Analysis
and Recommendations
(Revised March 2006)
Article 2:
First: Islam is the official religion of the State and is a
foundation source of legislation:
A. No law may be enacted that contradicts the
established provisions of Islam
B. No law may be
enacted that contradicts the principles of
democracy.
C. No law may be enacted that
contradicts the rights and basic freedoms stipulated in this
Constitution.
Second: This Constitution guarantees the Islamic identity of the
majority of the Iraqi people and guarantees the full religious rights to
freedom of religious belief and practice of all individuals such as
Christians, Yazidis, and Mandean Sabeans.
Summary
- Under international standards, a state may declare an official state
religion, provided basic rights, including the individual right to freedom of thought, conscience,
and religion or belief, are respected for all without discrimination.
- The framework of Art. 2, including establishing Islam as a "foundation
source of legislation" and prohibiting any law "that contradicts the
established provisions of Islam" or "the rights and basic freedoms" provided
in the constitution, follows the compromises developed in Iraq's Transitional
Administrative Law (TAL), with some slight variations.
Commentary
Under the International Covenant on Civil and Political Rights
(ICCPR),[1] the fact
[That] a religion is recognized as a state religion or that it is established
as official or traditional or that its followers comprise the majority of the
population, shall not result in any impairment of the enjoyment of any of the
rights under the Covenant.[2]
In other words, a state is entitled to declare an official state religion,
provided that this does not result in discrimination against or the impairment
of any rights of non-believers or adherents of other religions as enumerated
under the ICCPR.
Article 2 establishes Islam as "a foundation source of legislation."
According to a recent study undertaken by the U.S. Commission on International
Religious Freedom (USCIRF), a number of Muslim countries where Islam is the
state religion, including Egypt and the Gulf states, establish Islamic law,
principles, or jurisprudence as "the basis for," "the principal source of," "a
principal source of," or "the source of" legislation.[3] However, in many of these cases, "no additional
constitutional guidance is given to address the question of what governmental
body, process, or mechanism, if any, is charged with assessing the conformity of
legislation with Islamic principles or law."[4] Moreover, many of these constitutions fail to provide any
further definition of terms such as Islam or sharia to facilitate or limit
interpretation of what "sharia" means.
In the case of Iraq, the new permanent constitution makes Islam "a foundation
source of legislation," and specifies that the Federal Supreme Court will be
tasked with "Interpreting the provisions of the Constitution."[5] It appears that the new constitution also
attempts to limit the scope of possible interpretation under which the
legislature or judiciary might determine that a law is in fact contrary to Islam
by stating that no law can contradict "the established provisions of Islam."
This formulation of article 2 follows closely the framework originally set out
in the TAL,[6] with two
modifications:
- Islam is declared "a foundation source" rather than
"a source of legislation"; and
- No law can contradict "the established provisions of Islam" rather than
its "universally agreed tenets."[7]
While the task of defining the scope and legal meaning of the term
"established provisions of Islam" ultimately is expected to fall to the Federal
Supreme Court, the constitution also requires, again following closely the TAL
formula, that the Court simultaneously ensure that no law is contrary to the
"rights and basic freedoms stipulated in [the] constitution." The inclusion of
this provision represents a significant improvement over initial draft language,
as it appears to place respect for Islam and human rights on an equal level.
Moreover, this approach is favorable to other "repugnancy clause" models, such
as in the Afghan constitution, which fails to explicitly require the
interpretation of Islam to be in accordance with human rights protections.
Despite the apparent effort to constrain any potential interpretation of
Islam from going beyond its "established provisions" or running counter to human
rights guaranteed in the constitution, USCIRF previously has expressed concern,
in the case of the TAL, that a constitutional arrangement establishing a role
for Islam as a source of legislation nevertheless "could be used by judges to
abridge the internationally recognized human rights of political and social
reformers, those voicing criticism of prevailing policies, religious minorities,
women, or others."[8] This concern
is amplified by the fact that the new permanent constitution allows for the
appointment of "experts in Islamic jurisprudence" to the Federal Supreme
Court.[9]
Part Two of Art. 2 also mirrors the TAL formulation, with some changes:
- The draft "guarantees" rather than "respects" the
Islamic identity of the majority
- The draft specifically references religious groups "such as" Christians,
Yazidis, and Mandaean Sabeans as being protected by the guarantee of the full
religious rights of all individuals to freedom of religious belief and
practice.
