LAW OF ADMINISTRATION FOR
THE STATE OF IRAQ
FOR THE
TRANSITIONAL PERIOD
8 March
2004
PREAMBLE
The people of Iraq, striving to reclaim their freedom,
which was usurped by the previous tyrannical regime, rejecting violence and
coercion in all their forms, and particularly when used as instruments of
governance, have determined that they shall hereafter remain a free people
governed under the rule of law.
These people, affirming today their respect for
international law, especially having been amongst the founders of the United
Nations, working to reclaim their legitimate place among nations, have
endeavored at the same time to preserve the unity of their homeland in a
spirit of fraternity and solidarity in order to draw the features of the
future new Iraq, and to establish the mechanisms aiming, amongst other aims,
to erase the effects of racist and sectarian policies and practices.
This Law is now established to govern the affairs of
Iraq during the transitional period until a duly elected government,
operating under a permanent and legitimate constitution achieving full
democracy, shall come into being.
CHAPTER ONE – FUNDAMENTAL PRINCIPLES
Article 1.
(A) This Law shall be
called the “Law of Administration for the State of Iraq for the Transitional
Period,” and the phrase “this Law” wherever it appears in this legislation
shall mean the “Law of Administration for the State of Iraq for the
Transitional Period.”
(B) Gender-specific
language shall apply equally to male and female.
(C) The Preamble to
this Law is an integral part of this Law.
Article 2.
(A) The term
“transitional period” shall refer to the period beginning on 30 June 2004
and lasting until the formation of an elected Iraqi government pursuant to a
permanent constitution as set forth in this Law, which in any case shall be
no later than 31 December 2005, unless the provisions of Article 61 are
applied.
(B) The transitional
period shall consist of two phases.
(1) The first phase shall begin with the
formation of a fully sovereign Iraqi Interim Government that takes power on
30 June 2004. This government shall be constituted in accordance with a
process of extensive deliberations and consultations with cross-sections of
the Iraqi people conducted by the Governing Council and the Coalition
Provisional Authority and possibly in consultation with the United Nations.
This government shall exercise authority in accordance with this Law,
including the fundamental principles and rights specified herein, and with
an annex that shall be agreed upon and issued before the beginning of the
transitional period and that shall be an integral part of this Law.
(2) The second phase shall begin after the
formation of the Iraqi Transitional Government, which will take place after
elections for the National Assembly have been held as stipulated in this
Law, provided that, if possible, these elections are not delayed beyond 31
December 2004, and, in any event, beyond 31 January 2005. This second phase
shall end upon the formation of an Iraqi government pursuant to a permanent
constitution.
Article 3.
(A) This Law is the
Supreme Law of the land and shall be binding in all parts of Iraq without
exception. No amendment to this Law may be made except by a three-fourths
majority of the members of the National Assembly and the unanimous approval
of the Presidency Council. Likewise, no amendment may be made that could
abridge in any way the rights of the Iraqi people cited in Chapter Two;
extend the transitional period beyond the timeframe cited in this Law; delay
the holding of elections to a new assembly; reduce the powers of the regions
or governorates; or affect Islam, or any other religions or sects and their
rites.
(B) Any legal provision that conflicts with this
Law is null and void.
(C) This Law shall
cease to have effect upon the formation of an elected government pursuant to
a permanent constitution.
Article 4.
The system of government in Iraq shall be
republican, federal, democratic, and pluralistic, and powers shall be
shared between the federal government and the regional governments,
governorates, municipalities, and local administrations. The federal system
shall be based upon geographic and historical realities and the separation
of powers, and not upon origin, race, ethnicity, nationality, or confession.
Article 5.
The Iraqi Armed Forces shall be subject to
the civilian control of the Iraqi Transitional Government, in accordance
with the contents of Chapters Three and Five of this Law.
Article 6.
The Iraqi Transitional Government shall take
effective steps to end the vestiges of the oppressive acts of the previous
regime arising from forced displacement, deprivation of citizenship,
expropriation of financial assets and property, and dismissal from
government employment for political, racial, or sectarian reasons.
Article 7.
A) 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.
(B) Iraq is a country
of many nationalities, and the Arab people in Iraq are an inseparable part
of the Arab nation.
Article 8.
The flag,
anthem, and emblem of the State shall be fixed by law.
Article 9.
The Arabic language and the Kurdish language
are the two official languages of Iraq. The right of Iraqis to educate
their children in their mother tongue, such as Turcoman, Syriac, or
Armenian, in government educational institutions in accordance with
educational guidelines, or in any other language in private educational
institutions, shall be guaranteed. The scope of the term “official
language” and the means of applying the provisions of this Article shall be
defined by law and shall include:
(1) Publication of the official gazette, in the
two languages;
(2) Speech and expression in official settings,
such as the National Assembly, the Council of Ministers, courts, and
official conferences, in either of the two languages;
(3) Recognition and publication of official
documents and correspondence in the two languages;
(4) Opening schools that teach in the two
languages, in accordance with educational guidelines;
(5) Use of both languages in any other settings
enjoined by the principle of equality (such as bank notes, passports, and
stamps);
(6) Use of both languages in the federal
institutions and agencies in the Kurdistan region.
CHAPTER TWO – FUNDAMENTAL RIGHTS
Article 10.
As an expression of the free will and
sovereignty of the Iraqi people, their representatives shall form the
governmental structures of the State of Iraq. The Iraqi Transitional
Government and the governments of the regions, governorates, municipalities,
and local administrations shall respect the rights of the Iraqi people,
including those rights cited in this Chapter.
