determine what the people want, before 31 December 2007. And formed committees for the application of Article 140, under the government of Ibrahim Jaafari, assigned the chairmanship of the Committee to Hamid Majid Musa, and when Nuri al-Maliki came to the government formed another committee headed by former Minister of Justice Hashim Shibli, but resigned, and then replaced by Raed Fahmi (August 2007 – June 2011).
The reconstituted committee was appointed in August 2011 to Hadi al-Ameri, the minister of transport in Maliki’s government, but the Arab parties in Kirkuk objected to the appointment of the man. Due to the numerous technical and political complexities, especially regarding the province of Kirkuk, Article 140 has not found its way to implementation by successive Iraqi governments. This constitutional article has been the subject of constant debate among the various parties, both on its legality and on other grounds. The Kurds consider that Article 140 is the only road map to solve the problem of Kirkuk and the disputed areas, and the leaders of the Kurdistan region are demanding their application at various times, But at the same time worked to impose the status of the Reality in those areas, Taking advantage of the difficult circumstances in Iraq. The President of the Kurdistan region of Iraq Massoud Barzani at a press conference in Erbil on 27 June 2014 Considered that Article 140 of the Iraqi Constitution has been “completed and will not talk about anymore”, after the entry of the Peshmerga forces disputed areas, and said, “We have ten years patience With the federal government to resolve the issue of disputed areas in accordance with Article 140, but it was in vain.” For his part, Iraqi President Fuad Masum in March 2017 demanded the federal government to start the application of Article 140 and carry out its full duties in this regard. Kirkuk is one of the disputed areas under Article 140, a major dispute in Iraq because of its complex population structure. It was controlled by the Kurds in June 2014 after ISIS a terrorist organization invaded much of the north and west of the country. Despite the objections of Arabs and Turkmens living in Kirkuk, the authorities of the Kurdistan region included the province in the referendum on the separation from Baghdad, which took place on 25 September 2017, a referendum rejected by the Iraqi government for “non-compliance with the Constitution of 2005,” as rejected by Turkey and Iran. The Arabs and Turkmens, for their part, object to Article 140 of the Iraqi constitution and their argument that the ceiling expired in December 2007, and therefore they see a need for constitutional amendment. In turn, they accuse the Kurdish parties of bringing hundreds of thousands of Kurds to live in these areas to change their demographic identity, and fear the possibility of annexing the province of Kirkuk, rich in oil to the Kurdistan region.
- De-Baathification law and the law of accountability and justice
Which targeted the Sunni component in particular. The Supreme National De-Baathification committee was established by a US occupation authority led by US Governor Paul Bremer on 16 April 2003 with the aim of ending the influence of the Ba’ath party in Iraq and removing its leaders and members from positions of authority and any sites Functional and social and impose various sanctions on its members. The De-Baathification committee is run by parties that were opposed to the former regime to implement the law, which led to the exclusion of thousands of scientific and technical capabilities and the military in the state simply to belong to the Baath Party, although not committed any criminal offense. The De-Baathification committee is run by parties that were opposed to the former regime to implement the law, which led to the exclusion of thousands of scientific, technical and military figures in the state simply to belong to the Baath Party, although not committing any criminal offense. Bremer estimated the number of members of the Baath covered by the procedures about twenty thousand (the rank of a member of a squad and above), But informed sources confirm that the covered up to about 700 thousand members, Where the working members were subsequently covered as well. It is estimated that the number of members of the Baath party in Iraq before 2003 reached several million.
And later The parliament, which is dominated by the Shiite majority, passed the law of the “Accountability and Justice” No. 10 of 2008, which expanded the ablation, and imposed new sanctions, including seizure of property, which was considered by the Sunni and national forces as a means of revenge and the liquidation of the opponents and blackmail covered by the law, Contrary to the calls «national reconciliation”. In addition to including the Iraqi constitution Issued in 2005 items banned any activity of the Arab Baath Socialist Party and its members, the parliament passed the law banning the Baath Party No. 32 of 2016 to prevent him, now and in the future, from participating in any political activity and social in Iraq. The committee of “accountability and justice” used to issue lists of dismissal from the job to people on the pretext of including the procedures from time to time, And from that list Which included 376 officers in the police and army on the pretext of involvement in violence or contact with the Baathists, including senior commanders of the General Staff and brigades who had been carrying out key missions in Baghdad and the provinces over the past years. Some had a role in fighting al-Qaeda and ISIS ” Including the commander of the ground forces, Major General Riad Jalal Tawfiq, the commander of operations of Tigris Major General Abdul Amir Zaidi and former Anbar police chief Major General Ahmed AlDulaimi and his successor, Major General Kazem AlFahdawi, and many more. Political forces have also accused The committee of “accountability and justice” of sending Baathists’ names and addresses to Iran to be filtrated by some Shiite militias. Observers confirm that the political forces controlling power in Iraq after 2003 made the de-Baathification process a sword to retaliate against members of the Baath Party or those who pose a threat to Authority or to bargain some of them on Attitudes At a time when many Iraqis believe that removing the influence of the Baath Party from Iraqi society is not so easy and through sanctions and exclusion, and therefore requires a national reconciliation that excludes the perpetrators of crimes, The rights of others are reserved, instead of the policy of exclusion, marginalization and retaliation. As for the leadership of the American occupation and despite the fact that after the occupation of Iraq in 2003, the de-Baathification law was issued with the aim of excluding the former regime leaders and members of the Baath party from positions of authority, But the application of the law provoked her later.