Guaranteeing Islamic identity may place the state in the role of protecting
Islam, which in turn may permit the criminalization of apostasy, blasphemy, and
other "offenses against religion," as well as result in discrimination against
non-Muslims in a variety of areas.
Article 2 also contains promising language regarding the right to freedom of
religion with respect to belief and practice, and specific mention of Yazidis
may signal a positive development insofar as this religious group, which
constitutes less than 1% of Iraq's population, is regarded by some Muslims as a
religion of "devil worshippers." That said, there is still an open question as
to whether the right to choose not to believe in any particular religion will be
protected under this provision or whether other religions, such as the Baha'i
faith, will also be able to exercise their full right to freedom of
religion.
Recommendations
- Strengthen protection of human rights by specifying that no law shall
contradict "the rights and basic freedoms stipulated in this constitution,
including the principles of equality and nondiscrimination, or the
human rights guaranteed under international agreements to which Iraq is a
state party."
- Define more explicitly what the "established
provisions of Islam" encompasses or excludes, and the possible sources
available for making such a determination.
- Revert the constitution's guarantee concerning "the Islamic identity of
the majority" to an expression of "respect for" that identity. This would
minimize the possibility that the constitutional obligation to guarantee
Islamic identity does not result in violations of the right to freedom of
thought, conscience, religion or belief under international law.
Article 7:
First: Any entity or program that adopts, incites, facilitates,
glorifies, promotes, or justifies racism or terrorism or accusations of being
an infidel (takfir) or ethnic cleansing, especially the Saddamist
Ba'ath in Iraq and its symbols, under any name whatsoever, shall be
prohibited. Such entities may not be part of political pluralism in
Iraq. This shall be regulated by law.
Second: The State shall undertake to combat terrorism in all its
forms, and shall work to protect its territories from being a base, pathway,
or field for terrorist activities.
Commentary
This article has the potential to be a positive provision in that it
prohibits racism and the act of labeling individuals as "infidels,"[10] problems that could impede
democratic development and the exercise of human rights in Iraq. However,
the current wording of the article is very broad and, without further
refinement, the provision could limit the exercise of the right to freedom of
thought, expression, association and other fundamental rights and freedoms.
Recommendations
- Clarify intent and scope of the prohibition on
related to "accusations of being an infidel."
- Add language from the TAL prohibiting the arrest or detention of any
individual "by reason of...religious beliefs."[11]
Article 10:
The holy shrines and religious sites in Iraq are religious and civilizational
entities. The State is committed to assuring and maintaining their
sanctity, and to guaranteeing the free practice of rituals in them.
Summary
- This article is intimately linked to the right to freedom of religion or
belief, since safeguarding places of worship and guaranteeing the right to
practice rituals are key components of the broader right.
Commentary
This article is positive insofar as it identifies holy shrines and religious
places generally as "religious and civilizational entities." Earlier drafts
specifically cited Shi'a religious shrines only. That said, this provision still
omits the word "all" from the text leaving open to interpretation which shrines
and religious places merit recognition and/or safeguarding.
Recommendation
- Revise text to explicitly provide equal protection and safeguard of right
to practice rituals to "all holy shrines and religious places in
Iraq."
Article 14:
Iraqis are equal before the law without discrimination based on gender, race,
ethnicity, nationality, origin, color, religion, sect, belief or opinion, or
economic or social status.
Summary
- International human rights standards require a state to extend equal
status to "all individuals within its territory and subject to its
jurisdiction," not only to its citizens.[12]
- The UN Human Rights Committee has specifically commented that States
parties to the ICCPR should ensure that traditional, historical, religious, or
cultural attitudes are not used to justify violations of women's right to
equality before the law and to equal enjoyment of all Covenant rights.[13]
- Principles of sharia should not be allowed to limit or restrict human
rights guarantees, including the right to equality and nondiscrimination,
particularly for women and religious minorities. Such action could potentially
undermine the very object and purpose of international treaties such as the
ICCPR.