Article 11.
(A) Anyone who
carries Iraqi nationality shall be deemed an Iraqi citizen. His citizenship
shall grant him all the rights and duties stipulated in this Law and shall
be the basis of his relation to the homeland and the State.
(B) No Iraqi may have
his Iraqi citizenship withdrawn or be exiled unless he is a naturalized
citizen who, in his application for citizenship, as established in a court
of law, made material falsifications on the basis of which citizenship was
granted.
(C) Each Iraqi shall
have the right to carry more than one citizenship. Any Iraqi whose
citizenship was withdrawn because he acquired another citizenship shall be
deemed an Iraqi.
(D) Any Iraqi whose
Iraqi citizenship was withdrawn for political, religious, racial, or
sectarian reasons has the right to reclaim his Iraqi citizenship.
(E) Decision Number
666 (1980) of the dissolved Revolutionary Command Council is annuled, and
anyone whose citizenship was withdrawn on the basis of this decree shall be
deemed an Iraqi.
(F) The National
Assembly must issue laws pertaining to citizenship and naturalization
consistent with the provisions of this Law
(G) The Courts shall
examine all disputes airising from the application of the provisions
relating to citizenship.
Article 12.
All Iraqis are equal in their rights without regard to
gender, sect, opinion, belief, nationality, religion, or origin, and they
are equal before the law. Discrimination against an Iraqi citizen on the
basis of his gender, nationality, religion, or origin is prohibited.
Everyone has the right to life, liberty, and the security of his person. No
one may be deprived of his life or liberty, except in accordance with legal
procedures. All are equal before the courts.
Article 13.
(A) Public and
private freedoms shall be protected.
(B) The right of free
expression shall be protected.
(C) The right of free
peaceable assembly and the right to join associations freely, as well as the
right to form and join unions and political parties freely, in accordance
with the law, shall be guaranteed.
(D) Each Iraqi has
the right of free movement in all parts of Iraq and the right to travel
abroad and return freely.
(E) Each Iraqi has
the right to demonstrate and strike peaceably in accordance with the law.
(F) Each Iraqi has
the right to freedom of thought, conscience, and religious belief and
practice. Coercion in such matters shall be prohibited.
(G) Slavery, the
slave trade, forced labor, and involuntary servitude with or without pay,
shall be forbidden.
(H) Each Iraqi has
the right to privacy.
Article 14.
The individual has the right to security,
education, health care, and social security. The Iraqi State and its
governmental units, including the federal government, the regions,
governorates, municipalities, and local administrations, within the limits
of their resources and with due regard to other vital needs, shall strive to
provide prosperity and employment opportunities to the people.
Article 15.
(A) No civil
law shall have retroactive effect unless the law so stipulates. There shall
be neither a crime, nor punishment, except by law in effect at the time the
crime is committed.
(B) Police,
investigators, or other governmental authorities may not violate the
sanctity of private residences, whether these authorities belong to the
federal or regional governments, governorates, municipalities, or local
administrations, unless a judge or investigating magistrate has issued a
search warrant in accordance with applicable law on the basis of information
provided by a sworn individual who knew that bearing false witness would
render him liable to punishment. Extreme exigent circumstances, as
determined by a court of competent jurisdiction, may justify a warrantless
search, but such exigencies shall be narrowly construed. In the event that
a warrantless search is carried out in the absence of an extreme exigent
circumstance, the evidence so seized, and any other evidence found
derivatively from such search, shall be inadmissible in connection with a
criminal charge, unless the court determines that the person who carried out
the warrantless search believed reasonably and in good faith that the search
was in accordance with the law.
(C) No one may be unlawfully arrested or
detained, and no one may be detained by reason of political or religious
beliefs.
(D) All persons shall
be guaranteed the right to a fair and public hearing by an independent and
impartial tribunal, regardless of whether the proceeding is civil or
criminal. Notice of the proceeding and its legal basis must be provided to
the accused without delay.
(E) The accused is
innocent until proven guilty pursuant to law, and he likewise has the right
to engage independent and competent counsel, to remain silent in response to
questions addressed to him with no compulsion to testify for any reason, to
participate in preparing his defense, and to summon and examine witnesses or
to ask the judge to do so. At the time a person is arrested, he must be
notified of these rights.
(F) The right to a
fair, speedy, and open trial shall be guaranteed.
(G) Every person
deprived of his liberty by arrest or detention shall have the right of
recourse to a court to determine the legality of his arrest or detention
without delay and to order his release if this occurred in an illegal
manner.
(H) After being found
innocent of a charge, an accused may not be tried once again on the same
charge.
(I) Civilians may
not be tried before a military tribunal. Special or exceptional courts may
not be established.
(J) Torture in all
its forms, physical or mental, shall be prohibited under all circumstances,
as shall be cruel, inhuman, or degrading treatment. No confession made
under compulsion, torture, or threat thereof shall be relied upon or
admitted into evidence for any reason in any proceeding, whether criminal or
otherwise.
Article 16.
(A) Public property
is sacrosanct, and its protection is the duty of every citizen.
(B) The right to
private property shall be protected, and no one may be prevented from
disposing of his property except within the limits of law. No one shall be
deprived of his property except by eminent domain, in circumstances and in
the manner set forth in law, and on condition that he is paid just and
timely compensation.
(C) Each Iraqi
citizen shall have the full and unfettered right to own real property in all
parts of Iraq without restriction.
Article 17.
