More on the Ratification of IHT Death Sentences (Updated)

In my post yesterday on the controversy over the pending execution of Chemical Ali and his two co-defendants, I argued that the Iraqi Constitution gives the President of Iraq, and not the Presidency Council, the authority to ratify death sentences. Earlier today, I received a friendly e-mail from a US official involved in the drafting of the Constitution challenging two aspects of my post. Here is what the official wrote, with all identifying information removed to protect his anonymity (adjustments to article numbering mine):

There is no question that at the time, the understanding of the Presidency provisions was that the Presidency Council would exercise presidential authorities through the full term of the first Iraqi parliament (i.e., through 2010). The word “term” as used in the English translation of Article [55] was not intended or understood to define “term” for the purposes of Article [134]. (I grant there is some ambiguity in the text, but my guess is that it may be responsible to the translation into English.)

… [T]he idea was that throughout the elected term of the first Iraqi parliament, the Prime Minister would be checked by a more powerful Presidency Council. Only after that term would the PM become more powerful, with the Presidency Council disappearing and the powers of the Presidency shrinking and falling under the control of a single, largely ceremonial President. Note that any other interpretation would have extremely broad implications for Iraqi governance beyond the death penalty issue – for example, in abolishing one of the two existing Vice President positions and taking away all power on all issues from the remaining VP.

Moreover, I can assure you that Article 2(c) was understood at the time to be a general supremacy clause, establishing the authority of the Constitution over ordinary national/regional/local legislation. Again, I grant you that the textual formulation is somewhat bizarre. Still, I think the Presidency Council has a very strong claim that its authorities established elsewhere in the Constitution are indeed “rights” of office that fall under the provision.

I am obviously not in a position to question the official’s understanding of the drafters’ intent. But I am skeptical that the errors — if that is what they are — can be attributed to inaccurate translation. It seems far more likely that any disjunction between the text of the Constitution and the drafters’ intent reflects poor drafting instead.

The supremacy issue seems particularly clear. According to the UN translation of the Iraqi Constitution, which has been approved by the Iraqi government, Article 2(c) provides that “[n]o law that contradicts the rights and basic freedoms stipulated in this constitution may be established.” The question is whether the President/Presidency Council’s “power” to “[r]atify death sentences issued by the competent courts” is a right or basic freedom within the purview of the Article. That seems unlikely: as I mentioned in the previous post, Section 2 of the Constitution is entitled “Rights and Liberties,” while the ratification power is included in Section 3, entitled “Federal Powers.” I am not convinced that such a clear structural demarcation between rights and federal powers can be explained as poor translation. And I’m even somewhat skeptical that the narrow textual reach of Article 2(c) reflects bad drafting: if the drafters had wanted the subparagraph to be a general supremacy clause, they could have written it more generally to read “[n]o law that contradicts the provisions stipulated in this constitution may be established.” The other two subparagraphs in Article 2 are written that way: Article 2(a) provides that “[n]o law that contradicts the established provisions of Islam may be established,” and Article 2(b) provides that “[n]o law that contradicts the principles of democracy may be established.” Is it reasonable to assume that, despite the basic textual difference between subparagraph (c) and subparagraphs (a) and (b), Article 2(c) was nevertheless intended to be equally general?

The President/Presidency Council issue is more complicated. The question is whether the expression “one successive term” in Article 134 refers to the legislative “annual term” specified in Article 55 or to the “electoral term” of four years specified in Article 54. It is certainly possible that “one successive term” should have been translated as “one successive electoral term,” but I am not convinced.

First, as mentioned above, the Iraqi government approved the UN’s translation. One would think that, if Article 134 was as important as the US official suggests — and I have no doubt that it is — the Iraqi government would have found and corrected the error.

Second, and more important, although the UN translation does not use “electoral term” in Article 134, it consistently uses it throughout the Constitution, including in multiple articles that deal with final and transitional provisions. Article 122, for example, prohibits amending the Constitution’s rights and liberties “except after two successive electoral terms.” Similarly, Article 133 specifies that Federation Council provisions in the Constitution cannot be applied until the “second electoral term that is held after this Constitution comes into force.” It is difficult to believe that the UN translator would have translated the same Arabic expression differently in the various articles, including two (Articles 133 and 134) that are next to each other. It seems far more likely that the underlying Arabic expression was different — remarkably poor drafting, if Article 134 was actually intended to refer to “one successive electoral term.”

That conclusion, it is worth noting, is supported by an Associated Press translation of an earlier draft of the Iraqi Constitution. The AP translation uses “session” in the draft Constitution’s version of Article 134, dealing with the Presidency Council, but uses “cycle” in the its versions of Articles 122 and 133, dealing with constitutional amendments and the Federation Council, respectively. The AP translation is unofficial and may well be inaccurate in various respects, but the fact that it also uses a different expression in Article 134 than it uses in Articles 122 and 133 nevertheless represents strong circumstantial evidence that the underlying Arabic expression is not the same.

In sum, if the US official is correct about the intent of the drafters — and again, I have no reason to think otherwise — it seems likely that the textual problems he identifies reflect poor drafting, not poor translation. The question then becomes one of constitutional interpretation: does the text of the Constitution or the drafters’ intent control?

I don’t know enough about Iraqi constitutional law to venture an answer, but the stakes of the debate are clear. In terms of Article 2(c), a “plain meaning” interpretation leaves open the possibility that Article 70(H)’s ratification power does not trump the Article 27 of the IHT Statute — thus strengthening Maliki’s argument that ratification of death sentences is not required by Iraqi law — while a “drafters’ intent” interpretation means that Article 70(H) trumps Article 27. And in terms of Article 134, a “plain meaning” interpretation gives sole authority to ratify death sentences to Talabani, the President of Iraq, while a “drafters’ intent” interpretation gives that authority to the Presidency Council instead.

UPDATE: Ah, the perils of confusing Constitutions. As the US official has pointed out to me, Article 13 of the Iraqi Constitution contains another supremacy clause — and this one is general:

First: This constitution is the sublime and supreme law in Iraq and shall be binding in all parts of Iraq without exception.

Second: No law shall be enacted that contradicts this constitution. Any text in any regional constitutions or any other legal text that contradicts it is deemed void.

Article 13 clearly renders Article 2(c) superfluous. Why Article 2(c) is there nonetheless is a mystery. In any case, the only live question in the death penalty debate is thus whether the President, Talabani, or the Presidency Council has the authority to ratify death sentences; Maliki cannot plausibly maintain that Article 27 of the IHT Statute means that neither has that power.