The Medina Charter and how their principle reflected on Kuwait and Iraq Constitutions,
I wrote that article Proudly under supervision
|Section one. A brief overview of the constitution of Kuwait and its Islamic provisions||1|
|The State of Kuwait comprised with three powers.||2|
|Section two. Islamic provisions in the constitution of Iraq Constitution
|The power in country are comprised of
|Section three. commonalities and Differences
between Islamic provisions of Kuwait and Iraq constitutions: my analyzing
|Firstly, the commonalities between both these constitutions||6|
|Secondly, Differences between Iraqi and Kuwaiti constitution||7|
|Section four, Concluding reflections on Islamic constitutionalism in light of constitutions of Kuwait
This essay undertakes a comparative analysis of two constitutions from the Muslim world with a view to identify and analyze the Islamic provisions and common constitutional principles in these constitutions. One of the constitutions is Kuwait and the other is Iraqi.
The essay is presented in four parts. After the introduction section one will identify Islamic provisions from the constitution of Kuwait before proceeding to highlighting the same in the constitution of Iraq in Section two. Section three then engages in a comparative discussion between the nature. Scope and extent to which these constitutions have Islamic provisions.
Section three will also suggest commonalities and differences between these Islamic provisions and ask the question whether the insertion of the provisions result in an Islamic constitution. The analysis will also take note of provisions of the two constitutions that may be controversial from an Islamic perspective.
Section four, I will provide a conclusion to the essay, I will present my own opinion regarding Islamic constitutionalism.
Section one. A brief overview of the constitution of Kuwait and its Islamic provisions ….
This constitution started in the preamble that constitution has been issued in 1962, it is first of all mentioned the name of god. Then after that in the name of the prince of Kuwait, Abdallah Al Salem Al Sabah, Amir of the State of Kuwait, who is the general head of powers. The system of governance is hereditary and the ruler gets the rule if he from same genetic the Mubarak ALSabah only, but other branch from same family prohibited to be a ruler for state of Kuwait. We Should notice that constitution is issued from the prince by him that which classified this constitution contractual between the head of country and the citizen in which the citizen in front of the powers own rights and obligations. the goals of the country aim to reach is better future specifically for citizens and generally for Arab nation by the constitutionalism principles like democratic, Support and service to world peace and of civilization, political freedom, equality and social justice, last thing is unity and stability for the country, to enjoy an abundance of comfort and a higher international standing for Kuwait and for citizens to and enjoy in security.
The article one of that constitution, mentioned the identity of Country and their peoples as a part of Arab nation, and it is fully sovereign, and the title of the country is a State. The same article prohibited to be no surrender of its sovereignty nor cession of any part of its territories. which it is Islamic principle unity of peoples in the country. Kuwait is civil country Islam provision is a source of their laws.
Article two mentioned the religion of the country is Islam and, it is a main source of legislation, in which the parliament when they make a law, they should make a law from any source one of them is Islam, and not the one source but it is one between other sources. The means the Islam is the state of religion and it is explicitly mentioned by saying:
“ARTICLE 2: The religion of the State is Islam and Islamic Law shall be a main source of legislation.”
Before we start talking about the powers in state we should mentioned that the constitution make separation between the powers with cooperation each other by limit, so that each power independent of other power in doing their work and their responsibilities and that according to article 50 which said “In conformity with the provisions of the Constitution the system of government shall be established on the basis of separation and cooperation of powers. No Authority shall be allowed to waive all or part of its jurisdiction as prescribed in this Constitution.”
The state of Kuwait comprised with three powers,
firstly, executive power for example the prince he is the head of the country and the general leader of army and powers armed forces according to article 67 “The Amir is the Commander-in-Chief of the Armed Forces. He shall appoint or dismiss Officers in compliance with the Law. “. he is protected by prohibited touch according to article 54” The Amir is the Head of the State. His person is safeguarded and inviolable.” of any politically injury while the prime minister and ministers are take the politically responsibility on behalf of him according to article 55“The Amir shall exercise his powers by the medium of his Ministers” also article 58 mentioned that ministry are accountability by Amir of their responsivities by saying “The Prime Minister and the Ministers shall be jointly responsible to the Amir for the general policy of the State; and every Minister shall be answerable for the actions of his Ministry.” .
