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Unresolved Questions in the Bill of Rights of the New

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Unresolved Questions in the Bill of Rights of the New \\server05\productn\F\FIN\30-1\FIN106.txt unknown Seq: 1 7-NOV-06 14:24 UNRESOLVED QUESTIONS IN THE BILL OF RIGHTS OF THE NEW IRAQI CONSTITUTION: HOW WILL THE CLASH BETWEEN “HUMAN RIGHTS” AND “ISLAMIC LAW” BE RECONCILED IN FUTURE LEGISLATIVE ENACTMENTS AND JUDICIAL INTERPRETATIONS? Mohamed Y. Mattar* INTRODUCTION The new Iraqi Constitution (“Iraqi Constitution”) recog- nizes the concept of “human rights”1 in accordance with Iraq’s international obligations,2 establishes an independent “Supreme * Mohamed Y. Mattar is Adjunct Professor of Law and Executive Director of The Protection Project at the Johns Hopkins University School of Advanced International Studies. Mattar received his LL.B. from the Alexandria University Faculty of Law, his M.C.L. from the University of Miami School of Law, and his LL.M. and S.J.D. from Tulane University School of Law. The Protection Project conducted a capacity building program in Iraq on “Preparing Iraqi Women as Leaders, Advocates and Participants in the Political Process” during 2004-2006. 1. Few references to “human rights” are made in Arab or Islamic constitutions. See, e.g., CONSTITUTION OF AFGHANISTAN 1382 [2004] art. 6 (“The State is obliged to create a prosperous and progressive society based on social justice, protection of human dignity, protection of human rights”); CONSTITUTION OF THE PEOPLE’S DEMOCRATIC REPUBLIC OF ALGERIA 1996 art. 32 (“The fundamental human and citizen’s rights and liberties are guaranteed”); CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT 1400 [1980] art. 53 (“The right to political asylum shall be granted by the State to every foreigner persecuted for defending the people’s interests, human rights, peace or justice”); THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF IRAN 1368 [1989] art. 14 (“[T]he government of the Is- lamic Republic of Iran and all Muslims are duty-bound to treat non-Muslims in con- formity with ethical norms and the principles of Islamic justice and equity, and to re- spect their human rights”); CONSTITUTION OF THE STATE OF PALESTINE [Third Draft] 2003 art. 20 (“Human rights and liberties are binding and must be respected”); CONSTI- TUTION OF THE TUNISIAN REPUBLIC 1959 art. 5 (“The Republic of Tunisia shall guarantee fundamental freedoms and human rights in their universality, comprehensiveness, complimentarily and independence”); CONSTITUTION OF THE REPUBLIC OF YEMEN 1994 art. 6 (“The Republic of Yemen confirms its adherence to the United Nations Charter, the Universal Declaration of Human Rights, the Charter of the Arab League, and dogma of international law which are generally recognized”). See also SAUDI ARABIA BA- SIC LAW OF GOVERNMENT 1412 [1992] art. 26 (“The state protects human rights in accor- dance with the Islamic Shari’ah”). 2. CONST. IRAQ art. 8. “Iraq shall observe the principles of food neighborliness. and respect its international obligations.” Article 44 of an earlier draft provided that, “[a]ll individuals have the right to enjoy the rights stated in international human rights 601 \\server05\productn\F\FIN\30-1\FIN106.txt unknown Seq: 2 7-NOV-06 14:24 602 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 24:601 Commission for Human Rights,”3 limits the work of governmen- tal intelligence agencies in accordance with human rights,4 and prohibits tribal customs that contradict human rights.5 At the same time, the Constitution makes some references to Islamic Shari’ah: it establishes Islam as the official religion of the State,6 recognizes Islam as a source of legislation,7 recognizes Iraq as a part of the Muslim world,8 guarantees the Islamic identity of its majority,9 allows Iraqis to choose their personal status law ac- cording to Islamic Law,10 and requires that the Federal Supreme Court contain jurists of Islamic Law.11 Are the provisions on “human rights” and “Islamic Law” compatible? This article en- deavors to answer this question by briefly examining the various provisions of the Iraqi Constitution that cover the rights of the Iraqi people. I. A LIST OF THE CONSTITUTIONAL RIGHTS AND A POSITIVE ROLE OF THE IRAQI GOVERNMENT In Section Two,12 the Constitution13 enumerates various rights to which the Iraqi people are entitled. These rights are agreements and treaties endorsed by Iraq that don’t run contrary to the principles and rules of this convention.” DRAFT CONSTITUTION OF IRAQ [Associated Press trans.] art. 44. Article 44 must be interpreted in light of Article 5(2) of the International Covenant on Economic, Social and Cultural Rights (“ICESR”), which provides: No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent. G.A. Res. 2200A, art. 5(2), 21 U.N.GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966), [hereinafter ICESCR], available at http://www.unhchr.ch/html/ menu3/b/a_cescr.htm. Unfortunately, this explicit recognition of rights of Iraqis in accordance with international human rights law was deleted in the final draft. 