A Comprehensive Bill of Rights in the New Iraqi Constitution:
Time for an Educational Initiative, a Legislative Process and Judicial Interpretation
Mohamed Mattar
Adjunct Professor of Law and Executive Director
The Protection Project at The Johns Hopkins University School of Advanced
International Studies
In Chapter 2,1 the new Iraqi constitution provides for various rights that the Iraqi
people are to be entitled to. These rights are divided in Part 1 of the Chapter into Civil
and Political Rights and Economic, Social and Cultural Rights, while Part 2 makes
references to several freedoms that are likewise to be protected under the constitution.2
The Civil and Political Rights included under the new Iraqi constitution are: 1) the
right to equality before the law (article 14); 2) the right to equal opportunity (article 16);
3) the right to life (article 15); 4) the right to privacy (article 17 and article 38); 5) the
right to nationality (article 18); 6) the right to access to justice3 (article 19); 7) the right to
political participation (article 20 and article 37); 8) the right to freedom from inhuman
treatment (article 35); 9) the right to freedom of religion (article 39 and article 40); 10)
the right to freedom from political and religious coercion (article 35); 11) the right to be
free from slavery (article 35); 12) the right to freedom of speech (article 36 and article
41); 13) the right to assembly (article 36); 14) the right to freedom of movement (article
42); and 15) the right to asylum for a non-Iraqi (article 21).
The Economic, Social and Cultural Rights included under the new Iraqi
constitution are: 1) the right to work (article 22); 2) the right to form unions (article 22);
3) the right to private property4 (article 23); 4) the right to free trade (article 24); 5) the
right to raise a family (article 29); 6) the right to social security (article 30); 7) the right to
health (article 31); 8) the right to environment (article 33); and 9) the right to education
(article 34).
Women’s rights are specifically addressed in two main articles. Article 14
provides for the principle of equality before the law and prohibits discrimination on the
basis of sex.5 Article 20 provides for the principle of equality in political participation,
and grants all citizens of Iraq, whether males or females, the right to political
The Constitution contains a Preamble and six Chapters. Chapter 1 states the “Basic Principles”; Chapter 2
covers “Rights and Freedoms”; Chapter 3 is devoted to “The Federal Authorities”; Chapter 4 addresses
“Powers of the Federal Authorities”; Chapter 5 talks about “Authorities of the Regions”; and Chapter six
contains “Final and Transitional Guidelines”.
2
While Chapter 2 is the main chapter that covers “Rights and Freedoms”, other chapters must also be
consulted in defining these rights and freedoms. In addition, although the constitution distinguishes
between rights and freedom, they are used here interchangeably.
3
This includes under Article 19 right to trial, right to defense, right to attorney, and right to due process. It
is noted that article 142 provides for the principle of compensation for political prisoners and families of
martyrs.
4
Article 27 makes the protection of public property the duty of every citizen.
5
Similar provisions are found in the constitutions of Egypt (article 40), Libya (article 5), Morocco, (article
5), Oman (article 17), Tunisia (article 6), Algeria (article 29).
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participation, including the right to vote and the right to be elected. Women will
constitute, under article 151, at least 25% of the seats in the Council of Representatives.6
This quota is designed to prevent in Iraq the under-representation or lack of
representation of women in parliamentary bodies that is evident in many Arab and
Muslim countries. For instance, women are not represented at all in the parliaments of
Kuwait, Saudi Arabia, and the United Arab Emirates. Women represent less than 5% of
the parliaments of Egypt, Iran, Lebanon, Mauritania, Turkey, and Yemen, and less than
10% in Algeria, Jordan, Oman, and Somalia.7 Consequently, the quota system of the Iraqi
constitution is a significant model of enhancing women’s participation in the political
process, although it is limited to participation in the parliament. It remains to be seen how
women will be represented in other branches of the Iraqi government.
For the first time, with article 35 of the new Iraqi constitution, an Arab constitution
explicitly prohibits “trade in women or children” and the “sex trade.” 8 Article 35 states
that “Forced labor, slavery and the slave trade is forbidden, as is the trade in women and
children or the sex trade.”9 The U.S. Department of State has previously stated that “As
Iraq moves forward on the path to democracy and builds its internal security,
administration, and infrastructure, the government should develop and integrate
mechanisms for combating trafficking.” Article 35 marks a significant step in this
direction.