Then Judiciary power which represented in judges and the main part to saving social equity in society and their judgment issue in the name of Amir of Kuwait, the constitution save independent judges in article 163 by saying” No Authority may wield any dominion over a Judge in his rendering of justice and in no circumstance, shall interference be permissible in its performance. The Law shall guarantee the autonomy of the Judiciary and define the Judges’ warranties, the provisions concerning them, and the conditions governing their immunity from dismissal.”, will provide judges or freedom to issue their judgment without afraid of anybody because the constitution protect them also in article 162 which mentioned” The honor of the Judiciary and the integrity and justness of Judges are the foundation of Rule and the guarantee of rights and liberties.”.
What show us how important this power is what constitution gave it to supervision on the law and analyzing when it compliant with constitution or it conflict with it, so it will issue their judgement if there is any conflicted that law will be null and void by their judgments and that according to article 173 when it said “The Law shall determine the competent legal Authority to deal with the settlement of disputes in respect to the constitutionality of laws and regulations and shall determine this authority’s jurisdiction and the procedure it shall follow ….. Where the above-mentioned Authority rules the law or the regulation to be unconstitutional that law or regulation shall be deemed null and void.”
Lastly, legislation power represented in parliament which article 79 saying about “No law shall be promulgated save upon ratification by the National Assembly and sanction by the Amir.”, they are the supervision and watching on executive power and their work also is to create laws, they owned tools according to constitution guarantee for them be active when they do their role in supervision on the government like, question to minister, questioning, and withdrawal of confidence, that mentioned in article 99 “Every member of the National Assembly is empowered to level at the Prime Minister and the Ministers questions to elucidate matters falling within their competence; and the questioner alone has the right to comment, once only, on the answer.” Even in article 100 “ Every member of the National Assembly is empowered to direct interrogations at the Prime Minister and the Ministers on matters falling within their competence.’’ even in article 101. The members of parliament are representing peoples and defended of their main right and create laws to help them and let their life more easier and their members’ choice by free election by only Kuwaiti to choose their representor, and the also came in article 80 which it is said “The National Assembly shall be composed of fifty members elected by general direct secret ballot in accordance with the provisions of the Electoral Law.” , and they elect for four years a periods their members in parliament.
Kuwait constitution defined in the equality in article 7 by expressing it explicitly when mentioned “Justice, freedom and equality are the pillars of society; and cooperation and compassion are the firm link binding all citizens.” That means equality is main thing for supporting the society and it is important principle. The government obligated according to constitution to protect and support equality between the citizen that is clear in article 8 when mentioned ‘’The State shall preserve the pillars of society and shall guarantee security, tranquillity and equal opportunity to all citizens.’’ The right in equality is prohibited of editing in the future to decrease, Unless the editing to add more rights to in it that according to article 175 ‘’ Provisions relating to the Amiri Regime in Kuwait and the principles of liberty and equality stipulated in this Constitution may not be proposed for amendment unless such amendment concerns the title of the Amirate mutato nomine or an increase of the guarantees of liberty and equality.’’
Because the freedom to belief one of the most important and it is absolute for human the constitution pointed on it out in article 35 by saying “Freedom of belief is unrestricted” Then after mention that principle pointed out the role of state in protect and guarantee that freedom by saying ”The State shall protect freedom in the observance of religious rites established by custom” and appoint a condition for practice that right by saying “does not conflict with morals or disturb public order.”
When come to a rule of law, will find that constitution in article 29 pointed out all people are equal in front of law by saying “The people are peers in human dignity and have, in the eyes of the Law, equal public rights and obligations. There shall be made no differentiation among them because of race, origin, language or religion.”, but actually there is a lot of racist for religion or origin for example peoples who’s belong to Shiah do not like Sunnah, and do not like to dealing with them or help them, even though that article pointed out explicitly for that But when find if poor people cannot be in a good position in nice job, While the rich son have that high position even if he is not good qualified, so we can analyze that article mostly just theory but a very good one.