Recommendation
- Modify language to apply to "all individuals" rather than "Iraqis"
only.
Article 29:
First:
A. The family is the foundation of society; the
State shall preserve it and its religious, moral, and national
values.
Summary
- This article may be used to justify or impose government-sanctioned
religious values or principles on Iraqis.
Commentary
According to the ICCPR, if a set of beliefs is treated as official ideology
in a constitution, this shall not result in any impairment of the freedom of
thought, conscience or religion, or in any discrimination against persons who do
not accept the official ideology, or who oppose it.[14]
Iraq is a signatory to the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW).[15] The Committee overseeing this treaty's implementation
has recommended that "States parties should resolutely discourage any notions of
inequality of women and men which are affirmed by laws, or by religious or
private law or by custom,"[16] and
has been critical of reservations taken by States Parties which invoke a
religious vision of the family as a basis for noncompliance with the treaty,
especially as regards Arts. 2 and 16 of the CEDAW.
In fact, Iraq previously has submitted reservations to CEDAW on both of these
articles, basing its objection to the treaty's equality provisions in part on
the need to protect a role for sharia.[17] The Committee has recommended that:
Whatever form [or concept the family] takes, and whatever the legal system,
religion, custom or tradition within the country, the treatment of women in the
family both at law and in private must accord with the principles of equality
and justice for all people, as article 2 of the Convention requires.[18]
Moreover, the Committee maintains "the view that article 2 is central to the
objects and purpose of the Convention" and that "reservations to article 16,
whether lodged for national, traditional, religious or cultural reasons, are
incompatible with the Convention and therefore impermissible and should be
reviewed and modified or withdrawn."[19]
Given the problematic nature of Iraq's existing reservations to CEDAW and the
possible interpretation that may evolve from Art. 29, there is a basis for
concern that the new constitutional language may be used to limit women's rights
specifically-or the rights of all Iraqis generally-based on the imposition of
state-interpreted and state-sanctioned values flowing from a single religious
tradition.
Furthermore, under international standards, children should not be compelled
to receive teaching on religion or belief that is against the wishes of the
parents or guardians. International standards dictate that the freedom of
parents to ensure a religious and moral education cannot be restricted.[20]
Finally, it should be noted that the UN Human Rights Committee has found that
"the concept of morals derives from many social, philosophical and religious
traditions." Consequently, limitations imposed on Covenant rights "for the
purpose of protecting morals must be based on principles not deriving
exclusively from a single tradition."[21]
Recommendations
- Remove the term "religious" from the article.
- Specify that any limitations premised on "moral
values" be based "on principles not deriving exclusively from a single
tradition."
- Alternatively, specify that any action to preserve the family's religious,
moral, and national values shall not violate equality and nondiscrimination
for all Iraqis.
Article 35:
The state shall promote cultural activities and institutions in a manner that
befits the civilizational and cultural history of Iraq, and it shall seek to
support indigenous Iraqi cultural orientations.
Summary
- This article, introduced in the final round of constitutional
negotiations, commits the Iraqi government to support "indigenous Iraqi
cultural orientations." However, the phrase "indigenous Iraqi cultural
orientations" is vague enough to present opportunities for potential
discrimination in state funding and support for organizations and activities
among the different religious communities in Iraq.
Commentary
There is nothing in this article to ensure that Iraq's minority cultures
receive fair treatment in state support. Under Art. 27 of the ICCPR, minority
groups "shall not be denied the right, in community with the other members of
their group, to enjoy their own culture, to profess and practise their own
religion, or to use their own language."
The UN Human Rights Committee has interpreted Art. 27 to require that:
positive measures by States may also be necessary to protect the identity of
a minority and the rights of its members to enjoy and develop their culture and
language and to practise their religion, in community with the other members of
the group.[22]
In other words, any steps by the government to encourage a specific cultural
vision cannot come at the expense of the rights of members of national, ethnic,
religious, or linguistic minorities in Iraq.
