New York Law School's Center for International Law Harlan Scholar's Program/Analysis Paper
The Making of the Interim Iraqi Constitution
Program Analysis
Center for International Law
The Center for International Law at New York School presented a C.V. Starr Lecture entitled "The Making of the Interim Iraqi Constitution" on February 23, 2005. Dr. Feisal al-Istrabadi, an Ambassador at the Iraqi Mission to the United Nations, discussed the drafting and implementation of the "Law of Administration for the State of Iraq for the Transitional Period", which is also known as the Iraqi Interim Constitution (hereinafter referred to as the "Interim Constitution"). Furthermore, Ambassador Istrabadi lectured on the process of preparing a permanent Iraqi constitution and the likelihood of its passage given the many political obstacles facing the heavily fragmented country. Ambassador Istrabadi, exiled from Iraq since the age of eight for a period of nearly thirty-five years, returned to his home country for the first time on April 27, 2003. Istrabadi initially served as an advisor to Dr. Adman ?1 Pachachi, a member of Iraq's Governing Council, following the coalition based military campaign to depose Saddam Hussein from power, but shortly thereafter took an instrumental role in the creation of the Interim Constitution. The Interim Constitution currently serves as the official framework of government for Iraq pending the formal adoption of a permanent constitution to be drafted by August 15, 2005. Ambassador Istrabadi has also served as a vice president of the United States based Iraqi Forum for Democracy, a nonprofit organization seeking to promote a pluralistic democracy for Iraq, and as a United States Department of State advisor on matters relating to Iraq. Upon Ambassador Istrabadi's return to Baghdad in 2003, he discovered a heavily fragmented country divided between the Kurdish population in the north and many different Muslim sects controlling various areas of the south. This deep chasm created two sub-countries in Iraq with different spoken languages, economies, and systems of government. All those involved recognized that drafting an Interim Constitution capable of bringing together the deeply divided political sects within Iraq would be a difficult task further complicated by the destruction of a totalitarian regime and the institution of a provisional 2 government established by the United States led coalition. The initial phase of the transitional period began on June 30, 2004 when the Coalition Provisional Authority dissolved and vested the Iraqi Interim Government with full sovereignty to govern according to the Interim Constitution. The second phase of the transitional period went into effect following the election of the Iraqi National Assembly on January 30, 2005. According to Article 61 of the Interim Constitution, the Iraqi National Assembly must draft a permanent constitution by August 15, 2005 and present it to the Iraqi people in a general referendum to be held no later than October 15, 2005. The Interim Constitution represents the Supreme Law of Iraq during the transitional period and sets out a roadmap for the establishment of a representative and sovereign Iraqi government that protects fundamental rights and provides a stable political structure. Generally speaking, the Interim Constitution sets forth fundamental principles of law and ensures that all Iraqi citizens are equal in their rights without regard to gender, nationality, religion, or ethnic origin.1 The new Iraqi government respects the Iraqi people's fundamental ?1 http://www.globalsecurity.org/military/world/iraq/ig.htm. (last visited April 18, 2005). See The Law of Administration for the State of Iraq for the Transitional Period, available at 3 rights including: (1) freedom of religion, though Islam is specified as the State's official religion and is to be considered a source of legislation; (2) freedom of speech; (3) freedom of the press; (4) the right to privacy; (5) the right to a fair, speedy, and open trial for all accused of crimes; (6) no unlawful arrest or detention; (7) torture and cruel and unusual punishment are banned under all circumstances; and (8) the right to private property.2 The Interim Constitution captured these general notions of fundamental freedoms and the respect for international law in a preamble that 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."3 The preamble continues by stating that the Iraqi people "affir[m] 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."4 ?2 3 4 Id. Iraqi Interim Constitution, Preamble. Id. 4 In his lecture, Ambassador Istrabadi first discussed Article 4 of the Interim Constitution which provides that "[t]he system of government in Iraq shall be republican, federal, democratic, and pluralistic" with powers shared "between the federal government and the regional governments, governorates, municipalities, and local administrations."5 The new Iraqi federal system "shall be based upon geographic and historical realities and the separation of powers, and not upon origin, race, ethnicity, nationality, or confession."6 Ambassador Istrabadi noted that many participating groups in the drafting of the Interim Constitution objected to the use of the word "democratic" in this provision as this term implied the values of western secularism, a state of affairs not embraced by many holding firm to traditional ideas of government based upon the tenets of Islam. The term remained in the final draft reflecting the political ideals of a determined democracy and the influence of the Coalitional Provisional