The constitution also provides for the family as the basis of society10 and imposes
an obligation on the state to protect “motherhood”11 and prohibits all forms of violence
and abuse in the family.12 In addition, the constitution makes it an obligation upon the
state to guarantee for the individual and the family, especially women, social security and
Article 48 states: “The Council of Representatives is made up of a number of members at a proportion of
one seat for every 100,000 people from the population of Iraq.”
7
Women representation is relatively higher in Tunisia (23%), Pakistan (21%), Bangladesh (20%), Bahrain
(15%), Syria (12%), and Sudan (10%)
8
Article 35.
9
The word trafficking is translated into the Arabic language as “trade.” Traditionally, Arab and Moslem
constitutions prohibited “forced labor” or “slavery”. For instance, the Constitution of Jordan provides that
"compulsory labour may not be imposed on any person." (art. 13-1, stating that compulsory labor may be
imposed on a person in a state of necessity or as a result of conviction by a court of law). The Constitution
of the United Arab Emirates states that "no person shall be enslaved." (art. 34/3). The Constitution of
Afghanistan provides that “forced labor is forbidden.” (Article 49). Iran’s Constitution states that Iranians
should have the right to choose freely an occupation and that every citizen should refrain “from compelling
anyone to engage in a particular job.” (Article 43). Similarly, the Constitution of Oman states that “Every
citizen has the right to engage in the work of his choice within the limits of the Law. It is not permitted to
impose any compulsory work on anyone […]” (Article 12). The Constitution of Kuwait also prohibits
forced labor, “except in the cases specified by law for national emergency and with just
remuneration.”(Article 42). The Pakistani Constitution prohibits slavery, all forms of forced labor and
traffic in human beings (Article 11). The Palestinian Constitution prohibits slave labor (Article 53) and the
Constitution of Sudan states that “Everyone shall be free and no one shall be held in slavery or servitude or
degraded or tortured.”(Article 20).
10
Article 29 First (a).
11
Article 29 First (b).
12
Article 29 Fourth.
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medical care, and the essential means for living, including housing and appropriate
salary.13
Also for the first time, an Arab constitution imposes an explicit obligation on the
state to “strengthen the role of civil society.”14 Traditionally, Arab and Islamic
constitutions made references only to the right to assembly and the formation of
associations.15 This new constitutional provision is very significant, especially in a
region where historically political regimes have denied and continue to deny nongovernmental organizations and other members of civil society the freedom to function.
Besides the Supreme Commission for Human Rights, the Supreme Commission for
Elections, and the Integrity Agency, all of which have been established as independent
agencies by the new constitution,16 civil society should serve as a primary actor that
monitors governmental institutions to ensure transparency and accountability.17
Armed with this constitutional provision, civil society, especially nongovernmental organizations such as human rights and women’s rights organizations
should take the lead on guarding the constitutional rights stipulated in the new Iraqi
constitution, so that all branches of government, including the executive, the legislative
and the judicial branches comply with the constitutional mandate. Initially, and
continuously, this requires educating civil society itself and ordinary citizens on their
constitutional rights, and how to recognize violations of those rights.
The constitution adopts an expansive interpretation of the scope of rights it grants
in several ways.
First, an individual is entitled to all rights stipulated in the international
conventions that Iraq has ratified, in accordance with article 44 of the constitution,
although one may question the limitation imposed by the article, which provides that such
rights under international law may be claimed only as long as they “do not contradict the
principles and rules of this constitution.” In fact, Iraq has ratified a number of
international human rights conventions, including the International Covenant on Civil
and Political Rights (ICCPR),18 the International Covenant on Economic, Social and
Cultural Rights (ICESCR),19 the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW),20 and the Convention on the Rights of the
Child (CRC).21
13
Article 30.
Article 43.
15
See e.g. the Constitutions of Afghanistan [Article 35], Bahrain [27-29], Egypt [54-56], Jordan [16],
Kuwait [43-44], Lebanon [13], Mauritania [10], Morocco [3,9,14], Oman [32-33], Palestine [52, 54-55],
Sudan [26], Syria [9,39,48], Tunisia [8], and Yemen [29,58].
16
Article 100.
17
The United Nations Convention against Corruption, article 13, provides for public participation as an
important means of combating corruption.
18
Iraq ratified the ICCPR on March 23, 1976.
