A Critical Moment in Defining the Legal Framework of Civil Liberties in Iraq:
In the past two years, new drafts of five key pieces of legislation have been proposed that will define some of the most fundamental frameworks protecting civil liberties in Iraq. Problematically, each of these laws contains a substantial number of clauses that are inconsistent with Iraq’s Constitution and obligations under international agreements to which it is signatory. As a result the capacity of these laws to protect the freedoms they are designed to uphold is weakened.
The Law for the Protection of Journalists, while containing some positive improvements in the field of journalists’ rights, was passed with controversy regarding many other articles, in August 2011. The Commission of Media and Communication Law, the Informatics Crimes Law regarding internet use, and Political Parties Law are still draft laws with notable loopholes requiring revision. The Draft Law on Freedom of Expression, Assembly and Peaceful Protest is a fourth excellent case of a key law on civil liberties whose gaps, being still in draft form, currently present a window of opportunity for amendment before passing into law.
Constitutional and International Legal Obligations:
Iraq is a signatory to the International Covenant on Civil and Political Rights of 1966 (ICCPR). Article 19.2 of the ICCPR entitles “everyone the freedom of expression” including “the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The text further specifies that any restriction on this right, the “freedom of peacefully assembly” (Article 21) or “freedom of association” (Article 22.1), must be strictly necessary to preserve the interests of “national security or public safety, public order, the protection of public health or morals” (Articles 19.3.B, 21, 22) or in the case of association and assembly “the protection of the rights and freedoms of others” (Article 21, 22.2).[i]
Likewise, the Iraqi Constitution enshrines the freedom to “assembly and peacefully protest”, and “freedom of expression”, including “freedom of the press, printing, declaration, media and publishing”, unless threatening the “public order and morality” (Article 38).[ii]
The Draft Law on Freedom of Expression, Assembly and Peaceful Protest: Articles
Almost every article of the Draft Law on Freedom of Expression, Assembly and Peaceful Protest suffers from either excessive vagueness, dangerous ellipsis of or direct contradiction to the principles outlined in Iraqi’s Constitution or the ICCPR which would open the door to the abuse of civil liberties in Iraq. As such, the draft legislation bears serious reconsideration.
The draft first limits the rights which it is intended to protect by defining “freedom of expression” and the “right to information” each as the right “of the citizen” only, without mention of the rights of any other categories of persons (Articles 1.1, 1.2). The rights of non-nationals to express their opinion, seek information from the Iraqi state, or engage in gatherings in Iraq are therefore entirely unprotected in this draft.
According to the draft, the only legal “public gathering” is a licensed (Article 7) demonstration (Article 1.5), after 7am and before 10pm (Articles 8.3 and 10.2), which may not be carried out in a public street (Article 8.2). These geographic and temporal limitations prima facie exclude the rights to engage in a strike or sit-in despite the fact that these activities neither threaten the public order nor morality, in and of themselves. Therefore their prima facie exclusion is in contradiction to the constitution. Rather than being elided and their component parts banned, they should be specifically mentioned in the definition of a legal ‘public gathering’ in Article 1 and not contradicted in following articles elaborating thereupon. Article 7.1 specifies that a public gathering must acquire the approval of “the head of the relevant security unit five days before its occurrence”. The application includes the names of “the committee of no less than three people” who are made personally responsible (Article 7.2) for the organization of the gathering, and its adherence to its stated purpose, timing, and location, which are likewise required in the application (Article 7.1). The ‘relevant security unit’ is left undefined and therefore open to opportunistic arbitrary implementation. Likewise demanding a license for all public gatherings places an unnecessary burden on the right to assemble. So too does making its organizers personally responsible for any changes in program. An announcement of the intention to hold a public assembly should be sufficient for security authorities to maintain the public order and morals.
The ability to access information and carry out research, like the right to publish its results, are fundamental pre-requisites to the full exercise of freedom of expression. Article 3.1 takes the important step of discussing “the foundation of an open database of information for the masses” by “the ministries and departments not tied to ministries”. However the formulation of the article must be binding rather than discretionary to have any practical utility. Likewise it would be strengthened by explicit reference to “all institutions of the state” and the specification of the authorities to be held responsible if this does not occur. Article 3.3 allows an appeal regarding the denial of information only through the High Commission of Human Rights. Even disregarding some activists’ doubts of the neutrality of that particular Commission at the current time, providing for a means of judicial (rather than purely administrative) appeal is essential to sufficiently protect a right of this importance. This could be done by allowing an appeal directly through the judicial system in addition or requiring the Commission to respond within a defined period of time (such as three days) and allowing a judicial appeal to the decision of the Commission through the courts in the case of a negative answer. Article 4 rightly protects the right to engage in experiments for the purpose of scientific research and publish the results of this research. However the right to research and publish research is thus limited exclusively to the hard sciences, with no mention of and therefore no protection for research or publication in the humanities or social sciences which are equally integral fields of expression and therefore represents a major gap in the legislation.
