This current draft—like the earlier one—is still very much a work in progress. There are someThis current draft—like the earlier one—is still very much a work in progress. There are some editorial errors in the text (such as a spliced sentence and an incorrect date) and some repetition.
Public comments by Commission members indicate that the process of technical review has not yet begun. Therefore this document should be regarded as an indication of the subcommittee’s inclinations, but significant changes are still possible.
The various subcommittees will each complete a section of the draft; an additional subcommittee is working to coordinate among the groups. Thus, this draft bill of rights is not only rough but also preliminary: it has not yet been formally approved by the Commission.
General observations on the draft
Numerous Iraqis connected with the drafting process have suggested that the constitution will replicate the basic structures created by the Transitional Administrative Law (or TAL, the interim constitution written before the dissolution of the American-led Coalition Provisional Authority last year). There are some indications (in the provisions on federalism and the parliament) that this will indeed be the case. Yet the draft bill of rights
is clearly not based on the TAL (while it does borrow some elements).
The document makes very extensive welfare commitments. This is not unusual in more recent constitutions, but it is a marked departure from the TAL. In contrast to the earlier draft published in al-Mada, however, this draft makes fewer promises and acknowledges the fiscal limitations of the state.
While the rights provisions are extensive, there are actually significant qualifications. Sometimes these relate to religion, morals, and values. This gives the document a very conservative flavor.
More often qualifications on rights occur in implementing legislation. European constitutions introduced phrasing that suggested that freedoms be defined by law. The original purpose of such provisions was to ensure that only parliament (as the agent of the entire society) would define the way in which a right would operate. This took the task out of the hands of the monarch and the executive and placed it in the hands of those
deputized by the nation. But over time it has become clear that defining a right might also mean limiting it. This could occur anywhere but seems especially likely in countries in which the parliament falls under executive domination. In such cases, rights might almost be defined out of existence. Indeed, this is the pattern in much of the Arab world. The drafting committee in Iraq has indicated that it is writing a more parliamentary document,
which might diminish but certainly cannot eliminate the possibility of rights being deprived out of their meaning by implementing legislation. Some countries have attempted to forestall such a possibility by including a constitutional provision that implementing legislation cannot limit the essence of a right. No such provision is