According to that constitution article 2 the religion of state is Islam, although that constitution does not pointed out explicitly to not allowed to any law opposite shariah principles, but we find article 2 pointed out a principle by saying “Islamic Law shall be a main source of legislation.” Which means if that law against shariah it is allowed to apply and valid on peoples there is no any conflicting because in article 2 we find sharia is a main source which means not the only source of law so we can take of other source if it is against Islamic law till decided parliament or constitution court it is not unconstitutional since that time, that law will be invalid, without that former two way the law will still valid.
Section two. Islamic provisions in the constitution of Iraq:
Liberty and democratic practice in Iraq is new. after many years of injustice their previous president Sadum Hussein iraqi peoples in war 2003 got their freedom by helping of USA. After many years of injustice and racism according to religion or origin and many poor. a new Iraqi constitution issued in 2005 by a new government elected by people in free election and they represent people to support democratic practice, and it is a new one after many years of killing innocents, new constitution came to give people their rights and their freedom, according the freedom branch like free to practice their religion, security, privacy, and health. Also, help them to keep their safety, even pointed out maintenance the society specially youth morally and healthy and protect them and develop their skills.
The title of country is republican and we can find that directly in article 1 when it expressed of the country title by saying “The Republic of Iraq is a single federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic, and this Constitution is a guarantor of the unity of Iraq.” Iraq is a civil country Islam provision is a basic source of their laws. the governor hired according to election by the council of representative which they representing the citizen in electing the president and choosing him, which it is very important freedom against the former president who came to that position by military coup and killing him, and electing the president pointed out to it in article 70 firstly by saying “The Council of Representatives shall elect a President of the Republic from among the candidates by a two-thirds majority”. Which it is not inheritance like other Arab country.
The Preamble of Iraqi constitution started in verse of holy Quran “We have honored the sons of Adam” which that pointed out that Iraq is Islamic country in indirect way, then came in article 2 firstly explicitly by saying “Islam is the official religion of the State and is a foundation source of legislation” which let us identify the society identity is Islam.
Article 2 Secondly pointed out to the Islamic identity for second time which mean the majority of Iraqi identity are Muslims with give the fully freedom to practice religions by saying “This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis, and Mandean Sabeans.’’ Which was a big improvement to free in this country. Even in Iraq there is two doctrines of Muslims one of them Sunnah and other is Shiah that constitution arranges protect the practice their religious doctrines for Shaih after many years of killing them for that practice my previous governor in article 10 by saying “The holy shrines and religious sites in Iraq are religious and civilizational entities. The State is committed to assuring and maintaining their sanctity, and to guaranteeing the free practice of rituals in them.’’ Which it will guarantee from them better practice for their religious doctrine.
In other places that constitution again pointed out more than four times on freedom of religions because Iraq comprised of peoples from many religions and doctrine for that came article 43 firstly and secondly to give the freedom for all religion by saying “The followers of all religions and sects are free” then in secondly in the government obligation to guarantee their role to protect practice the right by saying “The State shall guarantee freedom of worship and the protection of places of worship.’’
The constitution prohibited enacted any law if it is against Shariah provisions directly, which means if that law enacted and it is conflicted with one of Islamic provision it is automatically will be unconstitutional and invalid that explicitly expressed about in article 2 firstly A by saying “No law may be enacted that contradicts the established provisions of Islam’’.
Before we start talking about the powers in Iraq republic constitution, we should mentioned that the constitution made fully separation between the powers without any cooperation other powers, so that each power independent of other power in doing their work and their responsibilities and that according to article 47 which said “The federal powers shall consist of the legislative, executive, and judicial powers, and they shall exercise their competencies and tasks on the basis of the principle of separation of powers.”
The power in country are comprised of three powers: –
-The first is executive power represented in the governor and their ministers they are known as government who is responsible of all the managing the country and their relationships with other country, their safety, operations inside her according to article 66 when it pointed out to the executive role when it said “The federal executive power shall consist of the President of the Republic and the Council of Ministers and shall exercise its powers in accordance with the Constitution and the law.”
-Secondly, is the legislation power which it is consist of the council of representatives, and the Federation council according to article 48 when it said “The federal legislative power shall consist of the Council of Representatives and the Federation Council.”. The council of Parliament is responsible of create laws and supervision on the government by their tools according to constitution and account them on every dinar pay it if it is not in their right place. Their tools owned by parliament according to constitution is supervision on government like, question to minister, questioning, and withdrawal of confidence.