Opportunities for Dialogue and Amendment:
Elements of existent Iraqi law, dating from the Ba’athist administration (such as the Penal Code of 1969), the Coalition Provisional Authority (such as Order No. 14 of 2003) and the current administration (such as the Journalists Protection Law of 2011) all bear re-assessment in the interest of fulfilling the duties outlined by the Constitution regarding the guarantees of Civil Liberties in Iraq. However laws such as that on Assembly discussed above, being still in draft form, represent a unique opportunity for lawmakers to enter into the already ongoing dialogue between civil society, academics, and members of the legal system (such as a three-day workshop on the law held by the Iraqi al-Amal organization in Erbil in mid-June 2012 or the seminar held by at Sawa Organization for Human Rights and in cooperation with the Forum of NGOs in the province of Muthana on the 18th of February 2012, to name a few) to engage in reform of the legislation before it negatively affects the legal framework.
The following analysis is part of a series of recent published reviews of individual draft laws on civil liberties in Iraq undertaken by NCCI (links below[i]). A comprehensive long-form report on the interlinking security and legal mechanisms of deteriorating civil liberties in Iraq, with a focus on Freedom of Expression, will be released in the coming month.
A Critical Moment
In the past two years, five new pieces of problematic legislation have been proposed that regard civil liberties, and most notably restrict freedom of expression. These laws will define some of the most fundamental frameworks protecting civil liberties in Iraq.[ii] Yet they reference and entrench weaknesses of pre-existent illiberal legislation dating from the Ba’athist administration (such as the Penal Code of 1969), and the Coalition Provisional Authority (such as Order No. 14 and No. 18 of 2003). They also suffer from new and different clauses that are inconsistent with Iraq’s constitutional and international legal obligations. One, the Journalists’ Rights Law of 2011, has already been passed. Iraq’s Informatics (i.e. Information Technology) Crimes Draft Law regarding internet use is perhaps the weakest of all five. It is also of particular concern given that it should stand for a vote by the Iraqi Parliament in mid-2012.
Obligations under the Constitution and ICCPR
The Iraqi Constitution enshrines the freedom of “assembly and peacefully protest”, and the “freedom of expression”, including “freedom of the press, printing, advertisement, media and publication”, unless threatening the “public order and morality” (Article 38).[iii] Likewise, Iraq is a signatory to the International Covenant on Civil and Political Rights of 1966 (ICCPR). Article 19.2 of the ICCPR entitles “everyone the freedom of expression” including “the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The text further specifies that any restriction on this right, the “freedom of peacefully assembly” (Article 21) or “freedom of association” (Article 22.1), must be strictly necessary to preserve the interests of “national security or public safety, public order, the protection of public health or morals” (Articles 19.3.B, 21, 22) or in the case of association and assembly “the protection of the rights and freedoms of others” (Article 21, 22.2).[iv]
In order to comply with these legal obligations, new legislation by the Iraqi legislature should clearly demonstrate that limitations on freedoms are in the defense of the public against a serious, likely and imminent danger to public safety. Anything less constitutes a disproportionate limitation of and/or sanction upon the freedoms guaranteed by Iraq’s Constitution and legal obligations under international agreements to which it is signatory.
Iraq’s Informatics Crimes Draft Law: Review of Articles
Iraq’s Informatics Crimes Draft Law regarding internet providers and users passed reading by the Council of Ministers in 2011. It now awaits only reading and vote in the Parliament to become binding legislation.
Overly broad definition of defamation threatens basic valid and necessary criticism of policy makers and policy. According to the draft law, persons who use the internet “to attribute terms, images, sounds or any other means that include … insult to the others” are subject to imprisonment of up to two years and a fine of 3 – 5 million Iraqi Dinars (Article 22.3). Life imprisonment is the punishment for those who use the internet to “harm the reputation of the country” (Article 6.1). Life imprisonment is also the sanction for “publishing or broadcasting misleading events for the purpose of weakening confidence in the electronic financial system, electronic commercial or financial documents, or similar things, or damaging … financial confidence in the state” (Article 6.3). Defamation should be a civil issue. Even where defamation is a civil tort, the State should be excluded altogether from the entities whose “reputations” may be its object, since the need to criticize the state is such an important corner-stone to a healthy democracy. The way they are currently written, Articles 6.1-3 thus can effectively prohibit any mere discussion, much less criticism, of the economic, financial and administrative systems of the state. Convincing, fact-based, critical discussion by its very nature weakens confidence in the current system, at least in the short run, for the purpose of promoting reform thereof. Likewise Article 22.3 via its over-broad understanding of “insult” could cover for example such innocuous materials as political cartoons of authorities or sardonic articles regarding their actions.
