Academic Articles

History of the Iraqi constitution-making process

Nicholas Haysom, Zaid Al-Ali and Michele Law. Previous unpublished. December 2005

This unofficial history of the Iraqi constitutional drafting process was drafted in late 2005 by the United Nations Assistance Mission for Iraq’s Office of Constitutional Support.  Although it  was reviewed on a number of occasions, it was never published or circulated beyond a limited number of individuals within the United Nations.

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The Internationalised Pouvoir Constituant – Constitution-making under external influence in Iraq, Sudan and East Timor

Philipp Dann and Zaid Al-Ali, Max Planck Yearbook of United Nations Law, No. 10, pp. 423-463 (2006)

This contribution argues that, in order for external influence on constitution drafting processes to enjoy legitimacy it must satisfy a number of criteria. Firstly, it must be exercised with restraint. This goes certainly for any attempt of imposing substantial outcomes. Influence on the procedure, on the other hand, can have a positive effect or even be itself fundamental for bringing about the constitution-making process in the first place. Nevertheless, such merely procedural influence has to be exerted in a way that avoids that the self-interest of the external actor conflicts with or even prevails over the interests of the respective nation. This relates to a second point. External influence should, whenever possible, be exercised through multilateral institutions, in order to avoid possible conflicts of interest that may exist between individual intervening states and the constitution-making society itself. Finally, any external actors that are involved in the process must observe procedural neutrality, which entails, for example, that advice is given to all parties equally and in as transparent a manner as possible. Perhaps such rules will benefit future constitution-making societies and create a setting that will allow for more serious consideration of this topic in the future.

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Constitutional drafting and external influence

Zaid Al-Ali, Chapter 5 in Comparative Constitutional Law, Edited by Tom Ginsburg and Rosalind Dixon, Edward Elgar Pub (2011)

Through the study of a number of recent constitution-making processes, this contribution finds that varying circumstances have sometimes led external actors to exercise their considerable influence selectively, sometimes favoring particular areas of intervention over others. At the same time, there is strong evidence that areas of intervention that have been subordinated in favor of specific interests have in many cases resurfaced in later years as being particularly problematic. This contribution ends by arguing in favor of more equal treatment by external actors of areas including fundamental rights and the establishment of an effective system of government, while at the same time making a more concerted effort to prevent national drafters from settling on a set of rules that would threaten to increase the risk of conflict or that would lead to the establishment of ineffective government.

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Constitutional legitimacy in Iraq: What role local context?

Zaid Al-Ali, Part V.8, Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Edited by Rainer Grote and Tilmann J. Röder, Oxford University Press (2011).

This article seeks to demonstrate how local context can impact a text’s change of achieving internal acceptance. It begins by defining constitutional legitimacy and by arguing that although the 2006 Constitution has been endorsed by the international community, it was essentially dead on arrival in Iraq (II). An effort is made, through the use of two case studies, to explain how this situation was brought about. The first seeks to show how the drafters’ lack of understanding of Iraq’s institutional context brought about the collapse of its system of parliamentary oversight under the 2006 Constitution (III), while the second shows how the constitutional drafters (and the internationals who advised and guided the constitutional process) had misjudged the relative popularity of the parties that were allowed to control the drafting process and that dictated the final text’s content (IV). Finally, an effort is made to define what is meant by “local context” and to identify its different components, particularly with a view to encouraging greater attention and understanding of local considerations and interests by all parties involved in a constitutional process in the future (V).

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The competing effect of national uniqueness and comparative influences on constitutional practice

Zaid Al-Ali and Arun K Thiruvengadam, Chapter 33 in Routledge Handbook of Constitutional Law, Edited by Mark Tushnet, Thomas Fleiner, Cheryl Saunders, Routledge (2012)

This chapter focuses on theoretical, historical and recent trends in constitutional drafting with a particular focus on how local context and characteristics that are unique to particular countries interact with comparative influences. The latter have played a major role in shaping significant domestic constitutional decisions. This historical fact continues to be manifested in contemporary constitutional cultures. We examine the effect of forces of globalization and other phenomena that have led scholars to suggest that we are in an era of convergence of constitutionalism. Our analysis shows that even as there is a movement towards similar constitutional institutions and principles, significant differences lead us to doubt that the moment of convergence is imminent. Our chapter analyzes these questions by focusing in particular on the experiences of postcolonial constitutions and recent events in the Arab region.

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Egyptian constitutional reform and the fight against corruption

Zaid Al-Ali and Michael Dafel

Paper number 1 in Consolidating the Arab Spring: Constitutional Transition in Egypt and Tunisia, Edited by Zaid Al-Ali and Richard Stacey, International IDEA and the Center for Constitutional Transitions at NYU Law (2013).

This paper addresses the question of how a constitutional text can contribute to a commitment to prevent and eliminate corruption.  It was originally prepared as part of the Egyptian Constitutional Drafting Manual presented to members of the Egyptian Constitutional Assembly during 2012.  Its purpose, in that context, was to provide members of the Constitutional Assembly with an overview of the deficiencies of the 1971 Egyptian Constitution in establishing an anti-corruption framework.  The paper has since evolved, as the Constitutional Assembly completed its work in November 2012 and the new Constitution for the Arab Republic of Egypt went into force in December 2012.  The paper’s focus is now an investigation of the strengths and weaknesses of the 2012 Constitution, as compared to both the 1971 Constitution and Egypt’s experience under it, and international constitutional trends in the fight against corruption.  The paper draws its comparative examples from the Middle East, Africa, and India.  It offers an initial assessment of the 2012 Constitution by detailing the advantages and disadvantages of the various approaches reflected in these international examples, the 1971 Constitution, and the 2012 Constitution.  In particular, the paper focuses on (i) state budget procedures, (ii) the public procurement system, (iii) the legislature’s oversight of the executive and oversight of the legislature itself, (iv) the Supreme Audit Institution, (v) the independence of the judiciary, (vi) the independence of the prosecuting authorities, (vii) an anti-corruption ombudsman, and (viii) human rights and corruption.

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