Malcolm Rivera
The Constitution of the Republic of Iraq was approved by a referendum on 15 October 2005, with 78% voter approval. The 2005 Iraqi Constitution was influenced by the country's political history and the desire to prevent Islamic extremism and separatism. It outlines the federal powers, which include legislative, executive, and judicial powers, and establishes checks and balances through independent commissions and the separation of powers between civilian authorities and the military. The Constitution also guarantees religious freedom and human rights while upholding Islamic identity and values. It provides for the creation of independent commissions, including those for human rights, elections, and public integrity, overseen by the legislature. The Constitution outlines the management and distribution of oil and gas revenues, ensuring fairness and balanced development across the country. The document's impact on Iraq's democracy and the challenges it faces in a multiethnic society are significant, with ongoing efforts to amend and improve it.
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What You'll Learn
The role of civil society institutions
The 2005 Iraqi Constitution was drafted by members of the Iraqi Constitution Drafting Committee to replace the Law of Administration for the State of Iraq for the Transitional Period. It was approved by a referendum on 15 October 2005, with 78% of voters in favour.
The constitution outlines the role of civil society institutions, which the state is required to strengthen, support, develop, and preserve their independence. This is to be achieved through peaceful means, regulated by law, and in a manner that is consistent with the advancement of Iraqi clans and tribes. The state must uphold noble human values and prohibit tribal traditions that contradict human rights.
The constitution also guarantees social and health security to Iraqis, providing for their care and rehabilitation in cases of old age, sickness, employment disability, homelessness, orphanhood, or unemployment. It guarantees free and mandatory primary education, as well as the right to practice sports and cultural activities.
The constitution seeks to protect religious freedom and the Islamic identity of the majority of Iraqis while also guaranteeing the religious rights of minorities. It establishes Arabic and Kurdish as the official languages of Iraq and recognises the country's diverse nationalities, religions, and sects.
In terms of governance, the constitution outlines the federal powers of the legislative, executive, and judicial branches. It also addresses the composition and role of the Iraqi armed forces, prohibiting their involvement in political affairs or the oppression of the Iraqi people.
The 2005 Iraqi Constitution combines temporary and liberal consociationalism, which has been described as "consociationalism 'light'". This form of power-sharing is intended to be transitional rather than permanent, allowing for change and evolution within the constitutional framework.
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Oil and gas management
The Iraqi Constitution of 2005 establishes that oil and gas are owned by all the people of Iraq across all regions and governorates. This is specified in Article 111 of the Constitution. Article 112 grants the federal government the authority to manage oil and gas extracted from existing fields, in collaboration with producing governorates and regional governments. This includes the Kurdistan Regional Government (KRG), which has special recognition within the Northern Kurdistan Region.
The federal government is responsible for distributing revenues from these existing fields in a fair and proportionate manner. This includes providing specific allotments for a designated period to regions that suffered under the previous regime and those damaged subsequently, thereby ensuring balanced development across the country. However, Article 112 does not empower the central government to manage non-producing, under-producing, or future fields. These fields fall under the control of regional governments, which must still adhere to federal oil development policies.
The Iraqi Constitution also mandates the formulation of strategic policies to develop oil and gas resources for the maximum benefit of the Iraqi people. This involves employing advanced market principles, encouraging investment, and protecting the environment. To achieve these goals, a draft oil and gas law was approved by the Council of Ministers in 2007 but was never enacted due to disagreements over its terms. A revised draft presented in 2011 proposed the establishment of a Federal Oil and Gas Council to oversee the sector.
The Refining Law, which encourages private sector investment in Iraq's refining sector, allows private entities to establish and manage crude oil refineries and market their products. The Ministry of Oil reviews applications and can enter into international contracts, with the obligation to supply private investors with crude oil and refined products.
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Human rights
The 2005 Iraqi Constitution was drafted by members of the Iraqi Constitution Drafting Committee and approved by referendum on 15 October 2005. It outlines several provisions to protect and uphold human rights, achieving checks and balances through various measures.
Firstly, the Constitution guarantees equal opportunities for all Iraqi citizens, with the state committed to taking the necessary measures to ensure this. It also establishes a right to privacy, protecting the sanctity of homes from unlawful entry, search, or violation, except by a judicial decision in accordance with the law.
The document prohibits the deprivation or restriction of rights outlined in the Constitution, except as provided by law and based on a decision from a competent judicial authority. This includes the right to Iraqi citizenship, which cannot be withdrawn from those who are Iraqi by birth.
Additionally, the Constitution prohibits tribal traditions that contradict human rights. It also establishes Islam as the state religion and a foundation for the country's laws, but stipulates that no law may contradict the established provisions of Islam, the principles of democracy, or the rights and basic freedoms guaranteed in the Constitution.
To further strengthen human rights protections, Iraq's 2005 Constitution establishes several independent commissions, including the Independent High Commission for Human Rights, the Independent High Electoral Commission, and the Commission on Public Integrity, which are monitored by the Council of Representatives. These institutions provide additional checks and balances to safeguard the human rights of Iraqi citizens.
