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.