Recommendations
- Implementation of Art. 35 of the constitution should
ensure that the definition of "indigenous Iraqi cultural orientations" does
not unfairly discriminate between persons in Iraq in the enjoyment of the
rights established under the ICCPR, including Art. 27.
- The Iraqi government should take positive steps to ensure, in accordance
with the ICCPR, the protection of minority identity, including the rights of
all individual members of ethnic, religious or linguistic minorities to enjoy
and develop their culture and language and to practice their religion.
Article 37:
Second: The State shall guarantee protection of the individual from
intellectual, political and religious coercion.
Summary
- The ICCPR bars coercion that would impair the right to have or adopt a
religion or belief, and this article improves on previous drafts that omitted
altogether any provision prohibiting coercion in matters of religion. This
provision is also promising insofar as it protects individuals rather than
groups only.
Commentary
Under international law, no limitations are allowed on the freedom to have or
to adopt a religion or belief, or on the freedom from coercion that would impair
those rights.[23] Under the ICCPR,
examples of coercion include the "use of threat of physical force or penal
sanctions to compel believers or non-believers to adhere to their religious
beliefs and congregations, to recant their religion or belief or to convert.
Policies or practices having the same intention or effect, such as, for example,
those restricting access to education, medical care, employment" or other rights
guaranteed under the ICCPR are similarly inconsistent with the treaty.[24]
Art. 37 omits a clause found in the TAL that no one could be detained "by
reason of political or religious beliefs."[25] Such a clause is critical to prevent the restriction of
debate and dissent on religious and political questions based on the use of laws
on blasphemy, apostasy, and other so-called "religious offenses."
Recommendation
- Reinstate TAL provision that prohibits detention of individuals "by reason
of political or religious beliefs."
Article 38:
The State shall guarantee in a way that does not violate public order and
morality:
A. Freedom of expression using all
means.
B. Freedom of press, printing,
advertisement, media and publication.
C. Freedom of
assembly and peaceful demonstration, and this shall be regulated by
law.
Summary
- The qualifications on the fundamental rights to freedom of expression,
press, and assembly may have implications for the protection of human
rights.
Commentary
Under international law, any restrictions placed on the exercise of rights
must be both prescribed by law and necessary in pursuit of
specific public interests, including protection of public order and morality.[26] In all cases, any limitations
must be directly related and proportionate to the specific need on which they
are predicated.
Recommendations
- Remove qualification "regulated by law" concerning
the right to freedom of assembly and peaceable demonstration.
- Any limitations must be interpreted in accordance with international
standards.
Article 41:
Iraqis are free in their commitment to their personal status according to
their religions, sects, beliefs, or choices, and this shall be regulated by law.
Summary
- This article apparently seeks to address personal
status issues, and under what circumstances religious or civil law will govern
such matters.
- Given the ambiguous language, it is unclear what
legal system-religious or civil-will apply and what steps will be required by
the parties involved to opt out of either system.
- Certain religious systems may be omitted or excluded from this
arrangement, resulting in unrecognized minority groups potentially having to
submit to the religious law of the dominant group (or another) religious
community.
Commentary
As currently formulated, this article leaves open to the legislature how
Iraqis will access civil courts for matters relating to personal status.
Ultimately, this decision may result in individuals being compelled to submit to
religious courts on matters of personal status. Such a variegated system also
may raise concerns with respect to equality and nondiscrimination between men
and women, as well as between members of the various religious communities in
Iraq.
There are additional complications that may arise by not expressly
guaranteeing that civil law will be the default option for personal status
matters:
- Requiring individuals who are non-believers to submit to religious
rulings.[27]
- Given significant concern that women will be unable
to freely exercise their right to opt into civil law without the consent of
the spouse, that women will be forced to submit to a religious court.
- Cases involving mixed marriages or individuals whose religious beliefs may
not be recognized officially in Iraq may be resolved by using the country's
dominant religion as the default.
Finally, international human rights organizations, such as Amnesty
International, have previously observed that criteria for appointing religious
court judges may fall short of international standards with regard to training
for judicial personnel.[28]
Recommendations
- The article should clearly state that the default
system is civil law, and that the free and informed consent of both parties is
required to move a hearing regarding personal status to the religious law
system.
