11 March 2004

Florida on the Tigris

From Transitional Administrative Law

Article 13

Much press comment has parroted the claim that the Law provides for a bill of rights unprecedented in the region.� This is an exaggeration: by the standards of the Arab world, the rights provisions are not particularly extensive.� What is innovative is the number of rights that are absolute, not depending on implementing legislation.� The language here is often quite carefully drafted to close loopholes.

However, some of the rights do operate in accordance with law.� While such language is common in Arab constitutional texts, it is not necessarily problematic if the implementing legislation is itself liberal (indeed, the formula of defining rights in legislation is often followed in Europe).� However, the reliance on implementing legislation in the Iraqi case may raise significant problems.� First, no formula is included insisting that a right cannot be limited in the guise of defining it.� Second, the necessary legislation has not yet been written in most areas (though the CPA has issued a law governing NGOs), meaning that the operative law will date to the Ba'thist era and all that implies.


Article 53

The various provisions on federalism are quite complex and it is difficult to predict precisely how they would work.� This is partly the case because the provisions are mutually dependent (and sometimes in tension with each other).� For a trenchant critique of the approach adopted, consult the March 8 entry in Spencer Ackerman�s Iraq�d blog.

and cited by Juan Cole:

"Article 55 . . .may be a key to the evolution of power in Iraq. This article specifies that any group that has taken control of a Governate Council before 1 July 2004 under the CPA can retain control "until free, direct, and full elections, conducted pursuant to the law, are held." There is no indication of when such Governate elections may occur. In particular, these Governate elections are not linked to the National Assembly elections, nor is it clear whether the National Assembly has the power to call Governate elections (since "no member of any region government, governor, member of any governate... may be dismissed by the federal government"). As I read it, the suggestion is that local elections may not be generally required until a final constitution is approved. Article 56 also promises that these Governate councils will get a significant role in administering the country.

So if an aspiring national leader can develop a factional network that has widespread control of Governate councils (established without elections under the CPA), then that leader may be able to control local elections to the National Assembly in these Governates and may dominate the national political process thereafter.

I have doubts about use of supermajorities, the special commissions and about the method of election for the Presidency Council, the National Assembly presidents, and the Prime Minister and I'll address those shortly. The peculiar roles of the Iraqi Property Claims Commission, the Deba'athification Commission and the Commission on Public integrity will be central in the transition phase. More later.


Contrary to the comment on Article 53 above, Article 57(B) mandates governorate elections 'at the same time as the National Assembly elections'. That does not vitiate the point about governorate authorities until the National Assembly elections can be held.

Link via Juan Cole

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