Key Democratic Principles of Iraq’s Transitional Administrative Law
Remarks in Salah ad Din Governorate, March 21-22, 2004
Salaam Alaikum. Good morning. I want to share with you today some reflections on the new Transitional Administrative Law that was adopted by the Governing Council earlier this month.
I speak not as a representative of the CPA but as a political scientist who studies democracy and believes that Iraq now has the opportunity to do what no other Arab country in our time has yet done: establish a genuine democracy.
First, let me say a word about what democracy is. Democracy is a system of government in which the people are able to choose their leaders, and to replace their leaders, in regular, free and fair elections.
But democracy is about more than just elections. It also protects the human rights of citizens to think for themselves, to practice their religion, to express themselves, organize, and demonstrate.
Democracy provides a rule of law that protects the rights of citizens, maintains order, and limits the power of government. In a democracy, no one is above the law, not even a king or an elected president. The law is fairly, impartially, and consistently enforced, by courts that are independent of the other branches of government.
Democracy gives power to the majority, but not absolute power. The rights of minorities are preserved and meaningful participation is guaranteed for all. Increasingly, democracies are choosing to decentralize power in order to give all important groups a share of power.
Let me now briefly address five key themes of the Transitional Law that will help Iraq to establish a true democracy. These are:
1. Citizens’ Rights
2. The rule of law
3. The executive structure
4. Check and balances
5. Decentralization of power, as a means of managing conflict.
The new Transitional Law is one of the most progressive basic laws in the world in guaranteeing the fundamental rights of citizens. Under this law, Iraqis are free to express themselves, to form and join organizations, to assemble and demonstrate peacefully, and to move about the country.
All Iraqis are equal in their rights without regard to gender, religion, or nationality. No one may be deprived of his liberty except in accordance with legal procedures.
No one may be unlawfully arrested or detained. And no one may be detained for their political or religious beliefs.
Everyone has the right to a fair, speedy, and public hearing by an independent court. Torture is forbidden under any circumstance. And Iraqis are guaranteed all other rights provided for in international treaties and agreements.
If these rights are respected, Iraq will be a truly free country. And under this law there will be an independent Human Rights Commission to hear any complaints citizens have about the violation of their rights.
Rule of Law
Another crucial instrument to protect the rights of citizens and uphold the rule of law will be an independent judiciary. If the law is to be applied fairly to all citizens, so that no official is above the law, the courts must be truly independent. Judges must be free from control or pressure by the Executive when they decide a case.
A true rule of law in a democracy requires a court system that is neutral and independent of officeholders and political parties. The transitional law provides for this. The executive may not interfere with or seize the power of the judiciary in any way.
Judges will be independent, and there will be a new Supreme Court, of nine members. If someone believes that a law passed by the parliament and or an action taken by the executive violates the provisions of the Transitional Administrative Law, the Court will decide if this action is permissible. The Supreme Court may overrule a law or executive action if it violates the principles of the Transitional Administrative Law.
To ensure judicial independence, nominees to the Supreme Court will be proposed by the Higher Juridical Council, not party politicians. The Presidency Council then chooses from among the Council’s nominees. All of the other judges of the federal courts are appointed by the Higher Juridical Council, on the basis of ability and honesty.
The transitional law will also promote peace. Private militias and armed forces are prohibited, unless provided for by law. And the military and intelligence service must be under civilian, democratic control.
Much discussion about the Transitional Law has concerned the three-person presidency council. However, this body will have limited power. It can veto a law passed by the National Assembly, but only if all three members of the presidency council agree to the veto. And the Assembly can override a presidential veto by a two-thirds vote. The Presidency Council must also unanimously approve any amendment to the Transitional Law.
Most of the power and decisions will be in the hands of the Prime Minister and his Council of Ministers, or cabinet. The Prime Minister is to be nominated by the Presidency Council but must obtain the support of a majority of the National Assembly. He then nominates the Council of Ministers, but must do so by consulting with and getting approval from the National Assembly.
So there will probably be a coalition government led by a relatively strong prime minister, but checked by a presidency council and by a legislature with the power to question and investigate executive actions.
Checks and Balances
This indicates the fourth feature of the transitional law: that the powers of government are spread among different institutions, with each institution exercising certain powers and watching and limiting the power of other branches of the government.
The Presidency can veto legislation. The legislature can override the veto. The Prime Minister and his cabinet make policy and can propose legislation. But the legislature can propose its own legislation, and can question any cabinet member or department. The legislature can also withdraw its confidence in—and thus vote out of office—any minister, or the Prime Minister and his entire cabinet.