It shall not be permitted to possess, bear,
buy, or sell arms except on licensure issued in accordance with the law.
Article 18.
There shall be
no taxation or fee except by law.
Article 19.
No political refugee who has been granted
asylum pursuant to applicable law may be surrendered or returned forcibly to
the country from which he fled.
Article 20.
(A) Every Iraqi who
fulfills the conditions stipulated in the electoral law has the right to
stand for election and cast his ballot secretly in free, open, fair,
competitive, and periodic elections.
(B) No Iraqi may be
discriminated against for purposes of voting in elections on the basis of
gender, religion, sect, race, belief, ethnic origin, language, wealth, or
literacy.
Article 21.
Neither the Iraqi Transitional Government
nor the governments and administrations of the regions, governorates, and
municipalities, nor local administrations may interfere with the right of
the Iraqi people to develop the institutions of civil society, whether in
cooperation with international civil society organizations or otherwise.
Article 22.
If, in the course of his work, an official
of any government office, whether in the federal government, the regional
governments, the governorate and municipal administrations, or the local
administrations, deprives an individual or a group of the rights guaranteed
by this Law or any other Iraqi laws in force, this individual or group shall
have the right to maintain a cause of action against that employee to seek
compensation for the damages caused by such deprivation, to vindicate his
rights, and to seek any other legal measure. If the court decides that the
official had acted with a sufficient degree of good faith and in the belief
that his actions were consistent with the law, then he is not required to
pay compensation.
Article 23.
The enumeration of the foregoing rights must
not be interpreted to mean that they are the only rights enjoyed by the
Iraqi people. They enjoy all the rights that befit a free people possessed
of their human dignity, including the rights stipulated in international
treaties and agreements, other instruments of international law that Iraq
has signed and to which it has acceded, and others that are deemed binding
upon it, and in the law of nations. Non-Iraqis within Iraq shall enjoy all
human rights not inconsistent with their status as non-citizens.
CHAPTER THREE – THE IRAQI TRANSITIONAL GOVERNMENT
Article 24.
(A) The Iraqi
Transitional Government, which is also referred to in this Law as the
federal government, shall consist of the National Assembly; the Presidency
Council; the Council of Ministers, including the Prime Minister; and the
judicial authority.
(B) The three
authorities, legislative, executive, and judicial, shall be separate and
independent of one another.
(C) No official or
employee of the Iraqi Transitional Government shall enjoy immunity for
criminal acts committed while in office.
Article 25.
The Iraqi Transitional Government shall have
exclusive competence in the following matters:
(A) Formulating
foreign policy and diplomatic representation; negotiating, signing, and
ratifying international treaties and agreements; formulating foreign
economic and trade policy and sovereign debt policies;
(B) Formulating and
executing national security policy, including creating and maintaining armed
forces to secure, protect, and guarantee the security of the country’s
borders and to defend Iraq;
(C) Formulating
fiscal policy, issuing currency, regulating customs, regulating commercial
policy across regional and governorate boundaries in Iraq, drawing up the
national budget of the State, formulating monetary policy, and establishing
and administering a central bank;
(D)
Regulating weights and measures and formulating a general policy on wages;
(E) Managing the
natural resources of Iraq, which belongs to all the people of all the
regions and governorates of Iraq, in consultation with the governments of
the regions and the administrations of the governorates, and distributing
the revenues resulting from their sale through the national budget in an
equitable manner proportional to the distribution of population throughout
the country, and with due regard for areas that were unjustly deprived of
these revenues by the previous regime, for dealing with their situations in
a positive way, for their needs, and for the degree of development of the
different areas of the country;
(F) Regulating Iraqi
citizenship, immigration, and asylum; and
(G) Regulating
telecommunications policy.
Article 26.
(A) Except as
otherwise provided in this Law, the laws in force in Iraq on 30 June 2004
shall remain in effect unless and until rescinded or amended by the Iraqi
Transitional Government in accordance with this Law.
(B) Legislation
issued by the federal legislative authority shall supersede any other
legislation issued by any other legislative authority in the event that they
contradict each other, except as provided in Article 54(B).
(C) The laws,
regulations, orders, and directives issued by the Coalition Provisional
Authority pursuant to its authority under international law shall remain in
force until rescinded or amended by legislation duly enacted and having the
force of law.
Article 27.
(A) The Iraqi Armed
Forces shall consist of the active and reserve units, and elements thereof.
The purpose of these forces is the defense of Iraq.
(B) Armed forces and
militias not under the command structure of the Iraqi Transitional
Government are prohibited, except as provided by federal law.
(C) The Iraqi Armed
Forces and its personnel, including military personnel working in the
Ministry of Defense or any offices or organizations subordinate to it, may
not stand for election to political office, campaign for candidates, or
participate in other activities forbidden by Ministry of Defense
regulations. This ban encompasses the activities of the personnel mentioned
above acting in their personal or official capacities. Nothing in this
Article shall infringe upon the right of these personnel to vote in
elections.
(D) The Iraqi
Intelligence Service shall collect information, assess threats to national
security, and advise the Iraqi government. This Service shall be under
civilian control, shall be subject to legislative oversight, and shall
operate pursuant to law and in accordance with recognized principles of
human rights.
(E) The Iraqi
Transitional Government shall respect and implement Iraq’s international
obligations regarding the non-proliferation, non-development,
non-production, and non-use of nuclear, chemical, and biological weapons,
and associated equipment, materiel, technologies, and delivery systems for
use in the development, manufacture, production, and use of such weapons.