Authority. Emanating from the debate over secular government arose perhaps the most contentious of the Interim ?5 6 Iraqi Interim Constitution, Article 4. Id. 5 Constitution's provisions: Article 7 dealing with official State religion. Article 7(A) states, "Islam is the official religion of the State and is to be considered a source of legislation."7 Furthermore, "no law that contradicts the universally agreed tenets of Islam...may be enacted during the transitional period."8 In each of Iraq's prior constitutions, regardless of their legitimacy, the text decreed that Islam was the official religion of the State and as the Interim Governing Council operated in the capacity of an unelected governing body, it could not turn on its head nearly eighty years of constitutional history in Iraq. Ambassador Istrabadi explained that the language of Article 7 reflects the compromise necessary to appease the emerging secular democratic forces and the traditional government by religious fiat sect in that Article 7(A) specifically recognizes Islam as the official religion of the State but qualifies this decree by providing that the law "respects the Islamic identity of the majority of the Iraqi people [but] guarantees the full religious rights of all individuals to freedom of religious belief and ?7 8 Iraqi Interim Constitution, Article 7(A). Id. 6 practice."9 Additionally, no law that contradicts "the principles of democracy" may be enacted during the transitional period.10 However, as will be discussed below, the appearance of an endorsement of an Islamic theocracy serves as one of the main and lasting criticisms of the Interim Constitution. Ambassador Istrabadi noted that the Interim Constitution is a document with a known date of expiration and as such, Article 9 represents an important constitutional development in the Middle East. Article 9 provides that the "[t]he Arabic language and the Kurdish language are the two official languages of Iraq."11 Iraq is the first Middle Eastern country to recognize more than one language as an official State language. Currently, the Kurdish population in Iraq constitutes between 15 and 20 percent of the total Iraqi population and the Kurdish language has always been an official language in the northern Kurdish region in Iraq. The Interim Constitution, through Article 9, therefore recognized the compromise necessary to reintegrate the northern and southern regions of the country. Kurdish members of the Council of Ministers ?9 10 11 Id. Id. Iraqi Interim Constitution, Article 9. 7 of the Interim National Assembly had already relegated to speaking in their native tongue and the recognition of two official State languages provided part of the foundation for fostering a lasting relationship between different political sects in a unified Iraq. Indeed, Article 9(2) provides that "[s]peech and expression in official [governmental] settings, such as the National Assembly, the Council of Ministers, courts, and official conferences, [may be undertaken] in either of the two [official] languages."12 In further acknowledgment of the importance to officially recognize the Kurdish influence on the development of a newly democratic Iraq, the Interim Constitution recognizes the current government of Kurdistan in the north as the legitimate government of the Kurds, and allows it to continue to exist within the new federal State.13 However, Iraq will have elected governors and "Governorate Councils" for each of its eighteen provinces, as well as elected mayors and city councils for each city. Elections were held at the same time as the National Assembly elections (January 30, 2005).14 ?12 13 14 Id. at Article 9(2). Id. at Article 53(A). Id. at Article 52. 8 Ambassador Istrabadi then referred to Chapter Two of the Interim Constitution, which operates as a "Bill of Rights". In drafting constitutional protections for the fundamental rights of all Iraqi citizens, the Ambassador and his colleagues referred to the American experience and recognized the danger in limiting the application of these safeguards only to the federal government. After all, only after the passage of the 14th Amendment to the United States Constitution did the protections contained in the first ten amendments apply to the individual governments of each state. Ambassador Istrabadi took measures to ensure that the Iraqi "Bill of Rights" initially applied to all governmental entities, especially in light of the fragmented political structures dispersed throughout the country. Therefore, Article 10 of the Interim Constitution provides that "the Iraqi Transitional Government and the governments of the regions, governorates, municipalities, and local administrations shall respect the rights of the Iraqi people, including those rights cited in this Chapter."15 (emphasis added) Article 11 of the Interim Constitution deals with issues relating to previously revoked Iraqi citizenship and ?15 Id. at Article 10. 9 is what Ambassador Istrabadi deems the most widely debated and rewritten provision in the final text of the document. The basic purpose of Article 11 is to ensure that Iraqis who had been stripped of their citizenship on an ad hoc and arbitrary basis due to their nationality, religion, or political views could petition to have their citizenship restored. Article 11(D) of the Interim Constitution states, "[a]ny Iraqi whose Iraqi citizenship was withdrawn for political, religious, racial, or sectarian reasons has the right to reclaim his Iraqi citizenship."16 However, Ambassador Istrabadi discussed a problem that inevitably arises when an emerging country attempts to recognize the previous regime's impermissible revocation of otherwise valid citizenship: Who will decide to reinstate an individual's citizenship? The Ambassador believed that citizenship is innate and one should not be forced to seek approval from a government functionary to establish the legitimacy of an already valid claim to citizenship. Thus, Article 11 represents a compromise and recognition of an Iraqi citizen's right to reclaim an illegitimately revoked citizenship without recourse to a government functionary. Indeed, the only language in Article 11 setting forth a ?16 Id. at Article 11(D). 