Like the defamation clauses, the definitions of ‘security’ related technology crimes too suffer from excessive scope. This in turn threatens the space for reporting on and critical re-evaluation of state policy in the security field. Any penalization of promotion or discussion of ideas, even regarding national security must be qualified by standards of the seriousness, imminence, and likelihood of the threat they pose to public security on the ground. Many articles in the law do not. “Setting up or managing a website with intent to promote or facilitate the implementation of ideas which are disruptive to public order” (Article 4.1), “publishing information regarding the preparation and implementation of flammable or explosive devices” (Article 4.3) or “publishing information about using mind altering substances (Article 5.2) are all unqualified. The equivalent of Articles 4.1-2 has been used against journalists reporting the incidence of a terrorist attack for example. This legislation would likewise allow legal harassment of a journalist simply reporting on a drug use problem in a particular area should an excuse to penalize a journalistic critic of a politician be desired. Indeed in the draft internet law these overly-vaguely defined acts are not only criminalized but also punishable with extremely harsh sanctions. Punitive sanctions provided for by the law include life imprisonment and between 25 and 50 million Iraqi Dinars (between US$16,000 and US$32,000, more than 10 times the average Iraqi’s income). The penalty is thus grossly disproportionate to the threat.
The internet draft law also lacks other necessary protections for whistleblowers in both the private and public sectors. Articles 7-9 prohibit the interception of financial data, just as Article 19.1.a prohibits the publication of illegally received materials. These articles should be qualified by a clause permitting such publication if in the public interest. One example might be an anonymous email to a journalist regarding the fraudulent but also private banking activities of a public servant. Currently these varieties of ‘crimes’ in the legislation face perpetrators with fines of up to 10 million Iraqi Dinars and 10 years imprisonment. This constitutes a dangerous deterrent to necessary reporting in the public interest.
Meanwhile total access to individuals’ private information by authorities is permitted without any form of due process. For example, “declining to provide information or data to the …administrative authorities” is criminalized, without demanding that authorities provide either a cause or a warrant (Article 18). Article 13 provides similar permissions to “security authorities and bodies responsible for issuing licenses.” This would allow for example, any state authority to demand news media reveal their sources without even providing a reason therefore.
According to Article 29 in a legal court proceeding “the court may decide to confiscate or damage the tools, equipment, software and devices used in the commission of the crimes stipulated in this act”. The article thus denies basic principles of due process by allowing the destruction of evidence before a judgment is passed and/or and the appeal process exhausted.
The law’s provisions mean that many important forms of new media could simply be banned altogether from use in Iraq. Since the law fails to differentiate between users and service providers for example, Youtube or Facebook could conceivably be shut down if one of their users posted once about an unapproved generic drug. Likewise a media outlet can be shut down as a result of a mistake of one blogger, encouraging self-censorship among internet users and administers alike.
The Draft Law on Information Technology Crimes should be revised to clearly demonstrate the principle that burden be always on the State to show that limitations on freedoms are in the defense of the public against a serious, likely and imminent threat. The opportunity for revision exists, as the law awaits final reading in the Parliament in coming weeks. If it is not however, it will become another link in the chain of weak laws with numerous illiberal clauses from the past three administrations of Iraq, viable for use in coming years in the country though incompliant with Iraq’s most basic legal obligations under its current constitution and international obligations.
[i] These analyses are available in Arabic and in English on the NCCI website. See for example: NCCI, “Draft Law on Freedom of Expression and Assembly: Gaps and Opportunities”, 3 July 2012; NCCI, “Towards Accountability or Autocracy? The Political Parties Draft Law, Proposed Changes and Gaps”, 25 October 2011
[ii] The Journalism Law, while containing some positive improvements in the field of journalists’ rights, was passed with controversy regarding many other articles, in August 2011. The Political Parties Law, Commission of Media and Communication Law, Law on Freedom of Expression and Assembly and the Informatics Crimes Law regarding internet use, are still draft laws with notable loopholes requiring revision.