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Elections
The 2005 Iraqi Constitution was drafted by members of the Iraqi Constitution Drafting Committee to replace the Law of Administration for the State of Iraq for the Transitional Period. It was approved by a referendum on 15 October 2005, with 78% of voters backing the charter.
The Constitution provides for the creation of independent commissions, including those for human rights, elections, and public integrity. Each of these commissions is overseen and monitored by the legislature, and there is a public service council with the ability to create more commissions as needed.
The Constitution also outlines specific requirements for elections. For example, it states that a candidate for the Council of Representatives must be a fully qualified Iraqi, and that the elections law shall aim to achieve a percentage of representation for women of not less than one-quarter of the members of the Council of Representatives. The Council of Representatives shall also promulgate a law dealing with the replacement of its members on resignation, dismissal, or death.
The Constitution also addresses the role of the Iraqi armed forces and security services in elections. It states that these groups shall be subject to the control of civilian authority and shall not be used as an instrument to oppress the Iraqi people or interfere in political affairs. The formation of military militias outside the framework of the armed forces is prohibited, and military personnel are prohibited from standing for election to political office, campaigning for candidates, or participating in other prohibited activities.
Overall, the 2005 Iraqi Constitution provides a framework for fair and inclusive elections, with specific provisions to ensure the representation of women and the integrity of the electoral process.
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Religious freedom
The 2005 Iraqi Constitution guarantees the Islamic identity of the majority of the Iraqi people and ensures full religious rights and freedom of religious belief and practice for all individuals, including Christians, Yazidis, and Mandean Sabeans. It recognises Muslims, Chaldeans, Assyrians, Assyrian Catholics, Syriac Orthodox, Syriac Catholics, Armenian Apostolics, Armenian Catholics, Roman Catholics, National Protestants, Anglicans, Evangelical Protestant Assyrians, Seventh-day Adventists, Coptic Orthodox, Yezidis, Sabean-Mandeans, and Jews as religious groups.
The Constitution prohibits any law that contradicts the rights and basic freedoms it stipulates. It ensures that all Iraqis have freedom of movement, travel, and residence inside and outside the country, and they cannot be exiled, displaced, or deprived of returning to their homeland. The Constitution also emphasises the importance of strengthening the role of civil society institutions and supporting their independence while achieving their legitimate goals through peaceful means.
While Islam is recognised as the official religion of Iraq, the government acknowledges the existence of various religious groups within the country. All recognised religious groups, except for Yezidis, have their own personal-status courts that handle marriage, divorce, and inheritance matters. However, it is important to note that groups like Baha'i, Zoroastrian, and Kaka'i are not permitted to register with the government, although they hold recognition in Kurdish areas.
The Constitution also addresses education and language rights. It guarantees the right of Iraqis to educate their children in their mother tongue, such as Turkmen, Assyrian, or Armenian, in government educational institutions or any other language in private educational institutions. Additionally, the Constitution recognises Arabic and Kurdish as the two official languages of Iraq.
In terms of checks and balances regarding religious freedom, the 2005 Iraqi Constitution establishes a framework that guarantees religious rights and freedoms while prohibiting laws that might infringe upon them. It ensures representation and participation in institutions like the Iraqi armed forces and security services without discrimination or exclusion. The Constitution also outlines the role of the federal government and its responsibilities in managing shared resources like oil and gas, benefiting all regions and governorates.
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Frequently asked questions
The Constitution of the Republic of Iraq is the fundamental law of Iraq. The current constitution was approved by a referendum on 15 October 2005.
The 2005 Iraqi Constitution was influenced by the country's political history and the context of the time, including fears of Islamic extremism and greater federalism leading to separatism. It proclaimed religious freedom and guaranteed Iraq's Islamic identity and Arab majority. It also provided for the creation of independent commissions, including those for human rights, elections, and public integrity. The Constitution included specific powers for the national government, such as exclusive authority over foreign policy and national security. It also outlined the structure of the Iraqi armed forces and their role in defending the country without interfering in political affairs.
The Transitional National Assembly of Iraq, elected in January 2005, appointed a Constitutional Committee to draft the constitution by 15 August 2005. The Committee initially had 55 members from the Assembly, but it was later expanded to include representatives from the Sunni Arab community. The final draft was approved and adopted by the Assembly on 18 September 2005 and then put to a public referendum on 15 October 2005, where it received majority support.
The 2005 Iraqi Constitution included several checks and balances. It provided for a strong parliamentary system with an elected but symbolic President. It also established independent commissions overseen by the legislature and guaranteed certain human rights, such as freedom of thought, conscience, and religion. The Constitution outlined the role of the civilian authority over the armed forces and prohibited their involvement in political affairs or the transfer of power. Additionally, it sought to strengthen the role of civil society institutions and protect their independence.