19
Iraq ratified the ICESCR on January 3, 1976.
20
Iraq ratified CEDAW on September 12, 1986.
21
Iraq ratified the CRC on July 15, 1994.
14
3
Likewise, article 8 of the constitution explicitly states that Iraq “shall respect its
international obligations.” It is to be noted, however, that Iraq has made several
reservations regarding some of the provisions of these international conventions.
For instance, Iraq made a reservation regarding article 16 of CEDAW, which
provides for the equality of men and women regarding the right to marry, the right to
choose a spouse, and the right to dissolve a marriage.
Iraq also made a reservation regarding article 2(f), which mandates state parties to
the convention “To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute discrimination
against women.” It is significant to note, however, that article 43 of the new Iraqi
constitution provides that the state shall “forbid tribal customs that are inconsistent with
human rights.” Consequently, the state should take the necessary measures, including
legislative measures and educational initiatives to abolish a practice such as honor killing.
Iraq also made a reservation against article 2(g) of CEDAW, which provides that
state parties shall undertake “To repeal all national penal provisions which constitute
discrimination against women.” The Iraqi penal code entails numerous provisions that
arguably discriminate against women, especially article 41, which provides that there is
no crime in a case where a person is exercising his right to discipline his wife; article 377,
which punishes the adulteress (wife) regardless of the place where the act has been
committed, while the husband is punished for adultery only if he commits the act in the
marital home; article 318, which provides for a minor sentence of imprisonment not to
exceed one year in cases where the husband induces his wife to commit adultery; and
article 409, which provides for a short imprisonment sentence not to exceed three years
when the husband murders his wife upon finding her committing the act of adultery.
The argument has also been made that the Iraqi Personal Status Law, no. 188 of
1959 contains several provisions that discriminate against women, including polygamy
(article 4), unilateral divorce (article 34), abuse of rights in cases of divorce (article 39),
marital alimony (article 35), and the double-inheritance rule (article 89).
The principle of equality between men and women and the prohibition against
discrimination on the basis of sex as stipulated in article 14 requires the Iraqi legislator to
reconsider these discriminatory provisions of the penal code and the Personal Status Law.
However, one must admit that if the ruling of any of these provisions is derived from a
ruling of Islamic legislation, which is certain in nature as opposed to Islamic
jurisprudence, which is only presumptive, it may be difficult to change.
Similarly, Iraq made a reservation regarding article 14 of CRC, which provides
for the right to freedom of religion.
4
However, it is to be noted that the constitution prohibits any entity or school of
thought from advocating for adopting “takfir” (declaring someone an infidel, article 7).22
The constitution also guarantees the right of a person to be free from “religious coercion”
(article 35)23. Freedom of religion is protected also under article 39 and 40 of the
constitution.
Second, the constitution prohibits restricting any of the rights or freedoms stated
in the constitution, except by a law or in accordance with a law, provided that such
restriction “does not undermine the essence of the right or freedom” (article 45). One
may argue for instance that requiring a spouse’s approval for a wife to travel would
circumvent the fundamental nature of freedom of movement that is explicitly stipulated
in article 42 of the constitution.
Obviously, the scope of these rights and any restrictions or limitations that may be
imposed upon these rights are to be determined by the judiciary. The constitution creates
a Federal Supreme Court to be entrusted with the “interpretation of the provisions of the
constitution”24 and “review of the constitutionality of laws and regulations in force.”25
The Iraqi constitutional legislator chose to adopt a centralized remedial and concrete
model of judicial review or constitutional control.
The constitution, however, does not specifically determine the structure of the
Court itself and provides for somewhat contradictory criteria upon which the Court shall
decide issues of constitutionality.
As to the structure of the Court, article 90 provides that the Court will consist of
“a number of judges, experts in Islamic jurisprudence and jurists of the law”. Other Arab
constitutions did not draw such a distinction between a jurist of the law and a jurist of
Islamic law.26 However, the number of those who are going to be serving on the Court
and the method of selection will be determined by a law. 27 Consequently, this law
becomes very significant. Will it require a number of experts in Islamic jurisprudence
that is equal to the number of jurists of the law? Who will have the authority to choose
these judges, experts and jurists? Will the Court include female judges? This last question
raises a debate in the Muslim world regarding the relation between Islamic legislation
The Quran provides: “Those who believe, then reject faith, then believe (again) and (again) reject faith,
and go on increasing in unbelief- Allah will not forgive them nor guide them on the way.”
