Munther Al Fadhal, Ph.D
Visiting professor of Middle East laws / International College of law - London
The constitutional lives in Iraq have been unstable through more than half century. Eight constitutions had been presented, Iraqi Basic Law was presented on March 21, 1925, and which revised twice, Firstly in July of 1925 and second time in October 1943. Constitution of July 14, 1958 which was followed by constitution of April 1963, then constitution of April 22, 1964, constitution of April 29, 1964, constitution of September 1968 and the temporary constitution of 1970, which was revised many times but its governance was absent considerably, neither the governor nor the regime has respected it.
After the ceasefire between Iraq and Iran in 1988 many phantasmal talks took place about the permanent constitution, the political plurality and the developing democracy. On July 30, 1990, the last constitutions was presented and which include 179 paragraphs, that explain the political form of the country and its political, social foundations and the philosophy of the regime absolute panoptic governing and in this connection 69 paragraphs has been specialized for the proprieties of the dictator Saddam.
In this context, our point of view is not just about the necessity of making proposals, that is related to life basic rules, but the important thing is to respect the clauses by the judges and without making any exception for the judgments of any law.
The constitution has impeded since 1968 to nowadays and that has resulted in a huge repression of human rights and militarization of the society in a serious level that has not happened in the world since the fall of Nazismen.
Repeatedly the people of Iraq has become victims for the absence of the constitution as the crisis of March, 1970, regarding the agreement between the Kurds and the Arab and which was ended in a disaster by missing a huge part of Iraqi national wealth and by creating disappointment among all Iraqi people for missing a possibility to live in peace with the Kurds according to the laws in the constitution. The same fault happened again, when the national front formed with the Iraqi Communist party and other political parties. The Iraqi Communist party became victim for the same reason after a short time.
Because of the war with Iran the regime got all enough opportunities to stop any changes of legal, political, social and economical toward the better are in the country and the society. The war and the external dangers were excuses used by the regime to hanging the constitution and to violate human rights in Iraq.
According to constitution of 1970 (paragraph 42) the absolute proprieties, which have been exerted by president Sadam, included 120 paragraphs for execution (Death penalty). Generally about the paragraphs whether they have been found or not, the dictator Saddam has used his absolute power according to nature of this regime. If we go back to constitution of 30 July 1990 then we find all laws has been impeded and violated even though this constitution has not be legislated because it was not submitted to any voting by the Iraqi people.
THE LEGAL SYSTEM IN THE FUTURE OF IRAQ
The clauses of Iraqi constitution have been violated since 1968, and the situation has become extremely worse in 1979 as yet and by this, the meaning of having the constitution become useless under this regime. Therefore we think of rebuilding the present legal system and revise it in conformity with the future of Iraq as state with constitutional foundations, therefore the law and nothing but the law should be the basic for all reforms that creates harmony between the laws on one side and harmony between the society reforms in connection with the principles of reforms in the world on the other side.
In place of the present legal system of the regime, we believe in new changing as follows:
Forbidding the torture of political prisoner and abolish the law of amputation and tattoo. The people who have carried out such crimes must be punished for that.
Reforming the Iraqi law of granting citizenship, which is representing a bad example and which is in a disagreement with International Conventions concerning the human’s rights.
Carrying out a new law that legalizing the return of all immigrants, who had been forced to leave their homeland Iraq. The law has also to ensure those people their rights such as compensating the losing of their properties.
Abolishing all resolutions, that has been carried out through the Governing Revolution Council because of its disagreement to the constitution in Iraq and that will require a long time to find out all resolutions and clauses numbers and the date of the issuing.
Abolishing all clauses that has deprive people their job because of there marrying to Iraqi women and to Arabic women and the women of foreigner. Those clauses in our opinion are pointing to a racial, nationalistic and religious discrimination and must be eliminated.
Abolishing all restrictions from the laws and the resolutions concerning the foreigner’s currencies and to give the people possibility to deal freely with those currencies according to a free economic program.
Abolishing Arabzation policy against the Kurd and the policy of racial cleansing and compensate those people for those crimes against them.
Studying the situations in the prisons and carry out a radical reform about it by using concept of treatment instead of the punishment through the education, rehabilitation and compensation of the prisoners.
Abolishing all restrictions of habitation and nullity all a clauses, that restricts the rights of moving and the residency in any part of the country according to constitutions, Iraqi laws and the international conventions among these the paragraphs 13 of human rights, that include free rights for residency and paragraphs 12 from (International
Nullity all laws and resolutions about carrying out mass punishment and instead respecting concept of individual punishment and also to compensating all people for loss and damage that affected them because of the covert and the overt resolutions.
Abolishing all resolutions and instructions that restrict freedom of religion. Granting the rights to exert the religious ceremonials that do not provoke the general public.
Abolishing the law of forbidding the activity of (Behave people) and which was carried out in 1970 against this group because that has been against the International Conventions too such as the law of execution of their activists.
Abolishing the penalty of execution from all Iraqi civil resolutions and military punishments laws.