10 method for examining disputes over citizenship grants the power to the courts to decide such questions.17 The drafters of the Interim Constitution again reflected on the American experience in setting forth Article 12, which provides for equal protection under the laws. Article 12 provides that "[a]ll Iraqis are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion, or origin, and they are equal before the law."18 The evolvement of the application of the United States' Constitution involved constant struggles regarding the equal treatment of individuals based on race and gender. The Ambassador discussed the Interim Governing Council's intent on providing a clear initial statement of the equality of male and female citizens in Iraq. The latter sentences of Article 12 reflect this concern and include strong and definitive language in recognition of the rights of all citizens, men and women alike. The final sentence provides that "[a]ll are equal before the courts."19 (emphasis provided) ?17 application of the provisions relating to citizenship). 18 19 Id. at Article 12. Iraqi Interim Constitution, Article 11(G) (the Courts shall examine all disputes arising from the Id. (Article 12 also states that "[d]iscrimination against an Iraqi citizen on the basis of his gender, nationality, religion, or origin is prohibited" and "[e]veryone has the right to life, liberty, and the security of his person."). 11 Article 15 of the Interim Constitution details a comprehensive set of rights for those accused of a crime. Ambassador Istrabadi discussed the creation of a judicial system with the right of an accused to confront witnesses. The Ambassador explained that Iraq did not intend to institute an adversary system similar to the American judicial process but rather it created an inquisitorial system whereby defense counsel may force the judge to call witnesses during the investigation. In the event that witnesses are called, a trial might occur but one is not necessarily inevitable. Furthermore, the Ambassador explained that Article 15(H) represented a controversial provision in that the previous Iraqi criminal procedure code allowed for an additional prosecution of the same crime where corroborating evidence arose subsequent to the initial prosecution. The drafters realized the importance in recognizing that once an adjudication on a crime had taken place, the defendant had the expectation that his life ought to continue forward without fear of repeated prosecution. As a result, Article 15(H) states, "[a]fter being found innocent of a charge, an accused may not be tried once again on the same charge."20 ?20 Id. at Article 15(H). 12 Additionally, the drafters sought to eliminate the vestige of Saddam Hussein's military control on the judicial process and the use of torture to intimidate and coerce Iraqi citizens accused of crimes. Hussein's regime established numerous military tribunals and various exceptional courts to try individuals for crimes outside of the traditional Iraqi judicial system. Therefore, the drafters included Article 15(I) providing that "[c]ivilians may not be tried before a military tribunal [and] [s]pecial or exceptional courts may not be established."21 Furthermore, the Interim Constitution prohibits any form of torture and negates any confession entered into evidence as a result of torture.22 Ambassador Istrabadi explained that the American led Coalition Provisional Authority recommended an exception to this absolute ban on torture by suggesting that if a confession could have been obtained without the tortured confession, the confession need not be discredited. The Interim Governing Council absolutely refused. Further in relation to the judicial corruption rampant under the Hussein regime, the Ambassador discussed ?21 22 Id. at Article 15(I). Article 15(J) to the Interim Constitution provides that "[t]orture in all its forms, physical or mental, shall be prohibited under all circumstances, as shall be cruel, inhuman, or degrading treatment." Furthermore, "[n]o confession made under compulsion, torture, or threat thereof shall be relied upon or admitted into evidence for any reason in any proceeding, whether criminal or otherwise." 13 the importance of Article 24(C), which provides that "[n]o official or employee of the Iraqi Transitional Government shall enjoy immunity for criminal acts committed while in office."23 The Iraqi constitution of 1970 contained an immunity provision for the president of the revolutionary command council, namely Saddam Hussein. The drafters wanted to ensure that no constitutional bar existed to the prosecution of officials for crimes they commit while holding governmental office. The Ambassador proceeded to discuss the newly granted right of citizens to organize institutions of civil society. Article 21 of the Interim Constitution prohibits the Iraqi governments, administrations, governorates, and municipalities from "interfer[ing] with the right of the Iraqi people to develop the institutions of civil society, whether in cooperation with international civil society organizations or otherwise."24 Ambassador Istrabadi reflected on the strong opposition to the initial inclusion of the term "foreign civil society organizations" rather than the newly drafted term "international civil society organizations." The drafters realized that the members of ?23 24 Iraqi Interim Constitution, Article 24(C). Id. at Article 21. 