Article 28.
(A) Members of the
National Assembly; the Presidency Council; the Council of Ministers,
including the Prime Minister; and judges and justices of the courts may not
be appointed to any other position in or out of government. Any member of
the National Assembly who becomes a member of the Presidency Council or
Council of Ministers shall be deemed to have resigned his membership in the
National Assembly.
(B) In no event may a
member of the armed forces be a member of the National Assembly, minister,
Prime Minister, or member of the Presidency Council unless the individual
has resigned his commission or rank, or retired from duty at least eighteen
months prior to serving.
Article 29.
Upon the assumption of full authority by the
Iraqi Interim Government in accordance with Article 2(B)(1), above, the
Coalition Provisional Authority shall be dissolved and the work of the
Governing Council shall come to an end.
CHAPTER FOUR – THE TRANSITIONAL LEGISLATIVE AUTHORITY
Article 30.
(A)
During the transitional period, the State of Iraq shall have a
legislative authority known as the National Assembly. Its principal mission
shall be to legislate and exercise oversight over the work of the executive
authority.
(B)
Laws shall be issued in the name of the people of Iraq. Laws,
regulations, and directives related to them shall be published in the
official gazette and shall take effect as of the date of their publication,
unless they stipulate otherwise.
(C)
The National Assembly shall be elected in accordance with an
electoral law and a political parties law. The electoral law shall aim to
achieve the goal of having women constitute no less than one-quarter of the
members of the National Assembly and of having fair representation for all
communities in Iraq, including the Turcomans, ChaldoAssyrians, and others.
(D)
Elections for the National Assembly shall take place by 31 December
2004 if possible, and in any case no later than by 31 January 2005.
Article 31.
(A) The
National Assembly shall consist of 275 members. It shall enact a law
dealing with the replacement of its members in the event of resignation,
removal, or death.
(B) A nominee to the
National Assembly must fulfill the following conditions:
(1) He shall be an Iraqi no less than 30 years of
age.
(2) He shall not have been a member of the
dissolved Ba’ath Party with the rank of Division Member or higher, unless
exempted pursuant to the applicable legal rules.
(3) If he was once a member of the dissolved
Ba’ath Party with the rank of Full Member, he shall be required to sign a
document renouncing the Ba’ath Party and disavowing all of his past links
with it before becoming eligible to be a candidate, as well as to swear that
he no longer has any dealings or connection with Ba’ath Party
organizations. If it is established in court that he lied or fabricated on
this score, he shall lose his seat in the National Assembly.
(4) He shall not have been a member of the former
agencies of repression and shall not have contributed to or participated in
the persecution of citizens.
(5) He shall not have enriched himself in an
illegitimate manner at the expense of the homeland and public finance.
(6) He shall not have been convicted of a crime
involving moral turpitude and shall have a good reputation.
(7) He shall have at least a secondary school
diploma, or equivalent
(8) He shall not be a member of the armed forces
at the time of his nomination.
Article 32.
(A) The National
Assembly shall draw up its own internal procedures, and it shall sit in
public session unless circumstances require otherwise, consistent with its
internal procedures. The first session of the Assembly shall be chaired by
its oldest member.
(B) The National
Assembly shall elect, from its own members, a president and two deputy
presidents of the National Assembly. The president of the National Assembly
shall be the individual who receives the greatest number of votes for that
office; the first deputy president the next highest; and the second deputy
president the next. The president of the National Assembly may vote on an
issue, but may not participate in the debates, unless he temporarily steps
out of the chair immediately prior to addressing the issue.
(C) A bill shall not
be voted upon by the National Assembly unless it has been read twice at a
regular session of the Assembly, on condition that at least two days
intervene between the two readings, and after the bill has been placed on
the agenda of the session at least four days prior to the vote.
Article 33.
(A) Meetings of the
National Assembly shall be public, and transcripts of its meetings shall be
recorded and published. The vote of every member of the National Assembly
shall be recorded and made public. Decisions in the National Assembly shall
be taken by simple majority unless this Law stipulates otherwise.
(B) The National
Assembly must examine bills proposed by the Council of Ministers, including
budget bills.
(C) Only the Council
of Ministers shall have the right to present a proposed national budget.
The National Assembly has the right to reallocate proposed spending and to
reduce the total amounts in the general budget. It also has the right to
propose an increase in the overall amount of expenditures to the Council of
Ministers if necessary.
(D) Members of the
National Assembly shall have the right to propose bills, consistent with the
internal procedures that are drawn up by the Assembly.
(E) The Iraqi Armed
Forces may not be dispatched outside Iraq even for the purpose of defending
against foreign aggression except with the approval of the National Assembly
and upon the request of the Presidency Council.
(F) Only the National
Assembly shall have the power to ratify international treaties and
agreements.
(G) The oversight
function performed by the National Assembly and its committees shall include
the right of interpellation of executive officials, including members of the
Presidency Council, the Council of Ministers, including the Prime Minister,
and any less senior official of the executive authority. This shall
encompass the right to investigate, request information, and issue subpoenas
for persons to appear before them.
Article 34.
Each member of the National Assembly shall
enjoy immunity for statements made while the Assembly is in session, and the
member may not be sued before the courts for such. A member may not be
placed under arrest during a session of the National Assembly, unless the
member is accused of a crime and the National Assembly agrees to lift his
immunity or if he is caught in flagrante delicto in the commission of
a felony.
CHAPTER FIVE – THE TRANSITIONAL EXECUTIVE AUTHORITY
Article 35.