Abolishing all laws and resolutions that create superiority for one caste in proportion to other, because that infracts the constitution and the international compacts.
Issuing a special law to froze balances that have been embezzled from the Iraqi treasury and punish the people who have participated in this crime, because the Iraq wealth does not belong to any person but to the Iraqi people.
Abolishing the rent estate of 1978 and the state has to provide people appropriate habitation and prevent the exploitation. It is important to encourage the private sector to provide habitations unities too in order to provide the people a comfortable housing policy.
Carrying out a new law that prevent tacking a statement from the accused unless that happens by a clerk in law and a lawyer to be present.
The penalties laws must be revised and replace by rehabilitation in order to grant the prisoners a decent life.
Changing the laws of military service of 1940 and consider Iraq as neutrality country, therefore the military service will be voluntarily for the woman and the man in the next two decades.
Improving the role of woman in the society and to fight against discrimination policy between man and women.
Support the women rights by improve the conditions of their life and stop abusing their rights in the society and to protect them of sexual harassment.
Forbidding the ideology of Baath Party because its foundations and policy based on extremely fanatical nationalistic point of view.
Fighting against all forms for religious fanaticism and terrorism and instead of that popularise the culture of tolerance and to respect the humans rights principles.
The Judicature of Iraq is representing a fundament guarantee for achieving justice in the society. In the countries that are identical with the constitutional institutions the judicature is sovereign and independent and nothing but the law is above it. All Iraqi constitutions is based on this point too (principle of Sovereignty of judiciary system) .
One of the foremost assignments the state of the law of Iraq in future has to work for is to protect the imposingness of judicature and to protect its sovereignty according to the principles of the constitution. This will accomplish an internal harmony between the laws and implement them in the society on one side and achieving justice on other side. Therefore it will be important to concentrate on developing judiciary system, the judicial career and to establishing proper courts for interpleading.
By improving the legal system and justice system in the next two decades must also concentrate on motivating the role of Iraqi women in different fields, and which has not been allowed for women to exert career such as legal adviser in court of appeal (Civil Division, Criminal Division), and high court.
The reform must also include closing down some courts such as “Revolution court” that has serious shortage in performing and applying the law because of representing the regimes attitude in judgment, and on the other hand must the employment procedures be important in order to have a qualified people in this field, because that plays a central role to have secure and an effective legal system and therefore even employee in the police system must be graduated in law. The judiciary system has to belong to Justice Ministry.
In transitional period we have to think of creating a specialised authority with high knowledge to study the law and legislation in conformity with the constitution, Universal Declaration of Human Rights, and the International Conventions. The high constitution court in fact will urged this work and in addition will consider a new plan to legislation laws for the future of Iraq like a civilized country believing in peace and tolerance.
THE LAW OF NATIONAL FRONT
We think of the coming political system must be based on wide national front and their point of view is to tack the mistake of the Saddam’s regime in consideration and to focusing on not to let them happen again. Therefore it is important to establish the law of the national front that works to implement human rights principles in all fields and issue the law of general amnesty can be a start for that aim but not for the very dangerous crimes.
We think also about abolishing all the present laws concerning the trading, the Central Bank, and companies and instead, issue new laws that give more aspect to free market and encouraging the private sector in order to create rational economic policy.
A large part of the laws that is carried out right now in Iraq is returning in fact to India, Osmannisc time, the British colony time, and the dictatorship at last.
Therefore the situation of judiciary has always been unstable and far from the Iraqi people influence and Iraqi society benefit. Consequently the specialised committees of judiciary in future have to clarify the confusion about judiciary environments and devise new and solid process to improve it and to help the people of Iraq to create a positive attitude toward it after many years of suffering and repressing.
The concept of “discrimination” has been a part of the regimes politic programs concerning the ethnical question, religious believe and women rights. For this reason, the question of Iraqi women rights must be recognized and be protected through issued laws concerning many fields such as the Iraqi civil laws, the Iraqi penalty laws.
Biography: Munther al Fadhal, PhD
2001 - Until now - Visiting professor of Middle Eastern laws at the International College of Law - London.
1997 - Until now - Counsellor at law and human rights author / Stockholm-Sweden.
Currently he is also serving as a member of the U.S. State Department working group on the future of Iraq for which he has drafted an Iraqi constitution.
He has taught civil law at numerous universities including:
- 1979 - 1982 and 1987-1991Associate professor of private law at the University of Baghdad-College of law.
- 1979 - 1981 - Expert of Iraqi laws at the Ministry of justice and lecturer of law at judicial institute - Iraq.
- 1982 - 1985 - Associate professor of private law - College of law-University of Annaba in Algeria.
- 1992 - 1993 - Associate professor of Civil law The University of Amman – Jordan (Vice dean of the college of law).
- 1993 - 1997 - University of Al-Zaytoonah in Amman - Jordan and (Head of public and private law Departments).
He is the author of many law books and articles about the democracy, federalism, civil society and the future of Iraq, published in Arabic, Swedish, and English.
He previously and currently supervisor of many PhD’s and master theses in Middle Eastern laws.