- To ensure equality and nondiscrimination within the
religious court system and to further guarantee the human rights enshrined in
the Iraqi constitution, art. 41 should affirm that religious court rulings are
subject to the final review under Iraq's civil law.
- Appointment of judges to courts adjudicating personal status matters,
including any religious courts, should meet international standards with
respect to judicial training.
Article 42:
Each individual shall have the freedom of thought, conscience, and belief.
Summary
- This is a positive article reflecting international
human rights guarantees that was missing from earlier drafts.
- Although Art. 2 provides for the "full religious rights to freedom of
religious belief and practice," this right should be reiterated here, as part
of the chapter on fundamental rights and freedoms.
Recommendation
- This article can be strengthened by adding "religion" to the list of
freedoms.
Article 43:
First: The followers of all religions and sects are free
in the:
A. Practice of religious rites, including the
Husseini rituals.
B. Management of religious
endowments (waqf), their affairs, and their religious institutions,
and this shall be regulated by law.
Second: The State shall guarantee freedom of worship and the
protection of places of worship.
Summary
- Some language remains a possible basis for narrow
interpretation of the right to freedom of religion or belief.
- In particular, the second part of article 43 reflects an improvement on
previous draft language.
Commentary
Freedom of thought, conscience, and religion or belief encompasses more than
the "practice of religious rites." Use of the term "religious rites" may be
narrowly interpreted and result in constraints against the right to freedom of
religion or belief. The same is true of "freedom of worship," which is why
Art. 42 should refer specifically to freedom of religion as a protected right.
The full scope of the right to manifest religion or belief includes the rights
of worship, observance, practice, and teaching, broadly construed.
Under international law, these rights, including the management of religious
institutions, may be subject to only such limitations as are prescribed by law
and are necessary to protect public safety, order, health or morals or the
fundamental rights and freedoms of others. Limitations are not allowed on
grounds not specified under Art. 18 of the ICCPR, even if they would be allowed
as restrictions to other rights protected in the Covenant, such as national
security. Finally, limitations on the freedom to manifest a religion or belief
that rely on morality must be based on principles not deriving from a single
tradition.[29]
Recommendation
- Modify Part One accordingly:
First: All individuals are free to manifest religion or
belief, including:
A. Worship, observance, practice, and teaching,
including the Husseini rituals.
B. Management of religious
endowments (waqf), their affairs, and their religious
institutions.
Article 45:
First: The State shall seek to strengthen the role of civil society
institutions, and to support, develop and preserve their independence in a way
that is consistent with peaceful means to achieve their legitimate goals, and
this shall be regulated by law.
Second: The State shall seek the advancement of the Iraqi clans and
tribes, shall attend to their affairs in a manner that is consistent with
religion and the law, and shall uphold their noble human values in a way that
contributes to the development of society. The State shall prohibit the
tribal traditions that are in contradiction with human rights.
Summary
- This article has the potential to be a positive
provision in that it promotes the role of civil society organizations, one
tool that can facilitate democratic development and protections for human
rights.
- This article also takes the positive step of
explicitly prohibiting tribal practices that are deemed inconsistent with
human rights.
- The current wording however, is very broad, particularly with regard to
terms such as "peaceful means" and "legitimate goals." Without further
refinement, these terms may be interpreted to limit the exercise of the right
to freedom of assembly, association, and other fundamental rights and
freedoms, under the government pretext of ensuring "peace" or defining the
scope of "legitimate goals."
Commentary
The amendment of this provision to ensure the unfettered development of
peaceful civil society organizations is of particular significance, especially
given recent reports of legislative efforts already underway to restrict the
organization and operation of nongovernmental organizations (NGOs) in Iraq.[30]
Recommendations
- Remove language regarding "legitimate goals" to
ensure that the state is not positioned to approve only those civil society
organizations that reflect the views of the government.
- The current wording of Part Two makes a reference to "manner that is
consistent with religion..." The meaning and intent of this provision should be
clarified.
Article 46:
Restricting or limiting the practice of any of the rights or liberties
stipulated in this Constitution is prohibited, except by a law or on the basis
of a law, and insofar as that limitation or restriction does not violate the
essence of the right or freedom.