The executive authority during the
transitional period shall consist of the Presidency Council, the
Council of Ministers, and its presiding Prime Minister.
Article 36.
(A) The National
Assembly shall elect a President of the State and two Deputies. They shall
form the Presidency Council, the function of which will be to represent the
sovereignty of Iraq and oversee the higher affairs of the country. The
election of the Presidency Council shall take place on the basis of a single
list and by a two-thirds majority of the members’ votes. The National
Assembly has the power to remove any member of the Presidency Council of the
State for incompetence or lack of integrity by a three-fourths majority of
its members’ votes. In the event of a vacancy in the Presidency Council,
the National Assembly shall, by a vote of two-thirds of its members, elect a
replacement to fill the vacancy.
(B) It is a
prerequisite for a member of the Presidency Council to fulfill the same
conditions as the members of the National Assembly, with the following
observations:
(1) He must be at least forty years of age.
(2) He must possess a good reputation, integrity,
and rectitude.
(3) If he was a member of the dissolved Ba’ath
Party, he must have left the dissolved Party at least ten years before its
fall.
(4) He must not have participated in repressing
the intifada of 1991 or the Anfal campaign and must not have
committed a crime against the Iraqi people.
(C) The Presidency
Council shall take its decisions unanimously, and its members may not
deputize others as proxies.
Article 37.
The Presidency Council may veto any
legislation passed by the National Assembly, on condition that this be done
within fifteen days after the Presidency Council is notified by the
president of the National Assembly of the passage of such legislation. In
the event of a veto, the legislation shall be returned to the National
Assembly, which has the right to pass the legislation again by a two-thirds
majority not subject to veto within a period not to exceed thirty days.
Article 38.
(A) The Presidency
Council shall name a Prime Minister unanimously, as well as the members of
the Council of Ministers upon the recommendation of the Prime Minister. The
Prime Minister and Council of Ministers shall then seek to obtain a vote of
confidence by simple majority from the National Assembly prior to commencing
their work as a government. The Presidency Council must agree on a
candidate for the post of Prime Minister within two weeks. In the event
that it fails to do so, the responsibility of naming the Prime Minister
reverts to the National Assembly. In that event, the National Assembly must
confirm the nomination by a two-thirds majority. If the Prime Minister is
unable to nominate his Council of Ministers within one month, the Presidency
Council shall name another Prime Minister.
(B) The
qualifications for Prime Minister must be the same as for the members of the
Presidency Council except that his age must not be less than 35 years upon
his taking office.
Article 39.
(A) The Council of
Ministers shall, with the approval of the Presidency Council, appoint
representatives to negotiate the conclusion of international treaties and
agreements. The Presidency Council shall recommend passage of a law by the
National Assembly to ratify such treaties and agreements.
(B) The Presidency
Council shall carry out the function of commander-in-chief of the Iraqi
Armed Forces only for ceremonial and protocol purposes. It shall have no
command authority. It shall have the right to be briefed, to inquire, and
to advise. Operationally, national command authority on military matters
shall flow from the Prime Minister to the Minister of Defense to the
military chain of command of the Iraqi Armed Forces.
(C) The Presidency
Council shall, as more fully set forth in Chapter Six, below, appoint, upon
recommendation of the Higher Juridical Council, the Presiding Judge and
members of the Federal Supreme Court.
(D) The Council of
Ministers shall appoint the Director-General of the Iraqi National
Intelligence Service, as well as officers of the Iraqi Armed Forces at the
rank of general or above. Such appointments shall be subject to
confirmation by the National Assembly by simple majority of those of its
members present.
Article 40.
(A) The Prime
Minister and the ministers shall be responsible before the National
Assembly, and this Assembly shall have the right to withdraw its confidence
either in the Prime Minister or in the ministers collectively or
individually. In the event that confidence in the Prime Minister is
withdrawn, the entire Council of Ministers shall be dissolved, and Article
40(B), below, shall become operative.
(B) In the event of a
vote of no confidence with respect to the entire Council of Ministers, the
Prime Minister and Council of Ministers shall remain in office to carry out
their functions for a period not to exceed thirty days, until the formation
of a new Council of Ministers, consistent with Article 38, above.
Article 41.
The Prime Minister shall have day-to-day
responsibility for the management of the government, and he may dismiss
ministers with the approval of an simple majority of the National Assembly.
The Presidency Council may, upon the recommendation of the Commission on
Public Integrity after the exercise of due process, dismiss the Prime
Minister or the ministers.
Article 42.
The Council of Ministers shall draw up rules
of procedure for its work and issue the regulations and directives necessary
to enforce the laws. It also has the right to propose bills to the
National Assembly. Each ministry has the right, within its competence, to
nominate deputy ministers, ambassadors, and other employees of special
grade. After the Council of Ministers approves these nominations, they
shall be submitted to the Presidency Council for ratification. All
decisions of the Council of Ministers shall be taken by simple majority of
those of its members present.
CHAPTER SIX – THE FEDERAL JUDICIAL AUTHORITY
Article 43.
(A) The judiciary is
independent, and it shall in no way be administered by the executive
authority, including the Ministry of Justice. The judiciary shall enjoy
exclusive competence to determine the innocence or guilt of the accused
pursuant to law, without interference from the legislative or executive
authorities.
(B) All judges
sitting in their respective courts as of 1 July 2004 will continue in office
thereafter, unless removed from office pursuant to this Law.