3. CONST. IRAQ art. 102. 4. See id. art. 9. 5. See id. art. 45. 6. See id. art. 2. 7. See id. 8. See id. art. 30. 9. See id. art. 2. 10. See id. art. 41. 11. See id. art. 90. 12. The Constitution contains a Preamble and six Sections. Section 1 states the “Fundamental Principles;” Section 2 covers “Rights and Liberties;” Section 3 is devoted to “The Federal Governments;” Section 4 addresses “Powers of the Federal Govern- ments;” Section 5 defines the “Power of the Regions;” and Section 6 contains “Final and Transitional Provisions.” 13. For a discussion of the Constitutional history of Iraq, see Nathan J. Brown, \\server05\productn\F\FIN\30-1\FIN106.txt unknown Seq: 3 7-NOV-06 14:24 2000] UNRESOLVED QUESTIONS IN IRAQI BILL OF RIGHTS 603 divided into two parts: Part One of the Section is divided into “[c]ivil and political rights” and “[e]conomic, social and cultural rights;” Part Two makes reference to several freedoms that are likewise to be protected under the Constitution.14 The Civil and Political rights are: (1) the right to equality before the law;15 (2) the right to equal opportunity;16 (3) the right to life;17 (4) the right to privacy;18 (5) the right to national- ity;19 (6) the right to access to justice;20 (7) the right to political participation;21 (8) the right to freedom from inhuman treat- ment;22 (9) the right to freedom of religion;23 (10) the right to freedom from political and religious coercion;24 (11) the right to be free from slavery;25 (12) the right to freedom of speech;26 (13) the right to assembly;27 (14) the right to freedom of move- ment;28 and (15) the right to asylum for a non-Iraqi.29 The economic, social, and, cultural rights are: (1) the right Constitutionalism, Authoritarianism, and Imperialism in Iraq, 53 DRAKE L. REV. 923, 925-31 (2005). 14. While Section 2 is the main section that covers “Rights and Liberties,” other sections must also be consulted in defining these rights and liberties. In addition, al- though the Constitution distinguishes between rights and liberties, they are used here interchangeably. Compare CONST. IRAQ arts. 14-34 (enumerating “Rights”) with id. arts. 35-45 (enumerating “Liberties”). 15. Id. art. 14. 16. Id. art. 16. This is not limited to employment, as the case under Article 7(c) of the ICESCR. ICESCR, art. 7(c), supra note 2. 17. Id. art. 15. 18. Id. art. 17 (providing right to residential privacy), 40 (guaranteeing communi- cation privacy). 19. Id. art. 18. 20. Id. art. 19. Article 19 includes the right to trial, the right to defense, the right to an attorney, and the right to due process. It is noted that Article 132 provides for the principle of compensation for political prisoners and families of martyrs. Id. art. 142. 21. Id. arts. 20, 39. Article 39 is based on Article 1 of the International Covenant on Civil and Political Rights (“ICCPR”), which provides that, “all peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” G.A. Res. 2200A, art. 1, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966), [herein- after ICCPR], available at http://www.ohchr.org/english/law/ccpr.htm. 22. CONST. IRAQ art. 35. 23. Id. arts. 41, 43. 24. Id. art. 37. 25. Id. 26. Id. arts. 38, 42. 27. Id. art. 38. 28. Id. art. 44. 29. Id. art. 21. \\server05\productn\F\FIN\30-1\FIN106.txt unknown Seq: 4 7-NOV-06 14:24 604 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 24:601 to work;30 (2) the right to form unions;31 (3) the right to private property;32 (4) the right to free trade;33 (5) the right to raise a family;34 (6) the right to social security;35 (7) the right to health;36 (8) the right to environment;37 and (9) the right to education.38 Consequently, the government, according to the Iraqi Con- stitution, is not only bound not to interfere with any constitu- tional right; it also assumes a “positive” role in providing the ba- sic needs of the Iraqi people, including work, social security, health care, and education.39 A. Equality Before the Law and Equality in Political Participation Women’s rights are specifically addressed in two main arti- cles.40 Article 14 provides for the principle of equality before the law and prohibits discrimination on the basis of sex.41 Article 20 provides for the principle of equality in political participation; it grants all citizens of Iraq, whether males or females, the right to political participation, including the right to vote and the right to be elected.42 30.
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