14 the Iraqi Governing Council harbored deep caution regarding direct foreign influence over the government of the country and its people, especially in light of the strong American presence and its prominence in the coalition. The substitution of the word "international" for "foreign" alleviated all debate with respect to this matter. Ambassador Istrabadi next explained the drafting of Article 23 of the Interim Constitution and its relationship to the Tenth Amendment to the United States Constitution. Article 23 provides that "[t]he enumeration of the foregoing rights must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people."25 This initial sentence lays the groundwork for reserved powers similar to the Tenth Amendment to the United States Constitution but goes further in that the Iraqi people "enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, [and] other instruments of international law that Iraq has signed."26 In comparison to the reserved powers provision of the Tenth Amendment to the United States Constitution, Article 23 to ?25 26 Id. at Article 23. Id. 15 the Iraqi Interim Constitution more explicitly grants the citizens of Iraq all those fundamental rights in relation to freedom and liberty rather than setting forth a technically worded reserved powers clause.27 In effect, Article 23 reiterates much of what is said in earlier provisions, but the repeated reference to fundamental rights and human dignity bolsters the document's strive toward reform and equal protection under the law. Ambassador Istrabadi discussed the Interim Constitution's noticeable lack of a provision comparable to that of the Second Amendment to the United States Constitution.28 The Ambassador remarked that Iraq has been and still is "armed to the teeth" and it was the drafters' hope to eliminate many of the weapons in the hands of ordinary citizens. Article 17 prohibits individuals to "possess, bear, buy, or sell arms except on licensure issued in accordance with the law."29 The emphasis on reducing arms and violence is further reflected in Article 27(B), which ?27 The Tenth Amendment to the United States Constitution states, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 28 The Second Amendment to the United States Constitution provides that "a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." 29 Iraqi Interim Constitution, Article 17. 16 prohibits "[a]rmed forces and militias not under the command structure of the Iraqi Transitional Government."30 Despite the progress the Interim Constitution made toward reducing violence and instituting arms control, a hotly contested provision related to the non-proliferation, non-development, non-production, and non-use of so-called "weapons of mass destruction" sparked substantial debate between the drafters and the American civil administration governing prior to the transfer of power to the Interim Governing Council. The American civil administration continuously insisted that the final draft of the Interim Constitution specifically and permanently outlaw all nuclear, chemical, and biological weapons and associated equipment and materials. However, Ambassador Istrabadi repeatedly objected to and refused to insert a clause recognizing a permanent renouncement of such weapons as the drafters of the Interim Constitution were not an elected body and could not create a binding legal document with permanent force and effect. Ultimately, the Interim Governing Council and the American civil administration reached a compromise reflected in Article 27(E), which states: ?30 Id. at Article 27(B). 17 "The Iraqi Transitional Government shall respect and implement Iraq's international obligations regarding the non-proliferation, non-development, non-production, and non-use of nuclear, chemical, and biological weapons, and associated equipment, material, technologies, and delivery systems for use in the development, manufacture, production, and use of such weapons."31 The compromise language in Article 27(E) was necessary as the Interim Constitution invariably represented a document of limited duration and only the permanent constitution could eternally renounce these weapons of mass destruction. Ambassador Istrabadi completed his lecture by discussing the formation of Iraq's federal judiciary system. Chapter Six of the Interim Constitution, entitled "The Federal Judicial Authority", represents the creation of Iraq's first constitutionally independent judiciary. Previously, judges in Iraq were employees of the Ministry of Justice, an arm of the executive authority. Article 43(A) now provides that the "[j]udiciary is independent, and it shall in no way be administered by the executive authority, including the Ministry of Justice."32 Finally, Article 44 ?31 32 Id. at Article 27(E). Id. at Article 43(A). 