(C) The National
Assembly shall establish an independent and adequate budget for the
judiciary.
(D) Federal courts
shall adjudicate matters that arise from the application of federal laws.
The establishment of these courts shall be within the exclusive competence
of the federal government. The establishment of these courts in the regions
shall be in consultation with the presidents of the judicial councils in the
regions, and priority in appointing or transferring judges to these courts
shall be given to judges resident in the region.
Article 44.
(A) A court called
the Federal Supreme Court shall be constituted by law in Iraq.
(B) The jurisdiction
of the Federal Supreme Court shall be as follows:
(1) Original and exclusive jurisdiction in legal
proceedings between the Iraqi Transitional Government and the regional
governments, governorate and municipal administrations, and local
administrations.
(2) Original and exclusive jurisdiction, on the
basis of a complaint from a claimant or a referral from another court, to
review claims that a law, regulation, or directive issued by the federal or
regional governments, the governorate or municipal administrations, or local
administrations is inconsistent with this Law.
(3) Ordinary appellate jurisdiction of the
Federal Supreme Court shall be defined by federal law.
(C) Should the
Federal Supreme Court rule that a challenged law, regulation, directive, or
measure is inconsistent with this Law, it shall be deemed null and void.
(D) The Federal
Supreme Court shall create and publish regulations regarding the procedures
required to bring claims and to permit attorneys to practice before it. It
shall take its decisions by simple majority, except decisions with regard to
the proceedings stipulated in Article 44(B)(1), which must be by a
two-thirds majority. Decisions shall be binding. The Court shall have
full powers to enforce its decisions, including the power to issue citations
for contempt of court and the measures that flow from this.
(E) The Federal
Supreme Court shall consist of nine members. The Higher Juridical Council
shall, in consultation with the regional judicial councils, initially
nominate no less than eighteen and up to twenty-seven individuals to fill
the initial vacancies in the aforementioned Court. It will follow the same
procedure thereafter, nominating three members for each subsequent vacancy
that occurs by reason of death, resignation, or removal. The Presidency
Council shall appoint the members of this Court and name one of them as its
Presiding Judge. In the event an appointment is rejected, the Higher
Juridical Council shall nominate a new group of three candidates.
Article 45.
A Higher Juridical Council shall be
established and assume the role of the Council of Judges. The Higher
Juridical Council shall supervise the federal judiciary and shall administer
its budget. This Council shall be composed of the Presiding Judge of the
Federal Supreme Court, the presiding judge and deputy presiding judges of
the federal Court of Cassation, the presiding judges of the federal Courts
of Appeal, and the presiding judge and two deputy presiding judges of each
regional court of cassation. The Presiding Judge of the Federal Supreme
Court shall preside over the Higher Juridical Council. In his absence, the
presiding judge of the federal Court of Cassation shall preside over the
Council.
Article 46.
(A) The federal
judicial branch shall include existing courts outside the Kurdistan region,
including courts of first instance; the Central Criminal Court of Iraq;
Courts of Appeal; and the Court of Cassation, which shall be the court of
last resort except as provided in Article 44 of this Law. Additional
federal courts may be established by law. The appointment of judges for
these courts shall be made by the Higher Juridical Council. This Law
preserves the qualifications necessary for the appointment of judges, as
defined by law.
(B) The decisions of
regional and local courts, including the courts of the Kurdistan region,
shall be final, but shall be subject to review by the federal judiciary if
they conflict with this Law or any federal law. Procedures for such review
shall be defined by law.
Article 47.
No judge or member of the Higher Juridical
Council may be removed unless he is convicted of a crime involving moral
turpitude or corruption or suffers permanent incapacity. Removal shall be
on the recommendation of the Higher Juridical Council, by a decision of the
Council of Ministers, and with the approval of the Presidency Council.
Removal shall be executed immediately after issuance of this approval. A
judge who has been accused of such a crime as cited above shall be suspended
from his work in the judiciary until such time as the case arising from what
is cited in this Article is adjudicated. No judge may have his salary
reduced or suspended for any reason during his period of service.
CHAPTER SEVEN – THE SPECIAL TRIBUNAL AND NATIONAL
COMMISSIONS
Article 48.
(A) The statute
establishing the Iraqi Special Tribunal issued on 10 December 2003 is
confirmed. That statute exclusively defines its jurisdiction and
procedures, notwithstanding the provisions of this Law.
(B) No other court
shall have jurisdiction to examine cases within the competence of the Iraqi
Special Tribunal, except to the extent provided by its founding statute.
(C) The judges of the
Iraqi Special Tribunal shall be appointed in accordance with the provisions
of its founding statute.
Article 49.
(A) The establishment
of national commissions such as the Commission on Public Integrity, the
Iraqi Property Claims Commission, and the Higher National De-Ba’athification
Commission is confirmed, as is the establishment of commissions formed after
this Law has gone into effect. The members of these national commissions
shall continue to serve after this Law has gone into effect, taking into
account the contents of Article 51, below.
(B) The method of
appointment to the national commissions shall be in accordance with law.
Article 50.
The Iraqi Transitional Government shall
establish a National Commission for Human Rights 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
Commission shall be established in accordance with the Paris Principles
issued by the United Nations on the responsibilities of national
institutions. This Commission shall include an Office of the Ombudsman to
inquire into complaints. This office shall 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.
Article 51.