23
This is consistent with the Quranic verse that states that there is “No compulsion in religion”
24
Article 21 second.
25
Article 21 first.
26
See, e.g. the constitutions of Egypt (article 176), Kuwait (article 173), Lebanon (article 19), and Sudan
(article 105).
27
Article 90 requires that such law must be passed by two thirds of the members of the parliament. Some
constitutions detail the structure of the Court. See e.g. the constitution of Pakistan, article 203 (c)(2) “The
Court shall consist of not more than eight Muslim Judges, including the Chief Justice, to be appointed by
the President.” Similarly, the constitution of Iran states, in article 91, “The Guardian Counsel shall consist
of six religious men […] and six jurists, specializing in different areas of the law […].”
22
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and Islamic jurisprudence, especially because no Quranic verse prohibits women from
serving as judges.28
The legislative process that will implement the various constitutional mandates
should be exercised carefully and with caution to fully reflect the letter and intent of the
various provisions of the constitution, especially those that establish a bill of rights for
the Iraqi people. The constitution delegates to the legislative branch the power to enact
laws regarding many areas, namely citizenship,29 political asylum,30 right to form
unions,31 confiscation of property,32 free movement of workers, goods and capital,33
investments,34 administration of state property,35 exemption from taxes for low-income
people,36 social security and health insurance,37 right to build medical facilities,38 rights
of disabled persons,39 education,40 role of civil society,41 elections,42 powers of the
Council of Representatives and of the Prime Minister,43 nomination for presidency,44
functions of the Ministries,45 structure of the Federal Supreme Court,46 Functions of the
Independent Agencies,47 Functions of Regions and Provinces,48 extraction of oil and
gas,49 and customs50.
As to the issue of constitutionality, the new Iraqi constitution raises several
conflicting issues that should be reconciled.
What is the criterion that will determine constitutionalism? The constitution, in
article 2, declares Islam as the official religion of the State and as such it follows at least
The Quran addresses both men and women regarding leadership and judgeship. The Quran states; “God
doth command you to render back your trusts to those to whom they are due; And when yea judge between
peoples, that yea judge with justice” (verse 58 p. 203, Ali, Sura IV: Nisaa [The Women]) and “The
believers, men and women, are protectors, one of another: they enjoin what is just, and forbid what is evil”
(Verse 71, p. 459 of Repentance)
29
Article 18 3rd(a).
30
Article 21 2nd.
31
Article 22 3rd.
32
Article 232nd.
33
Article 24.
34
Article 26.
35
Article 27 2nd.
36
Article 28 2nd.
37
Article 30 1st.
38
Article 31 2nd.
39
Article 32.
40
Article 43 4th.
41
Article 43 1st.
42
Article 48 3rd.
43
Article 59 4th and 59 9th.
44
Article 67.
45
Article 84.
46
Article 90.
47
Articles 100, 101 1st, 102.
48
Articles 103, 132 2nd, 132 4th, 133, and 142 3rd.
49
Article 110 1st.
50
Article 112 1st.
28
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21 other Muslim countries that provide for the establishment of a religion.51 Article 2 also
states that Islam is “a main source of legislation” and as such it follows at least 11 other
Muslim countries. 52 It is important to note here that the constitution makes very few
references to Islamic Sharia, and does not consider Islam as the main source of
legislation, as is the case in countries of Yemen, Oman, Qatar, and Egypt. But what is
more significant is that the constitution does not consider Islam as the only criterion for
constitutionalism. Based upon article 2 of the constitution, a law may be held
unconstitutional by the Supreme Federal Court, which has the exclusive jurisdiction to
review the constitutionality of existing laws and regulations and interpret the provisions
of the constitution in accordance with article 91, not only if such laws and regulations
contradict “the established rulings of Islam”, but also if they contradict “the principles of
democracy” or “the fundamental rights and freedoms stipulated in this constitution.” Are
these criteria, which constitutional legislators enumerate intentionally contradictory?
What are the established rulings of Islam? Are these the certain rules as opposed to the
presumptive rules? Is Islam compatible with democracy? How would we resolve a
conflict between a constitutional right and the interpretation of such right under Islamic
law?53 What if implementation of the equality principle conflicts a ruling of Islamic law?