-The third, Judiciary power it is independent and the members are prohibited on any other powers to control or affect in them the article 97 saying “Judges may not be removed except in cases specified by law.”, in any kind of affect or even just try will be a crime, whoever tried will be punish according to the criminal law. Even article 87 confirm that independence that power by saying “The judicial power is independent. The courts, in their various types and levels, shall assume this power and issue decisions in accordance with the law.”, also the strongest text came direct and clear about judges is article 88 which said “Judges are independent, and there is no authority over them except that of the law. No power shall have the right to interfere in the judiciary and the affairs of justice.”
Because it helps to spread justice and prohibiting injustice in community and punish the criminal without that power, all people going to kill each other if there is a small problem between them, and it is the power who people will visit to get their rights from anyone in country even the president. Because their importance again mentioned in article 19 by saying “The judiciary is independent and no power is above the judiciary except the law.”.
The supervision on laws if they are suitable with constitution or conflicting is one of responsibilities the federal supreme court according to article 93 firstly when it pointed out to that role it said: “The Federal Supreme Court shall have jurisdiction over the following:
First. Overseeing the constitutionality of laws and regulations in effect.”
The judgments should issue in the name of people that will let us notice how is it that the power of justice important for people in that country and that came in
article 128 when it said “The laws and judicial judgments shall be issued in the name of the people.”
The Iraqi constitution defined confirm on freedom in six article, in my opinion that reflect how important it is for people life, how it was withdrawal from them through days last injustice governor Sddam hussien. Article 14 came and said “Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.” Which it is pointed out to absolute freedom which it is I think a great text in cancel all kind of racism which was available in days last government before this constitution, and supporting equality between citizen explicitly without in discrimination of any kind. Article 15 came to confirm that right by saying “Every individual has the right to enjoy life, security and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.” That text also confirm the people rights and freedom that text came without restrictions for citizen like article 14 but for people in general no matter if they are Iraqi or from in other nationality as long as he life in Iraq because these rights related in international treaty “human rights organization” and it basic rights for humankind. In other hand equality in opportunities it is constitutionalism right and it is guaranteed that why article 16 came to make it a principle no law conflicted or withdraw it this article said “Equal opportunities shall be guaranteed to all Iraqis, and the state shall ensure that the necessary measures to achieve this are taken.”
The rights in litigation and go to natural judge for push injustice in society for individual is for protected and saved for every body without any difference between them at all and that mentioned in article 19 third when it said “Litigation shall be a protected and guaranteed right for all.”
Even it is did not forgot the right in health care which is important to protect citizen of diseases and treat them that came in article 31 firstly when it said:
“Every citizen has the right to health care”. Which I do not agree with them on how they wrote it because that should be a right for everybody not only for citizen, as I see because there is Iraqi and not Iraqi lived in Iraq so that will be a discrimination, it should be wrote like that “Everybody has the right to health car”.
Lastly, in confirm equally between citizen and confirm their right in engage in public business and election and enjoying right in participate in political including their right in vote and elect, even run for office parliament came article 20 to give and confirm and protect that rights in strong law not easy to cancel when it mentioned “Iraqi citizens, men and women, shall have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office.”
In order to keep the freedom completed, The of law in modern country is a basic principle that keep the continuing and availability of the country where everybody feel safe and secure and no one higher than other in respect of apply the law whoever he is. Textile in constitution article 5 mentioned that principle directly and explicitly by saying “The law is sovereign. The people are the source of authority and legitimacy, which they shall exercise in a direct, general, secret ballot and through their constitutional institutions.” In my opinion that text is very important to pointing out on it, but we find on the earth the article has no apply in Iraq because the is sovereign for law in some area only, while most of other areas how no that power for law because there is local court or traditional, and there are doctrines the government cannot control in it, they are out of law, and they own power stronger than official government and their powers, so that I believe that Iraq need foreign power to force these doctrines like (Isis and shaiah) to be in law and apply law create strong Arab army or asking USA to send their army to support local army and spread the safety, because now there is not safety at all thousand and thousand killed every day since the USA army left Iraq.
Section three. commonalities and Differences between Islamic provisions of Kuwait and Iraq constitutions: my analyzing.