Summary
- This article is problematic as it opens the door to
overly broad limitations on human rights guarantees, inconsistent with
international standards.
- This article also appears to contradict or at least narrow application of
the supremacy of the constitution established at Art. 13.
Commentary
Although international treaties such as the ICCPR permit certain limitations
on human rights guarantees under specific, narrowly constructed conditions, this
article open the door to limitations on rights that may go far beyond these
conditions, and result in the possible undermining of the right while preserving
its "essence." Judicial or legislative interpretation of what might violate the
"essence of the right or freedom" leaves substantial room for diluting the scope
of a given right and rendering human rights protections essentially ineffective.
Recommendations
- Provide that any limitation shall comply with the standards set forth
under the ICCPR and other international human rights treaties, and will not
limit these rights in any other manner.
Article 90:
The Higher Juridical Council shall oversee the affairs of the judicial
committees. The law shall specify the method of its establishment, its
authorities, and the rules of its operation.
Recommendation
- Given the significant scope of powers that will rest with the Higher
Juridical Council, the guidelines for its establishment and operation should,
at a minimum, require a 2/3 majority vote within the Council of
Representatives.
Article 92:
First: The Federal Supreme Court is an independent judicial body,
financially and administratively.
Second: The Federal Supreme Court shall be made up of a number of
judges, experts in Islamic jurisprudence, and legal scholars, whose number,
the method of their selection, and the work of the Court shall be determined
by a law enacted by a two-thirds majority of the members of the Council of
Representatives.
Summary
- This article is problematic insofar as it potentially mandates that
experts in Islamic jurisprudence and without any civil law training may be
appointed to the Iraq's highest court.
Commentary
Opening the Court bench to individuals whose only background is in sharia
will place Iraq's judiciary in the company of Iran, Saudi Arabia, and
Afghanistan-some of the only countries in the world to allow individuals without
traditional legal training to serve as judges in matters pertaining to civil
law. Even Pakistan, which has sharia courts, also has a civil Supreme Court,
which has moved to overturn specific instances where sharia principles would be
used to violate human rights, including the imposition of death sentences for
blasphemy. According to basic principles formulated by the United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, "Persons
selected for judicial office shall be individuals of integrity and ability
with appropriate training or qualifications in law."[31]
The rationale behind installing experts in Islamic jurisprudence on the bench
is premised on the need to interpret the implications of having sharia as a
fundamental source of legislation. However, requiring the appointment of experts
trained only in Islamic jurisprudence to Iraq's highest court may also run afoul
of the UN General Assembly's view that methods of judicial selection shall not
discriminate "against a person on the grounds of race, colour, sex, religion,
political or other opinion, national or social origin, property, birth or
status."[32]
The Arab Human Development Report 2004, prepared by the
United Nations Development Program, observes that independence of the judiciary
is threatened in the Arab world in part as a result of interference by
undemocratic, ideological regimes. These regimes interfere with judicial
independence under the pretext of "protecting the ideological foundations" of
the state.[33] The system used for
making judicial appointments is one means by which the executive or legislature
may exert control over the judiciary. Indeed, those justices appointed to the
Supreme Court who are trained solely in Islamic jurisprudence may be more likely
to reflect an interpretation which favors the dominant religious sect in Iraq,
rather than a judicial approach that is objective and evenly applied to all
Iraqis.
That said, the requirement of a 2/3 majority in this draft may be used to
ensure an implementing statute that can prevent egregious attempts to abuse this
article. However, at this point, it remains an open question whether the
appointment of individual judges ultimately will require a similar 2/3
majority.
Recommendations
- Remove the ability of making appointments to the
Federal Supreme Court based on training in Islamic jurisprudence alone. At a
minimum, require that all judges have training in civil law, including a law
degree.
- Clarify the appointment procedure to specifically state that a 2/3
majority of parliament is required to appoint a judge to the Federal Supreme
Court.
Article 102:
The High Commission for Human Rights, the Independent Electoral Commission,
and the Commission on Public Integrity are considered independent commissions
subject to monitoring by the Council of Representatives, and their functions
shall be regulated by law.