The former commander of the US forces in Iraq `Petraeus´ criticized the work of the committee, which expanded the inclusion of large numbers of Baathists in the lists of ablation is not equivalent, while Gen. Ray Adorno, the former military commander of the US military has confirmed honestly that « Former head of the de-Baathification committee Ahmed Chalabi, and its successor, Ali al-Lami, linked to the Corps of Jerusalem of the Iranian Revolutionary Guard »As the US ambassador to Iraq, Christopher Hill, said that« Iran directly intervene to exclude Iraqi candidates hostile to it through the committee, And that the results of the elections will determine whether Iraq will remain a friend of the United States, or become an ally of Iran »Former British Foreign Minister Philip Hammond, in an interview published in the Guardian on 7/7/2016« that many of the issues we see today because of The tragic decision to dismantle the Iraqi army and launch the de-Baathification program, and considered it a mistake in planning after the armed conflict ».
- Article( 4 )Terrorism
Which is also called in the popular media (Article 4 Sunni) because it targets the Sunni component in particular. Article 4 is terrorism within six articles of the anti-terrorism law adopted by the Iraqi National Assembly No. (13) for the year 2005 in Iraq and signed by Jalal Talabani, Ghazi Ajil Al-Yawar and Adel Abdul-Mahdi, and this article is the page revolving around the political crisis in Iraq from time to time. The fourth article of the law is the most popular and used in the Iraqi judiciary. It contains two items called “sanctions.”
The first article is Punishable by death anyone who has committed an act of origin or accomplices in terrorist acts, and punishes the instigator, the schemer, the financier and all those who have enabled the terrorists to commit the crime as an original actor.
The second article provides for the punishment of life imprisonment for anyone who intentionally concealed any criminal act or cover up a terrorist.
This law was drafted in a manner that allows anyone to be tried to run counter to the existing political system. The ICRC has repeatedly called on the government in Iraq to review the law and remove it from obscurity, And the formulation of a mechanism to combat terrorism in Iraqi law and the proposed precise provisions and definitions of terrorist acts so as not to slip in the future political judgement of oppositionist, which is happening now, The Committee said that “there are judicial provisions, especially in Article 4, which allow for broad interpretations that threaten public freedoms.” It is worth mentioning that the departure of this law from the principles of international law and the acceptance of international organizations in it means that there is a serious reason to reconsider or cancel it. The Iraqi government has stopped reporting to the committee for long periods and has not regulated many of the international conventions that have been implemented to combat terrorism despite the fact that the issue concerns the people and the achievement of their security, and guarantee their freedom and exercise their right to life and freedom.
The strange thing, the law defined the crimes of terrorism in article II and defined the crimes of state security in Article III. Article IV to put the death penalty for both crimes, knowing that the crimes of state security have their own status and are not terrorism. (I.e. any act involving the initiation of force or violence at the heart of the State system) or (a) the movement of a military section without an order, which is not a terrorist act but a criminal offense relating to the security of the Government And the Law of Penalties Al-Baghdadi and its amendments put strict penalties for them.
The shortcomings of the constitution
- One of the shortcomings of the constitution is that the presidency of the constitution writing committee has not been competent in constitutional law. This has been reinforced by the fact that most members of the Commission do not have a specialization in constitutional law either. Therefore, we observe the lack of precision in the language and in the use of constitutional concepts and terminology. These texts were sometimes characterized by emotional terms or political, sectarian or ethnic tendencies.
- The constitution writing committee is also free of official representation for the Arab Sunnis, even though they represent an active component of the Iraqi state’s heritage. The addition of 15 members of the Arab Sunnis to the Committee was not sufficient in terms of numbers and in terms of the lack of mandatory status of their vote to be counted outside the parliament.
- The low level of democratic culture, and the culture of establishment of most political elites, left a clear impact on the shortcomings of the constitution and the introduction of emotional terms on its features.
- The weakness of the popular constitutional culture sometimes, And the indifference to the Constitution sometimes other, Led to a clear failure in the constitution. Where the people did not object to any substance, and did not impose any basic material, but passed a number of constitutional texts that have harmed him.
- The performance of the Kurdish forces was one of the shortcomings of the constitution because, at the time they were writing the constitution, their eyes were fixed on the project of the independent Kurdish state and the provision of the required premises for the Kurdish state through the constitution itself. Hence, they succeeded in establishing the principle of double language in official correspondence according to Article 4 of the Constitution. And succeeded in establishing a fragile federation close to the confederation (Chapter V – Chapter I). They established a fragile national unity based only on the Constitution, as stipulated in article 1, which stipulated that the Constitution would be considered the only guarantor of the unity of Iraq, even though Iraq’s unity is much deeper.
- Shiite forces have also contributed to the development of texts that led to a clear failure in the Constitution, including:
- Contributed to the repeal of the frequent texts in all Iraqi constitutions, which account for Iraq as part of the Arab nation, although the proportion of the Arab population in Iraq reaches about 80%. And this deletion the latest disadvantages of several of them:
A – Led to the isolation of Iraq from its Arab incubator.
B – Led to crack in Iraq’s natural identity.
- The support of the state of the components rather than the state of citizenship (Article 3 of the Constitution) led to multiple social conflicts that caused great damage to social peace and political stability.
- The adoption of sectarian criteria in personal status cases (Article 41 and 43 of the Constitution) instead of the universal Islamic standards led to the establishment of multiple religious endowments, which led to disputes over many Islamic endowments.
- Support for the Kurdish trend aimed at weakening the federal authority and strengthening the authorities of the regions led to weak authorities vested in the federal authority. Although Iraq desperately needs a strong federal government to be able to maintain its national unity. This trend led to a clear failure in the constitution.
- The superiority of religious orientation on a number of articles of the Constitution, making it paralyzed and contrary to democracy, especially in the second article, which states:
- A) It is not permissible to enact a law that contradicts the principles of Islam.
- B) It is not permissible enacted a law that contradicts the principles of democracy.