Eleanor Finch
Iraq's constitution-drafting process has been a long and tumultuous journey, with various drafts and proposals considered since the early 2000s. The country's political history and the concerns of its diverse population have greatly influenced the content and ratification process. The final version, approved by referendum on 15 October 2005, was shaped by the desire for a democratic system, the need to address fears of Islamic extremism and separatism, and the protection of individual rights and freedoms. The constitution-drafting process involved negotiations, compromises, and input from various domestic and international entities, with the official translation of the document produced in cooperation with the United Nations' Office for Constitutional Support.
| Characteristics | Values |
|---|---|
| Date of ratification | 15 October 2005 |
| Referendum result | 79% majority approved the constitution |
| Previous constitutions | Late Ottoman basic documents, 2004 interim constitution |
| Official languages | Arabic, English |
| Purpose | To establish justice and equality, respect the rule of law, pay attention to women, children and the elderly, and defuse terrorism |
| Religion | Islam is a fundamental source of legislation |
| Amendments | Can be made after two successive electoral terms with the approval of two-thirds of the Council of Representatives members, the people in a general referendum, and the President within seven days |
| Presidency | The President is the head of state and safeguards the commitment to the Constitution and the preservation of Iraq's sovereignty. The President is elected by the Council of Representatives by a two-thirds majority and is limited to two four-year terms. |
| Council of Ministers | The Prime Minister is the direct executive authority and commander-in-chief of the armed forces. The cabinet is responsible for overseeing ministries, proposing laws, preparing the budget, and negotiating and signing international agreements. |
| Federal Supreme Court | Interprets the constitution, determines the constitutionality of laws and regulations, and settles disputes between the federal government and local administrations |
| Independent commissions | Human rights, elections, and public integrity |
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What You'll Learn
Sunni Muslim Kurds' influence
Sunni Muslim Kurds make up 15 to 20 percent of Iraq's population, with most living in the north of the country. Sunni Muslims as a whole are the minority in Iraq, with Shi'a Muslims making up the majority at 60 to 65 percent of the population.
The 2005 Iraqi Constitution was influenced by Iraq's political history and the fear of Islamic extremism and separatism. The constitution was negotiated by the Shia United Iraqi Alliance and the Kurdish parties, with nominal Sunni representation. Sunni Kurds were promised a constitutional review body that would control the amendment process, which led to the Sunni Iraqi Islamic Party backing a Yes vote in the referendum.
Sunni Kurds have a potential veto power over any new constitution they see as violating their freedom and independence. According to Iraq's provisional constitution, any three provinces in Iraq can, by a two-thirds vote, prevent its ratification. Kurds are the majority in three of Iraq's northern provinces.
Sunni Muslims have historically held the position of speaker of the parliament in Iraq. However, Sunnis have also been underrepresented in the national assembly, with many boycotting the vote due to their objections to elements of the constitution.
The constitution defines Iraq as a federal state, but there is no consensus on the nature and scope of this federalism. Sunni groups have been suspicious of federalism, viewing it as an attempt to divide the country.
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US involvement
The US played a significant role in the ratification process of the Iraqi constitution, which was approved by a national referendum on 15 October 2005. The US had a vested interest in the process, as a "yes" vote would validate their claim that the occupation was facilitating "democratization" in Iraq. This was particularly important as a justification for troop withdrawals following the September 11, 2001 attacks and the ousting of Saddam Hussein in 2003.
The US Ambassador Zalmay Khalilzad was personally involved in the drafting process, and the Bush administration invested significant money and political capital. However, the process was criticized as being more important to the US than to the Iraqi people, who were facing severe deprivation, violence, and a lack of basic necessities. The ratification process was rushed to meet US, not Iraqi, urgency, and most Iraqis had not even seen the draft before the referendum.
The proposed constitution was also seen as consolidating US influence and control in Iraq. It included provisions that would open up Iraq's oil wealth to foreign companies and impose a system of federalism that could lead to divisions along ethnic and religious lines. These factors led to concerns that the constitution was not a legitimate Iraqi product but rather a reflection of US interests.
To address these concerns, compromises were made to gain the support of the Sunni community, who stood to lose the most economically and politically from the proposed constitution. Last-minute changes, such as limits on de-Baathification, were included to pacify Sunni anger and encourage their participation in the referendum.
Overall, while the US played a significant role in the ratification process, the outcome was a product of negotiation and compromise between various Iraqi political groups and the US, with the ultimate goal of establishing a democratic framework for the country.
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Islamic influence
The population of Iraq is predominantly Muslim and Arab, though it is split between the Sunni and Shi'a sects, with the Shi'a dominating. The country has been ruled by various empires and peoples throughout its history, including the Muslims, who began their conquest in the early 7th century.
The first Iraqi constitution came into force in 1925, under British military occupation, and provided for three types of courts: Civil, Religious, and Special. The religious courts were Islamic Sharia, which would be tailored differently for Sunni or Shi'ite Muslims, and confessional courts for non-Muslims. Sharia law is a foundational source of law in Iraq, applying to personal status and family law, and is recognised by the constitution.