Summary
- This article does not explicitly guarantee the independence of the High
Commission for Human Rights or specify that its functions shall be in
accordance with the UN's Paris Principles.
Commentary
Art. 50 of the TAL called for the creation of a National Commission for Human
Rights, in accordance with the Paris Principles issued by the United Nations,
"for the purpose of executing the commitments relative to the rights set forth
in this Law and to examine complaints pertaining to violations of human
rights." The TAL further envisioned that this Commission would "include an
Office of the Ombudsman to inquire into complaints, [and have] the power to
investigate, on its own initiative or on the basis of a complaint submitted to
it, any allegation that the conduct of the governmental authorities is arbitrary
or contrary to law." The importance of an independent body designed to monitor
and investigate human rights complaints in Iraq cannot be overstated.
Recommendations
- Clearly provide for the independent and non-sectarian
establishment of a High Commission for Human Rights with a mandate to
investigate individual complaints.
- Remove monitoring oversight by the Council of
Representatives.
- Include reference to the Paris Principles as the basis for the High
Commission's functions and operations.
Article 104:
A commission named The Martyrs' Foundation shall be established
and attached to the Council of Ministers, and its functions and competencies
shall be regulated by law.
Recommendations
- Clarify meaning and intent of this Commission.
- Ensure that the Commission will not be used for sectarian purposes or in
any other discriminatory manner.
Article 126:
Second: The fundamental principles mentioned in Section One and the
rights and liberties mentioned in Section Two of the Constitution may not be
amended except after two successive electoral terms, with the approval of
two-thirds of the members of the Council of Representatives, the approval of
the people in a general referendum, and the ratification by the President of
the Republic within seven days.
Recommendation
- As a means of further securing the human rights provided in the
constitution, the amendment formula should state that human rights guarantees
and protections cannot be subject to any amendment that would weaken their
application or effect. For example, Kuwait's constitution prevents amendments
with respect to "the principles of liberty and equality... [unless such an
amendment serves] to increase the guarantees of liberty and equality."[34]
[1] Iraq signed the INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS on March 23, 1976, without declaration or
reservation. See Office of the United Nations High Commissioner for Human
Rights, Status of Ratifications of the Principal International Human Rights
Treaties (June 9, 2004), http://www.unhchr.ch/pdf/report.pdf
[hereinafter ICCPR].
[2] Hum. Rts. Comm., gen. cmt.
22, art. 18, para. 9 (forty-eighth session, 1993), UN Doc. #
CCPR/C/21/Rev.1/Add.4 (1994), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9a30112c27d1167cc12563ed004d8f15?Opendocument
[hereinafter HRC General Comment No. 22].
[3] Tad Stahnke and Robert C.
Blitt, The Religion-State Relationship and the Right to Freedom of Religion
or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly
Muslim Countries, 36 Geo. J. Int'l L. 947, 959 (2005) [hereinafter
Stahnke and Blitt].
[4] Id. at 959. In Egypt,
the interpretive role has fallen to the Supreme Constitutional Court, whereas in
Pakistan, the constitution specifically assigns this role to the Federal Shariat
Court.
[5] Iraq Const.
art.93(2).
[6] The Transitional
Administrative Law provides under Art. 7(a), that "Islam is the official
religion of the State and is to be considered a source of
legislation. No law that contradicts the universally agreed tenets
of Islam, the principles of democracy, or the rights cited in Chapter Two of
this Law may be enacted during the transitional period. This Law respects
the Islamic identity of the majority of the Iraqi people and guarantees the
full religious rights of all individuals to freedom of religious belief and
practice" (emphasis added) [hereinafter TAL].
[7] The Iraqi judiciary likely
will be tasked with determining the significance, if any, of this shift in
wording.
[8] Press Release, USCIRF, Iraq:
USCIRF Commends Extensive Protection of Human Rights in Interim Constitution
(March 8, 2004), http://uscirf.gov/mediaroom/press/2004/march/03082004_iraq.html.
[9] Iraq Const. art.92. This
provision is discussed in greater detail below.