Will the Iraqi legislator apply the Islamic Code of Crimes and Punishments? 54 Will the
Iraqi legislator be allowed to reconsider the double-inheritance rule that many argue
constitutes a case of sex discrimination or gender inequality?55
How would we interpret the supremacy clause under article 13 that provides that
“this constitution shall be considered as the supreme and highest law in Iraq”? Would
rules of Islam supercede provisions of the constitution as it is the case in Iran56 and Saudi
Arabia?57 How would we reconcile international treaty law on human rights with the
principles of the constitution? How would we reconcile civil law with religious law,
especially considering that article 39 of the constitution allow Iraqis to choose the
personal status law in accordance with their religions, sects, and beliefs? Would a
multiplicity of strict religious doctrines replace the arguably more liberal personal status
51
These countries are: Afghanistan, Algeria, Bahrain, Bangladesh, Brunei, Cyprus, Iran, Jordan, Kuwait,
Libya, Maldives, Malaysia, Mauritania, Morocco, Qatar, Oman, Pakistan. Saudi Arabia, Tunisia, United
Arab Emirates, and Yemen.
52
The countries are: Bahrain (article 2), Egypt (article 2), Iran (article 4), Kuwait (article 2), Oman (article
2), Qatar (article 1), Syria (article 3(2)), United Arab Emirates (article 7), Yemen, (article 3), Afghanistan
(article 3), and Sudan (article 65).
53
For instance, article 11 of the Egyptian constitution limits the application of the equality principle by
providing that: “the state guarantees reconciling the duties of women toward the family and her work in the
society and her equality with men in the political, social, cultural and economic areas without violation of
the rulings of Islamic Sharia.” See also article 5 of the constitution of Bahrain.
54
Some Arab constitutions explicitly provide for the application of the Islamic law in the area of crimes
and punishments. For instance, article 46 of the constitution of Yemen provides that “crime and punishment
shall be determined by the provisions of Sharia and law.”
55
Some Arab constitutions explicitly state that inheritance shall be governed by Islamic law. See e.g.
Bahrain (article 5), Kuwait (article 18), Libya (article 8), Oman (article 11), Yemen (article 23).
56
According to article 4 of the constitution of Iran “All civil, penal, financial, economic, administrative,
cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle
applies absolutely and generally to all articles of the constitution as well as to all other laws and
regulations, and the wise persons of the Guardian Council are judges in this matter.”
57
See articles 1, 6, 7, 8, 45, 46, 48, and 67.
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law no. 188 of 1959? Would that mean the establishment of religious courts or Sharia
courts?58
How would we reconcile the establishment clause with the sovereignty clause
under article 5, which makes the people, not God, “the source of authority and its
legitimacy”?59
The answer to all these questions will depend upon the legislative process that
will commence once the constitution is approved by the people of Iraq. It will also
depend upon the judicial interpretation of its various provisions, especially those that
establish constitutional rights for the Iraqi people. Finally, it will depend upon the extent
to which ordinary Iraqis are educated about these rights and civil society holds the
government accountable to upholding these rights. In all cases, the Iraqi people should be
fully aware of their constitutional rights. Non-governmental organizations and other
members of civil society have the vital duty of engaging in this educational initiative.
For instance, this is the case in Jordan under article 104 of the constitution which stipulates that “the
religious courts shall be divided into (I) the Sharia Courts; (II) The Tribunals of the Religious
Communities.” Article 105 states that: “the Sharia Court shall have exclusive jurisdiction in the following
matters in accordance with its special laws: (I) Matters of personal status of Moslem; (II) Cases concerning
blood money (diyeh) where the two parties are Moslem or where one of the parties is not a Moslem and the
two parties consent to the jurisdiction of the Sharia Courts.
59
Unlike, for example, the constitution of Iran, which provides in article 2(1) that “the Islamic Republic is
a system based in belief in the one God (as stated in the phrase “there is no God except Allah), His
exclusive sovereignty and the right to legislate, and the necessity of submission to His commands.” The
same principle is emphasized in article 56, which states that “absolute sovereignty over the world and men
belongs to God.” The 1973 constitution of Pakistan includes a similar provision in the preamble stating that
“sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by
the people of Pakistan within the limits prescribed by Him is a sacred trust.”
58
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