The 2005 Constitution was influenced by fears of Islamic extremism and greater federalism leading to separatism. It proclaims religious freedom but guarantees that Iraq is primarily Islamic and Arab. It also establishes the Kurdistan Region as an autonomous federal entity.
The drafting and adoption of the 2005 Constitution were controversial, with sectarian tensions playing a significant role in the process. The Sunni community was split over whether to support the constitution, with only three of the 15 Sunni members of the drafting committee attending the signing ceremony, and none of them signing it. The Sunni-majority Iraqi Islamic Party eventually agreed to back a Yes vote in the referendum after a compromise was reached to include a Constitutional Review Committee to determine whether the constitution should be amended.
The 2005 Constitution establishes a strong parliamentary bias in favour of an elected but mainly symbolic President, who safeguards the commitment to the Constitution and the preservation of Iraq's independence, sovereignty, unity, and territorial security.
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Presidential powers
The 2005 Iraqi Constitution was approved by referendum on 15 October 2005, with 79% of the votes in favour. The constitution was influenced by Iraq's political history and the fear of Islamic extremism and separatism. It was drafted by a constitutional committee, which was later replaced by the Leadership Council, an informal body supported by the US embassy.
The President of the Republic is the head of state and is responsible for safeguarding the constitution and preserving Iraq's independence, sovereignty, unity and territorial security. The President is elected by the Council of Representatives with a two-thirds majority and is limited to two four-year terms.
The President's powers include:
- Ratifying treaties and laws passed by the Council of Representatives
- Issuing pardons on the recommendation of the Prime Minister
- Performing the duty of the High Command of the Armed Forces for ceremonial and honorary purposes
- Ratifying death sentences issued by competent courts
- Any other powers stipulated in the Constitution
The Presidency Council, composed of the President and two deputies, functions as the President until one term after the Constitution is ratified and a government is seated. The Council has the power to send legislation back to the Council of Representatives for revision, which can then be adopted by a three-fifths majority of its members.
The Prime Minister, as the direct executive authority, has the power to dismiss ministers with the consent of the Council of Representatives. They are also the commander-in-chief of the armed forces and are responsible for proposing laws, preparing the budget, and negotiating and signing international agreements and treaties.
The Constitution also provides for the creation of independent commissions, such as those for human rights, elections, and public integrity, which are overseen by the legislature.
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Federal Supreme Court
The Federal Supreme Court is an independent judicial body that interprets the Iraqi constitution and determines the constitutionality of laws and regulations. It settles disputes among or between the federal government, regions, governorates, municipalities, and local administrations. The Federal Supreme Court also settles accusations against the President, Prime Minister, and Ministers. Additionally, it ratifies the final results of the general elections for the Council of Representatives.
The court's jurisdiction includes constitutional review and interpretation, hearing cases involving federal law questions, and settling disputes between different branches of the government and other governments. It also hears cases involving the President, Prime Minister, or other Ministers, and settles disputes between judicial bodies. The Federal Supreme Court plays a crucial role in ensuring the proper interpretation and implementation of the Iraqi constitution.
The 2005 Iraqi constitution was a significant step in the country's political history, influenced by its past and the desire to prevent Islamic extremism and separatism. The constitution created a strong parliamentary bias in favour of an elected but mainly symbolic President. While it proclaimed religious freedom, it also guaranteed that Iraq is primarily Islamic and Arab.
The constitution-drafting process involved various drafts and negotiations in 2005, with the final draft submitted to the Iraqi National Assembly in August 2005. The official translation of the constitution, in English, was produced in cooperation with the United Nations' Office for Constitutional Support. The constitution was then approved by a national referendum on 15 October 2005, with 79% of the votes in favour.
The ratification process included a compromise, agreeing to establish a Constitutional Review Committee to determine if amendments were necessary. Any amendments would need to be ratified by a similar referendum. This agreement led to the Sunni-majority Iraqi Islamic Party supporting the constitution and voting "Yes" in the referendum.
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Frequently asked questions
The Iraqi constitution was approved by referendum on 15 October 2005, with 79% of the votes in favour. It entered into force in 2006 when Nouri al-Maliki's first government was sworn into office.
The 2005 Iraqi constitution was influenced by the country's political history, including the rule of Saddam Hussein, and fears of Islamic extremism and federalism leading to separatism.
The constitution created a strong parliamentary bias in favour of an elected but mainly symbolic president. It proclaimed religious freedom, while guaranteeing that Iraq is primarily Islamic and Arab. It also included explicit guarantees of freedom of thought, conscience, and religion or belief for all Iraqis.
The constitution was negotiated and drafted by a constitutional committee, which was later dissolved and replaced by the Leadership Council, an informal body supported by the US embassy. The final draft was submitted to the Iraqi National Assembly on 28 August 2005.