18 creates a court called the Federal Supreme Court with the right of judicial review.33 The Interim Constitution is monumental in that it guarantees broad political and civil rights such as equality before the law, a prohibition of torture and cruel and unusual punishment, freedom of speech, freedom of the press, and a right to privacy; all of which were denied to the Iraqi people during the preceding period of dictatorship. However much of the criticism levied against the Interim Constitution relates to the creation of a broader political structure in light of the continuing influence of the coalition and particularly the United States of America. Many critics view the Interim Constitution as a deceptive document designed to obscure continued United States' control. For example, although supporters can point to the Interim Constitution's emphasis on protected fundamental rights and freedoms granted to all Iraqis, critics cite that there is nothing democratic about a process by which a constitution is drafted by a small group of American-appointed Iraqi officials, deliberating under 33 ?The Iraqi Interim Constitution Article 43(C) provides that "should the Federal Supreme Court rule that a challenged law, regulation, directive, or measure is inconsistent with this Law, it shall be deemed null and void." 19 the watchful eye of the Coalition Provisional Authority.34 But before one examines such critiques a review of the development of lasting political structures under the Interim Constitution must be undertaken. The Interim Constitution provides for a National Assembly, elected by the Iraqi people on January 30, 2005. Prior to this initial election, a transitional government entitled the Interim Governing Council assumed control while in consultation with various sectors of Iraqi society and the United Nations. The Interim Constitution provides that the new government will be a democratic republic with three separate branches of government. The elected National Assembly operates as a unicameral legislature with 275 members who elected a President of the Assembly and two deputies.35 The National Assembly is the chief lawmaking body required to propose and pass bills in order to make law for the entire country.36 The National Assembly also elects a President of State who along with two deputies forms the "Presidency Council" to represent the sovereignty of Iraq and oversee ?34 Designed to Make Sure the Upper Hand is Stamped 'U.S.', NEW YORK NEWSDAY, April 1, 2004. 35 36 Iraqi Interim Constitution, Article 31(A). Id. at Article 30(A). Carolyn Eisenberg, Sovereignty or 'sovereignty'; The Recently Signed Interim Constitution is Really 20 the higher affairs of the country.37 The council represents the executive branch of the government and has the right to veto laws passed by the National Assembly, which can then overrule the Council with a two-thirds majority vote.38 The Presidency Council appoints the Prime Minister of Iraq and its Cabinet, all who must be approved by the National Assembly.39 The Prime Minister and his cabinet exercise the day-to-day control over the government, including the armed forces.40 The National Assembly has the right to remove the Prime Minister with a vote of no confidence.41 The Iraqi Supreme Court will have nine members and possess the ability to over-turn legislation it finds unconstitutional under the permanent constitution.42 The federal government appoints the members of the Supreme Court but local governments and their judicial councils appoint local court justices.43 The Interim Constitution also establishes several "National Commissions" to investigate and address recent concerns such as human rights and war crimes. ?37 38 39 40 41 42 43 Id. at Article 36(A). Id. at Article 37. Id. at Article 38(A). Id. at Article 41. Iraqi Interim Constitution, Article 40(B). Id. at Articles 44(C), 44(E). Iraqi Interim Constitution, Article 44(E). 21 Lastly, the National Assembly shall write the draft of the permanent constitution by no later than August 15, 2005.44 The draft permanent constitution shall be presented to the Iraqi people for approval in a general referendum to be held no later than October 15, 2005.45 If the voters approve the permanent constitution, elections for a permanent government shall be held no later than December 15, 2005 and the new government shall assume office no later than December 31, 2005.46 Some critics have identified the Interim Constitution as "illegitimate, amateurish, and unenforceable."47 Detractors claim that "unelected Iraqis untutored in the arts of democratic governance and the rule of law" fashioned the Interim Constitution and "neither through popular referendum nor elected representatives have the Iraqi people conferred moral legitimacy on the interim charter."48 A central concern emanating from the criticism involving the moral legitimacy of the Interim Constitution was that it neglected to establish rules for creating an ?44 45 46 Id. at Article 61(A). Id. at Article 61(B). Id. at Article 61(D). The general referendum will be successful and the draft permanent constitution ratified if a majority of the voters approve and if two-thirds of the voters in three or more governorates do not reject it. Iraqi Interim Constitution, Article 61(C). 