The judiciary decides whether all of these actions are constitutional—consistent with the Transitional Law.
In addition, there are other ways that power is separated and limited under the Transitional Law. I have already spoken of the Human Rights Commission, which can investigate any alleged violation of rights. Elections will be administered by an independent electoral commission. There will also be a National Public Integrity Commission to watch the conduct of public officials and guard against corruption. All public officials have to declare their sources of income according to the law.
All of these mechanisms are meant to ensure that no individual or agency can gain a monopoly of power. Each government institution must respect the power of other institutions, and can be held accountable by it.
Sharing and Devolving Power
Iraq is only one of many countries that are trying to build democracy in the wake of violent conflict and a long history of tyranny. Such countries face enormous challenges of social and political division and bitterness.
Dictatorships are narrow forms of government that leave most individuals and groups excluded from access to power.
The challenge of democracy in these circumstances is to ensure that all groups, large and small, are included in the political system. All groups must feel that they have some share of power and some stake in the future.
There has been a lot of controversy in Iraq about the provisions of the Transitional Law concerning federalism. Federalism is not a formula for breaking up Iraq. That is not what the drafters wanted. It is not what the CPA or the US government wants.
Rather, federalism is a formula for holding together a divided society. By decentralizing power, and giving each group some control over its own affairs, federalism prevents any one party or group from monopolizing power. It ensures that power will be closer to the people, and thus more accountable and responsive to each community.
Decentralization of power is a worldwide trend, because it is seen as more democratic, and more likely to give power to the people.
When people of every different region feel their voice can be heard, and that they can have some influence over their own provincial or local government, government will be more stable, and democracy will be stronger.
Ethnic minorities and women must be included in the sharing of power, if democracy is to be strong and just. The Transitional Law provides for this. The electoral law must aim to ensure that women will constitute at least one-quarter of the member of the National Assembly, while fairly representing all communities, including Turkomans, ChaldoAssyrians, and others.
The Kurdish Regional Government is allowed to continue as a unit within its existing boundaries for the time being. It can have its own laws and practices on a wide range of matters related to development, education, and culture, for example.
But it must live under all the laws and decisions of the national government in matters that fall under the exclusive jurisdiction of the national government, in Article 25 of the Transitional Law.
These national policy areas include foreign policy, national security, fiscal and monetary policy, customs, the national budget, citizenship, and managing the natural resources of Iraq. No government below the center will have a veto over what the national government does on these maters.
The Transitional Process
Finally, I would like to say a word about the transitional process. The transition to democracy in Iraq must navigate between two competing imperatives. On the one hand, democracy takes time to build and craft. On the other hand, Iraqis want, and deserve to have, their sovereignty back, and a new government popularly elected, as soon as possible.
Because of the pressure of time to meet the June 30 deadline for the transfer of sovereignty, it was not possible to have extensive public debate over all of the final provisions of the Transitional Law.
However, the basic principles of the Law were addressed at town hall meetings in Baghdad, Basra, Mosul, Baquba, and Tikrit, and at hundreds of local meetings around the country.
It was drafted and adopted by a body of 25 leaders from across Iraq who reflect much of the diversity of the country. This body, the Governing Council, is recognized by many international organizations, including the UN, the World Trade Organization, and the Arab League.
No one is happy with all of the provisions of the Transitional Law. Like all basic governance documents, this Law was the product of negotiation and compromise, in which all major groups gained something and gave up something, in order to achieve something larger and more important for the country.
This spirit of compromise bodes well for the future of democracy in Iraq. But the provisions and compromises of the Transitional Law are not permanent. They will last only for the transitional period, from July 1 of this year to the end of next year, when a new government is to assume office under a permanent constitution.
The National Assembly will write the new constitution. It is obligated under the Law to encourage debate on the constitution, in public meetings, through the media, and by receiving proposals from Iraqi citizens.
In this process, Iraqis can raise any and all objections that they may have to provisions of the Transitional Law. They can propose very different provisions. All voices will be heard. There will be an extensive public and democratic debate.
The new permanent constitution will certainly differ in some ways from the transitional one. But I will close with a prediction.
I do not think Iraqis will choose to alter significantly the provisions of this Law that protect citizens’ rights and the rule of law.
Iraqis have suffered much and struggled hard for the chance to live in freedom, and now they can lead the Arab world in realizing that aim.