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A collective Head of State: Iraq opts for three presidents Print E-mail
Written by Professor David Flint AM   
Friday, 23 April 2004

While ACM obviously has no policy about the way other countries govern themselves, or on the legality and propriety of the war, recent constitutional developments in Iraq may be of some interest to our readers.

This is particularly so at a time when the Leader of the Opposition has decided on an extremely tight timetable in his attempt to turn Australia into a republic-any republic it seems.

Indeed the timetable is so tight some republicans fear it is doomed to failure.

And as Mike Stetekee observes in the Weekend Australian,24-25 April, 2004, the price of a failure a second time will be even greater than in 1999. If you are interested in what is being proposed in Iraq, and you have the time ,you may to wish read the backgrounder below.

Until next time,

 David Flint. . 

BACKGROUNDER: IRAQI INTERIM CONSTITUTION

The most liberal and democratic states in the Arab world today are probably Jordan and Morocco. Both are monarchies which are well on the way to emulating our Westminster model.

 Readers may recall that we had previously suggested that the constitution in force until 1958-when Iraq was a democracy of sorts-could be revived. That constitution, which dates from 1925, although not ideal, provided the context for a democratic government.

Moreover, Iraqis had never abandoned it. As Najdat Fathi Safwat observed in the Beirut based newspaper, Dar al hayat (17 June 2003), under it Iraq had enjoyed one of the most honest and efficient public services in the Arab world with a strong and prosperous economy.

No one, not even the King or the Prime Minister, could spend public funds without lawful authority. The Iraqis enjoyed freedom of speech and the press had considerable freedom. We suggested that it was not unreasonable to argue that it was still Iraq’s constitution.

 There had been no legal or moral justification for the bloodthirsty coup staged deceitfully by an army commander in 1958. He murdered not only the ruler but as many of his family, men, women and children whom he was able to lure into a truce.

Their dismembered bodies were dragged through the streets. A dictatorship was imposed, the regime only changing when the despots fell out among themselves and murdered one another.

The people had no choice in any of this, and the constitution was never properly changed nor revoked.

 Rather than trying to reinvent the wheel, it would have been easier to revive that constiution. It provided for an elected lower house, and a nominated Senate, as in Canada. This could have been used to ensure a federal balance between the three likely provinces. Government was ensured under the Westminster system.

 There was even provision for an interim constitutional Head of State - the Constitution envisaged a regency. The regent would, for reasons of history and legitimacy, have to have been from the Hashemites, the ancient family which provided the Guardians of the two Shrines, Mecca and Medina, until Ibn Saud drove them out and declared himself King. One branch still reigns in Jordan.

We proposed that the most likely interim Head of State, both in terms of lineage and temperament, seems to be the highly regarded Ali Bin al-Husayn, a successful London banker. Then a small child, he was smuggled out to Egypt at the time of the 1968 massacre which ushered in a series of appalling dictatorships culminating in that of Saddam Hussein. Ali Bin al-Husayn argues that his legitimacy as anything more than an interim Head could only come in a referendum.We said that as the pieces are already there, why waste time, when a viable Constitution already exists?

But this was not to be. The provisional Iraqi constitution adopted by the Governing Council on 8 March 2004 has established a parliamentary republic.

Formally known as The Law of Administration of the State of Iraq for the Transitional Period, it specifies the system of government to be republican, federal, democratic and pluralist. Islam is the official religion.

But after the transitional period which should end by 31 January 2004, and which must definitely end by 31 January 2005, it would still be open to Iraq to revert to the best features of the 1925 Constitution. This will be so if a rather unusual, but not unknown institution, a collective presidency, creates difficulties and tensions.

It is hard to see why three politicians will be better than a regent who would be committed to playing a constiutional role. Think of how successful the King has been in Spain,including the successful resistance to a military coup which has earned him the plaudits of almost all across the democratic political spectrum.

The full text of Iraq's interim constiution can be found can be found at http://www.oefre.unibe.ch/law/icl/iz00000_.html

For those who do not want to read the whole Constitution, but are curious as to the collective Head of State, a summary of the relevant clauses on the Presidency Council follows.

 he constitution provides that the executive authority during the transitional period shall consist of the Presidency Council, the Council of Ministers, and its presiding Prime Minister (Article 35).

The National Assembly is to elect a President of the State and two Deputies. (Article 36) They are to 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 is to 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. The members of the Presidency Council must be least forty years of age. The Presidency Council is to take its decisions unanimously, and its members may not deputize others as proxies. It may veto any legislation passed by the National Assembly, on condition that this be done within fifteen days of notification of the passage of such legislation. In the event of a veto, the legislation is to 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 37)

Under Article 38, the Presidency Council is to 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 are then required to 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.

The Presidency Council is to 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. (Article 39)

The Presidency Council is also to appoint, upon recommendation of the Higher Juridical Council, the Presiding Judge and members of the Federal Supreme Court. The Council of Ministers is also to 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 are to be subject to confirmation by the National Assembly by simple majority of those of its members present.

 Under Article 40 the Prime Minister and the ministers are to be responsible before the National Assembly, the Assembly having the right to withdraw its confidence either in the Prime Minister or in the ministers collectively or individually

 
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