Transitional Administrative Law (Iraq)
The Law of Administration for the State of Iraq for the Transitional Period (
The TAL was principally drafted by a ten-man committee appointed by the Bush Administration with advice from the United States and United Nations personnel.
Preamble and articles
The preamble begins:
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.
And contains further,
...affirming today their respect for international law, ... working to reclaim their legitimate place among nations,... have endeavored at the same time to preserve the unity of their homeland.
Article 2 provides for an Annex to this document, which was issued by the interim Governing Council on 1 June 2004, before the beginning of the transitional period. The Annex forms an integral part of this Law, and for the most part clarifies aspects of the transitional and interim administration.
Rights
Supporters lauded the constitution's guarantees of "fundamental rights":
- equality before the law (Article 12), guaranteeing the equality of all without regard to "gender, sect, opinion, belief, nationality, religion, or origin";
- freedom of religion, though Islam is stated as the state's official religion and is to be considered a source of legislation;
- freedom of speech;
- freedom of the press;
- right to privacy;
- right to a "fair, speedy, and open trial" for all accused of crimes;
- no unlawful arrest or detention;
- torture and cruel and unusual punishment are banned "under all circumstances";
- right to private property is protected.
A lengthy provision emphasizes that police, investigators, or other governmental authorities may not violate the "sanctity of private residences."
Iraqis are also guaranteed the right to "education, health care, and social security." The right to possess, bear, buy, or sell arms is subject to "licensure issued in accordance with the law."
The
Part of the Law of Administration's explicit rejection of Iraq's former racist policy (also explicitly referenced) is embodied in the wording "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."
The Law stipulates that both
Political structure
The constitution provides for a transitional
The government under the Transitional Law is a democratic republic, with three separate branches of government.
The elected National Assembly is a
The Assembly also elected a President of State who along with two deputies formed a Presidency Council to "represent the sovereignty of Iraq and oversee the higher affairs of the country." The council represents the executive branch of government and has the right to veto laws passed by the Assembly. The Assembly can then over-rule the Council with a two-thirds majority vote.
The Presidency Council appoints the
Transitional period
The Transitional Administrative Law spelled out the steps to be taken after the transfer of sovereignty to the writing and enactment of a permanent constitution.
Article 2 stated that elections for the National Assembly should take place no later than January 31, 2005.
Article 61 stated that the Assembly should write a permanent constitution by no later than 15 August 2005. The draft permanent constitution would be presented in a referendum to the Iraqi people by 15 October 2005.
According to the TAL, the permanent constitution would be adopted if a majority of Iraqi voters approve it, and no more than 2/3 of the voters in any three governorates disapprove it. This provision was criticized by
Article 61 also provided for an extension to the constitution drafting process for up to six months. If the constitution were to be rejected or if the National Assembly failed to come to agreement, the National Assembly was to be dissolved and new elections were to be held.
Judiciary
Local court justices are appointed by local governments and their "juridical councils", the
The constitution also establishes several "National Commissions" to investigate and address recent concerns such as human rights and war crimes.
Kurdistan and local government
The transitional constitution recognizes the current government of Iraqi Kurdistan as the legitimate government of the Kurds, and allows it to continue to exist within the new federal state.
Iraq elected Governors and Governorate councils for each of its 18 governorates, as well as elected mayors and city councils for each city. Elections were held at the same time as National Assembly elections.
Role of Shariah
- "Islam is the official religion of the State and is to be considered a source of legislation." But decisions according to Shariah may not abrogate articles or guarantees:
- "Any legal provision that conflicts with this Law is null and void." Thus the Law of Administration circumscribes Shariah.
De-Ba'athification
Former Ba'ath Party members who want to run for office are required to sign documents explicitly denouncing the party and denying they possess any continuing ties to the organization or its principles.
Revenue from oil
The natural resources of Iraq are explicitly declared to belong to all the people of all the regions and governorates of Iraq. Their management is required to involve consultation with the governments of the regions and the administrations of the governorates. Revenue resulting from their sale through the national budget is required to be distributed 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."
Enforcement of Coalition-created laws
Section A of Article 26 of the Law of Administration reads:
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.
This appears to permit the Transitional Government to modify coalition legislation or parts of the Law of Administration "by a three-fourths majority of the members of the National Assembly and the unanimous approval of the Presidency Council". The Transitional Government, however, may not change the transitional period or remove human rights, nor may they delay the next elections by more than six months.
Significantly, the elected Transitional Government is not bound by the clause in the Annex to the Law of Administration which prevented the appointed Interim Government from "taking any actions affecting Iraq's destiny beyond the limited interim period".
References
- ISBN 978-0-7432-7389-3.