[10] In theory, this article
may, by extension, cover accusations of apostasy as well.
[11] TAL, art. 15(c).
[12] ICCPR, supra note
1, at art. 2(1), Mar. 23, 1976, 999 U.N.T.S. 171..).
[13] Hum. Rts. Comm., gen. cmt.
28, art. 3, para. 5 (2000),) ,U.N. Doc. # CCPR/C/21/Rev.1/Add.10, March 23, 2000
available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/13b02776122d4838802568b900360e80?Opendocument.
[14] HRC General Comment No.
22, supra note 2, at para. 10.
[15] Iraq signed onto CEDAW on
August 13, 1986.
[16] THE CONVENTION ON THE
ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, General.
Recommendation No. 21: Equality in Marriage and Family Relations, U.N. Doc. #
A/49/38 para 4 (February 4, 1994) http://www.unhchr.ch/tbs/doc.nsf/0/7030ccb2de3baae5c12563ee00648f1f?Opendocument
[hereinafter, CEDAW General Recommendation No. 21].
[17] Iraq's reservation reads
in part: "1. Approval of and accession to this Convention shall not mean that
the Republic of Iraq is bound by the provisions of article 2, paragraphs (f) and
(g), of article 9, paragraphs 1 and 2, nor of article 16 of the Convention. The
reservation to this last-mentioned article shall be without prejudice to the
provisions of the Islamic Shariah according women rights equivalent to the
rights of their spouses so as to ensure a just balance between them." A number
of countries have protested the legitimacy of this reservation on the basis that
it undermines the object and purpose of CEDAW. See http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm#N31
and http://www.bayefsky.com/html/iraq_t2_cedaw.php.
[18] CEDAW General
Recommendation No. 21, supra note 18, at para. 13.
[19] CEDAW, Reservations to
CEDAW, (August 12, 2005) available at http://www.un.org/womenwatch/daw/cedaw/reservations.htm.
[20] HRC General Comment
No. 22, supra note 2, at para. 8; Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief, at art.
5(2) (November 25, 1981).
[21] HRC General Comment No.
22, supra note 2, at para. 8.
[22] Hum. Rts. Comm., gen. cmt.
23, art. 27, para. 6., U.N. Doc. # CCPR/C/21/Rev.1/Add.5, April 8, 1994, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8bb21c12563ed004df111?Opendocument
[hereinafter, HRC General Comment No. 23].
[23] HRC General Comment No.
22, supra note 2, at para. 8
[24] Id. at para
5.
[25] TAL, art. 15(c).
[26] See ICCPR, supra
note 1, at Arts. 18, 19, 21, & 22; See also The Universal
Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3rd Sess., at art.
29 (1948).
[27] It should be noted that
the right to freedom of religion and belief also protects the right to hold
non-theistic or atheistic beliefs. International standards protecting these
rights are not limited in application to traditional religions or to religions
and beliefs with institutional characteristics or practices analogous to those
of traditional religions. HRC General Comment No. 22, supra note 2, at
para. 2.
[28] Amnesty International,
BAOBAB for Women's Human Rights and Amnesty International Joint Statement on the
Implementation of New Sharia-based Penal Codes in Northern Nigeria (March 25,
2002), http://web.amnesty.org/library/index/engafr440082002.
[29] HRC General Comment No.
22, supra note 2, at para. 8.
[30] U.S. Dept. of State,
Section 2207 Report Quarterly Update to Congress on Iraq Relief and
Reconstruction, 14, January 2006, http://www.state.gov/p/nea/rls/rpt/2207/.
[31] BASIC PRINCIPLES ON THE
INDEPENDENCE OF THE JUDICIARY, Seventh U.N. Congress on the Prevention of Crime
and the Treatment of Offenders, Milan, Aug. 26 - Sept. 6, 1985, U.N. Doc
A/Conf.121/22/Rev.1 at art. 10 (1985) (emphasis added) http://www.unhchr.ch/html/menu3/b/h_comp50.htm.
[32] Id. at art.
10.
[33] United Nations Development
Programme, Arab Human Development Report 122 (2004).
[34] Kuwait Const. art.
175.
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