No member of the Iraqi Special Tribunal or
of any commission established by the federal government may be employed in
any other capacity in or out of government. This prohibition is valid
without limitation, whether it be within the executive, legislative, or
judicial authority of the Iraqi Transitional Government. Members of the
Special Tribunal may, however, suspend their employment in other agencies
while they serve on the aforementioned Tribunal.
CHAPTER EIGHT – REGIONS, GOVERNORATES, AND
MUNICIPALITIES
Article 52.
The design of the federal system in Iraq
shall be established in such a way as to prevent the concentration of power
in the federal government that allowed the continuation of decades of
tyranny and oppression under the previous regime. This system shall
encourage the exercise of local authority by local officials in every region
and governorate, thereby creating a united Iraq in which every citizen
actively participates in governmental affairs, secure in his rights and free
of domination.
Article 53.
(A) The Kurdistan
Regional Government is recognized as the official government of the
territories that were administered by the that government on 19 March 2003
in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and
Neneveh. The term “Kurdistan Regional Government” shall refer to the
Kurdistan National Assembly, the Kurdistan Council of Ministers, and the
regional judicial authority in the Kurdistan region.
(B) The boundaries of
the eighteen governorates shall remain without change during the
transitional period.
(C) Any group of no
more than three governorates outside the Kurdistan region, with the
exception of Baghdad and Kirkuk, shall have the right to form regions from
amongst themselves. The mechanisms for forming such regions may be proposed
by the Iraqi Interim Government, and shall be presented and considered by
the elected National Assembly for enactment into law. In addition to being
approved by the National Assembly, any legislation proposing the formation
of a particular region must be approved in a referendum of the people of the
relevant governorates.
(D) This Law shall
guarantee the administrative, cultural, and political rights of the
Turcomans, ChaldoAssyrians, and all other citizens.
Article 54.
(A) The Kurdistan
Regional Government shall continue to perform its current functions
throughout the transitional period, except with regard to those issues which
fall within the exclusive competence of the federal government as specified
in this Law. Financing for these functions shall come from the federal
government, consistent with current practice and in accordance with Article
25(E) of this Law. The Kurdistan Regional Government shall retain regional
control over police forces and internal security, and it will have the right
to impose taxes and fees within the Kurdistan region.
(B) With regard to
the application of federal laws in the Kurdistan region, the Kurdistan
National Assembly shall be permitted to amend the application of any such
law within the Kurdistan region, but only to the extent that this relates to
matters that are not within the provisions of Articles 25 and 43(D) of this
Law and that fall within the exclusive competence of the federal government.
Article 55.
(A) Each governorate
shall have the right to form a Governorate Council, name a Governor, and
form municipal and local councils. No member of any regional government,
governor, or member of any governorate, municipal, or local council may be
dismissed by the federal government or any official thereof, except upon
conviction of a crime by a court of competent jurisdiction as provided by
law. No regional government may dismiss a Governor or member or members of
any governorate, municipal, or local council. No Governor or member of any
Governorate, municipal, or local council shall be subject to the control of
the federal government except to the extent that the matter relates to the
competences set forth in Article 25 and 43(D), above.
(B) Each Governor and
member of each Governorate Council who holds office as of 1 July 2004, in
accordance with the law on local government that shall be issued, shall
remain in place until such time as free, direct, and full elections,
conducted pursuant to law, are held, or, unless, prior to that time, he
voluntarily gives up his position, is removed upon his conviction for a
crime involving moral turpitude or related to corruption, or upon being
stricken with permanent incapacity, or is dismissed in accordance with the
law cited above. When a governor, mayor, or member of a council is
dismissed, the relevant council may receive applications from any eligible
resident of the governorate to fill the position. Eligibility requirements
shall be the same as those set forth in Article 31 for membership in the
National Assembly. The new candidate must receive a majority vote of the
council to assume the vacant seat.
Article 56.
(A) The Governorate
Councils shall assist the federal government in the coordination of federal
ministry operations within the governorate, including the review of annual
ministry plans and budgets with regard to activities in the governorate.
Governorate Councils shall be funded from the general budget of the State,
and these Councils shall also have the authority to increase their revenues
independently by imposing taxes and fees; to organize the operations of the
Governorate administration; to initiate and implement province-level
projects alone or in partnership with international, and non-governmental
organizations; and to conduct other activities insofar as is consistent with
federal laws.
(B) The Qada’
and Nahiya councils and other relevant councils shall assist in the
performance of federal responsibilities and the delivery of public services
by reviewing local ministry plans in the afore-mentioned places; ensuring
that they respond properly to local needs and interests; identifying local
budgetary requirements through the national budgeting procedures; and
collecting and retaining local revenues, taxes, and fees; organizing the
operations of the local administration; initiating and implementing local
projects alone or in conjunction with international, and non-governmental
organizations; and conducting other activities consistent with applicable
law.
(C) Where
practicable, the federal government shall take measures to devolve
additional functions to local, governorate, and regional administrations, in
a methodical way. Regional units and governorate administrations, including
the Kurdistan Regional Government, shall be organized on the basis of the
principle of de-centralization and the devolution of authorities to
municipal and local governments.
Article 57.
(A) All authorities not
exclusively reserved to the Iraqi Transitional Government may be exercised
by the regional governments and governorates as soon as possible following
the establishment of appropriate governmental institutions.
(B) Elections for
governorate councils throughout Iraq and for the Kurdistan National Assembly
shall be held at the same time as the elections for the National Assembly,
no later than 31 January 2005.
Article 58.