47 48 Bruce Fein, Flawed Interim Constitution, THE WASHINGTON TIMES, March 23, 2004. Id. 22 Iraqi government entrusted with its enforcement when the Coalition Provisional Authority dissolved. The Interim Constitution left undecided whether the Interim Governing Council would be appointed or elected and the document suffered in light of the political division among Kurds, Sunnis, Shiites, and other factions thus allowing foreign influences to exert undue control on the shaping of Iraqi policy and government.49 Another source of criticism centers on the belief that the Interim Constitution contains centerpiece provisions that "celebrate an Islamic theocracy and an anemic rule of law unadorned with fundamental freedoms."50 Indeed, Article 7 of the Interim Constitution designates Islam as the official state religion but more importantly as a source of legislation. The document continues by stating that "[n]o law that contradicts the universally agreed tenets of Islam" is valid.51 Therefore, the religion of Islam is "every bit as much the supreme law in Iraq under the Interim Constitution as the United States Constitution is in the United States."52 Furthermore, Article 7 appears to undermine the apparent commitment to a prohibition ?49 50 51 52 Id. Id. Iraqi Interim Constitution, Article 7(A). Bruce Fein, Flawed Interim Constitution, THE WASHINGTON TIMES, March 23, 2004. 23 against religious discrimination by deeming Islam "more equal than othe[r]" religions.53 Lastly, critics assert that the fundamental rights seemingly protected by Article 13 of the Interim Constitution are in actuality hopelessly empty and ambiguous. For example, Article 13(A) promises protection of public and private freedoms but declines to provide any clues as to their core meanings, i.e. does a private freedom include abortion, obscenity, and prostitution?54 Moreover, Article 13(H) provides each Iraqi with the right of privacy but fails to address whether such a right reaches same-sex marriage, sodomy, or protection against wiretapping and electronic surveillance.55 Finally, broad enumerated individual rights included in Article 14, such as the individual right to security, education, health care, and social security, are largely utopian and completely unenforceable.56 Although the many criticisms of the Interim Constitution appear to go to the heart of the text of the document itself and its lacking in approval by the Iraqi people, even those detractors must admit that a democratic 53 54 55 56 ?Id. Id. Id. Id. 24 Iraq seemed largely an impossibility just two short years ago, yet now free elections have chosen the country's first National Assembly and the road is clear for an attempt to adopt a permanent constitution. I agree with many of the questions the critics voice, most especially the Interim Constitution's absolute prohibition against any law that contradicts the "universally agreed tenets of Islam." The phrase "universally agree" is ripe with ambiguity and will surely lead to warring interpretations concerning the proper role of religion in legislative policy. Similarly, the protected fundamental rights are ambiguously described and the individual rights to social security and health care will surely create problems in a society only beginning to rebuild after years of totalitarian rule and war. However, over two-hundred years of development in Constitutional Law in the United States has shown that ambiguity and a strive toward the most idealistic notions of freedom and liberty allowed our constitutional text to evolve and continuously uphold not only the beliefs of the drafters but the basic understanding of fundamental rights and democratic rule in a modern society. The critics of the text of the Interim Constitution apparently fail to understand that provisions 25 spelling out every governmental power and every individual right and freedom in stark detail is not only impossible but also unwise. First of all, as noted by Ambassador Istrabadi repeatedly in his lecture, the Interim Constitution is not a permanent constitution but rather a transitional document drafted by an unelected governmental body without the authority or legitimacy to eternally prescribe positive law in Iraq. Furthermore, the expansive and ambiguous descriptions of individual rights and liberties reflect the recognition that a democratically elected government operating under a future permanent constitution will ultimately formulate the boundaries defining exactly what rights and liberties are protected and under what authority the government may legislate. Indeed, one must recognize that, as in the United States or any other political system with separate branches of government, the legislative body will ultimately prescribe law and the courts will interpret the proper application of such laws pursuant to and under a permanent and freely adopted constitution. I found Ambassador Istrabadi's lecture illuminating and incredibly insightful about a process appearing infinitely detached from a foreigner's perspective but intimately personal in that the reconstruction of Iraq 26 has been a daily preoccupation in the United States since the beginning of the military campaign to topple Saddam Hussein. The Ambassador explained in detail many of the compromises in language that were necessary while drafting the Interim Constitution; not only between members of the Interim Governing Council but also between the drafters themselves and the American administration in Iraq. Ambassador Istrabadi successfully rebutted many of the criticisms concerning the substantive text through detailed discussions of the intent of the drafters and the importance of certain provisions in relation to their historical and geographical significance. Indeed, I found the Ambassador's account of the defiance of the drafters to the American civil administration's insistence on a permanent renouncement of all weapons of mass destruction illustrative of the true strengths and triumphs of the Interim Constitution. Only when one recognizes the true nature of the Interim Constitution as a transitory and finite document merely laying the groundwork for broader reconsideration in a permanent constitution can one begin to appreciate its strength as expressed in the words of Ambassador Istrabadi. 27
