|Iraq's Permanent Constitution (March 2006)|
Analysis and Recommendations
(Revised March 2006)
Under the International Covenant on Civil and Political Rights (ICCPR), 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.
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. 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." 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." 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, with two modifications:
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." 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.
Part Two of Art. 2 also mirrors the TAL formulation, with some changes:
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.
This article has the potential to be a positive provision in that it prohibits racism and the act of labeling individuals as "infidels," 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.
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.
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.
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.
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.
Iraq is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). 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," 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. 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.
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."
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.
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."
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.
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.
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.
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. 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.
Art. 37 omits a clause found in the TAL that no one could be detained "by reason of political or religious beliefs." 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."
The State shall guarantee in a way that does not violate public order and morality:
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. In all cases, any limitations must be directly related and proportionate to the specific need on which they are predicated.
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.
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:
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.
Each individual shall have the freedom of thought, conscience, and belief.
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.
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.
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.
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.
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.
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."
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."
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. 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.
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.
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.
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.
 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].
 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].
 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].
 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.
 Iraq Const. art.93(2).
 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].
 The Iraqi judiciary likely will be tasked with determining the significance, if any, of this shift in wording.
 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.
 Iraq Const. art.92. This provision is discussed in greater detail below.
 In theory, this article may, by extension, cover accusations of apostasy as well.
 TAL, art. 15(c).
 ICCPR, supra note 1, at art. 2(1), Mar. 23, 1976, 999 U.N.T.S. 171..).
 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.
 HRC General Comment No. 22, supra note 2, at para. 10.
 Iraq signed onto CEDAW on August 13, 1986.
 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].
 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.
 CEDAW General Recommendation No. 21, supra note 18, at para. 13.
 CEDAW, Reservations to CEDAW, (August 12, 2005) available at http://www.un.org/womenwatch/daw/cedaw/reservations.htm.
 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).
 HRC General Comment No. 22, supra note 2, at para. 8.
 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].
 HRC General Comment No. 22, supra note 2, at para. 8
 Id. at para 5.
 TAL, art. 15(c).
 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).
 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.
 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.
 HRC General Comment No. 22, supra note 2, at para. 8.
 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.
 Id. at art. 10.
 United Nations Development Programme, Arab Human Development Report 122 (2004).
 Kuwait Const. art. 175.