(A) The Iraqi
Transitional Government, and especially the Iraqi Property Claims Commission
and other relevant bodies, shall act expeditiously to take measures to
remedy the injustice caused by the previous regime’s practices in altering
the demographic character of certain regions, including Kirkuk, by deporting
and expelling individuals from their places of residence, forcing migration
in and out of the region, settling individuals alien to the region,
depriving the inhabitants of work, and correcting nationality. To remedy
this injustice, the Iraqi Transitional Government shall take the following
steps:
(1) With regard to residents who were deported,
expelled, or who emigrated; it shall, in accordance with the statute of the
Iraqi Property Claims Commission and other measures within the law, within a
reasonable period of time, restore the residents to their homes and
property, or, where this is unfeasible, shall provide just compensation.
(2) With regard to the individuals newly
introduced to specific regions and territories, it shall act in accordance
with Article 10 of the Iraqi Property Claims Commission statute to ensure
that such individuals may be resettled, may receive compensation from the
state, may receive new land from the state near their residence in the
governorate from which they came, or may receive compensation for the cost
of moving to such areas.
(3) With regard to persons deprived of employment
or other means of support in order to force migration out of their regions
and territories, it shall promote new employment opportunities in the
regions and territories.
(4) With regard to nationality correction, it
shall repeal all relevant decrees and shall permit affected persons the
right to determine their own national identity and ethnic affiliation free
from coercion and duress.
(B) The previous
regime also manipulated and changed administrative boundaries for political
ends. The Presidency Council of the Iraqi Transitional Government shall
make recommendations to the National Assembly on remedying these unjust
changes in the permanent constitution. In the event the Presidency Council
is unable to agree unanimously on a set of recommendations, it shall
unanimously appoint a neutral arbitrator to examine the issue and make
recommendations. In the event the Presidency Council is unable to agree on
an arbitrator, it shall request the Secretary General of the United Nations
to appoint a distinguished international person to be the arbitrator.
(C) The permanent
resolution of disputed territories, including Kirkuk, shall be deferred
until after these measures are completed, a fair and transparent census has
been conducted and the permanent constitution has been ratified This
resolution shall be consistent with the principle of justice, taking into
account the will of the people of those territories.
CHAPTER NINE – THE TRANSITIONAL PERIOD
Article 59.
(A)
The permanent constitution shall contain guarantees to ensure that
the Iraqi Armed Forces are never again used to terrorize or oppress the
people of Iraq.
(B)
Consistent with Iraq’s status as a sovereign state, and with its
desire to join other nations in helping to maintain peace and security and
fight terrorism during the transitional period, the Iraqi Armed Forces will
be a principal partner in the multi-national force operating in Iraq under
unified command pursuant to the provisions of United Nations Security
Council Resolution 1511 (2003) and any subsequent relevant resolutions.
This arrangement shall last until the ratification of a permanent
constitution and the election of a new government pursuant to that new
constitution.
(C)
Upon its assumption of authority, and consistent with Iraq’s status
as a sovereign state, the elected Iraqi Transitional Government shall have
the authority to conclude binding international agreements regarding the
activities of the multi-national force operating in Iraq under unified
command pursuant to the terms of United Nations Security Council Resolution
1511 (2003), and any subsequent relevant United Nations Security Council
resolutions. Nothing in this Law shall affect rights and obligations under
these agreements, or under United Nations Security Council Resolution 1511
(2003), and any subsequent relevant United Nations Security Council
resolutions, which will govern the multi-national force’s activities pending
the entry into force of these agreements.
Article 60.
The National Assembly shall write a draft of
the permanent constitution of Iraq. This Assembly shall carry out this
responsibility in part by encouraging debate on the constitution through
regular general public meetings in all parts of Iraq and through the media,
and receiving proposals from the citizens of Iraq as it writes the
constitution.
Article 61.
(A) The National
Assembly shall write the draft of the permanent constitution by no later
than 15 August 2005.
(B) The draft
permanent constitution shall be presented to the Iraqi people for approval
in a general referendum to be held no later than 15 October 2005. In the
period leading up to the referendum, the draft constitution shall be
published and widely distributed to encourage a public debate about it among
the people.
(C) The general
referendum will be successful and the draft constitution ratified if a
majority of the voters in Iraq approve and if two-thirds of the voters in
three or more governorates do not reject it.
(D) If the permanent
constitution is approved in the referendum, elections for a permanent
government shall be held no later than 15 December 2005 and the new
government shall assume office no later than 31 December 2005.
(E) If the referendum
rejects the draft permanent constitution, the National Assembly shall be
dissolved. Elections for a new National Assembly shall be held no later
than 15 December 2005. The new National Assembly and new Iraqi Transitional
Government shall then assume office no later than 31 December 2005, and
shall continue to operate under this Law, except that the final deadlines
for preparing a new draft may be changed to make it possible to draft a
permanent constitution within a period not to exceed one year. The new
National Assembly shall be entrusted with writing another draft permanent
constitution.
(F) If necessary, the
president of the National Assembly, with the agreement of a majority of the
members’ votes, may certify to the Presidency Council no later than 1 August
2005 that there is a need for additional time to complete the writing of the
draft constitution. The Presidency Council shall then extend the deadline
for writing the draft constitution for only six months. This deadline may
not be extended again.
(G) If the National
Assembly does not complete writing the draft permanent constitution by 15
August 2005 and does not request extension of the deadline in Article 61(D)
above, the provisions of Article 61(E), above, shall be applied.
Article 62.
This law shall remain in
effect until the permanent constitution is issued and the new Iraqi
government is formed in accordance with it.
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