We should confirm that both of Kuwaiti constitution and Iraqi constitution pointed out to very important Islamic principles like justice and equality between citizens, and provide them the human rights according to internationals treaties. We will point out the similarities between both of them in next.
-Firstly, the commonalities between both these constitutions: –
1- both these countries are Muslim according to their constitution for example: article 2 firstly of Iraqi constitution mention “Islam is state religion”, while Kuwaiti constitution mentioned in article 2 “The religion of the state is Islam”. The identity of the society are Islam for both these countries.
2-Both these constitutions pointed out for freedom of practice and belief in religions for individual for example: article 2 secondly of Iraqi constitution said “guarantees the full religious rights to freedom of religious belief and practice of all individuals’’. And in Kuwaiti constitution also gave that right in article 35 “Freedom of belief is unrestricted. The State shall protect freedom”. So, that, both of them pointed out to freedom of belief in any religion and protect that right.
3- Both of these countries have a system of government are depends on democratic that mentioned in each constitution for example: in Iraqi constitution article 1 said “. state in which the system of government is republican, representative, parliamentary, and democratic,”. While in Kuwaiti constitution also mentioned that in article 6 by saying “Kuwait’s system of government is democratic”. So that, both countries have parliament and election for their members as represent people.
4-both of them mentioned the Arabic language is official language in the countries for example article 4 firstly of Iraqi constitution said “The Arabic language and the Kurdish language are the two official languages of Iraq”. While in Kuwaiti constitution mentioned that article 3 “Arabic is the official language of the State.”.
5-both of them mentioned the role of country in take care of health of the people, for example in Iraqi constitution article 31 firstly mentioned “Every citizen has the right to health care”. Even in Kuwaiti constitution article 15 mentioned that “The State shall care for public health”.
6- both of them protect the private ownership and give everybody the right disposing of their property in limits of the law, for example in Iraqi constitution article 23 firstly mentioned that “Private property is protected. The owner shall have the right to benefit, exploit and dispose of private property within the limits of the law.”, also in Kuwaiti constitution mentioned that in article 18 when it said “Private ownership is safeguarded. No person shall be prevented from disposing of his property save within the limits of the Law;”. So that, both of them pointed out to protect the private ownerships for the properties.
7- Both of these constitutions pointed out to equality between people and prohibit the discrimination of any kind by color or original or religion or even sex means between male and female, in that Iraqi constitution in article 14 said “Iraqis are equal before the law without distinction as to race, race, nationality, origin, color, religion, creed, belief, opinion, economic or social status.“. The Kuwaiti constitution also in article 14 said “People are equal in human dignity and are equal before the law in rights and public duties, not discriminated against by reason of race, origin, language or religion.” We can analyze how it is important principle is that to keep the society justice and all feel fair and void and null all laws make and differences between people whose life in one country, we needless to mention that the true in life there is a lot of discrimination between people according to relationship we call it locally ‘wasit’ha’.
8-Then both of those constitutions shared in protecting general rights and freedoms for humankind which international treaties mentioned it, for example both of them mention the “punishment is personal” only in Kuwait article 33, while in Iraq article 19 eight. Also, no crime or punishment without text mentioned that manner and prohibiting it, for example article 32 in Kuwait, and article 19 secondly in Iraq. Even they protected homes and prohibit entering without permitting for looking for a crime of anybody, expect if the people who lives in it accept that research, or the general employees like police got official permitting from the Prosecutor, that right mentioned in article 38 in Kuwait, and in Iraq in article 17 secondly. Other important constitution principle is evidence the innocents, in which all people should be innocents till the judge confirm that they are committing in a crime in public court hearing, with give him full freedom to offer their defends, and prohibiting hurt the suspect physically, that mentioned in Kuwait in article 34, and in Iraq in article 19 five.
9- the right to work and choose their type also mentioned in Kuwait in article 41, and in Iraq in article 22 firstly. Then the public funds which it is owned by all citizen like road beach government buildings everything which owned by the government and the citizen in general have the right to use it is called public funds which it protected strongly in Kuwait in article 17, while in Iraq mentioned in article 27 firstly. Then also other important principle both of constitutions take Care about is the family because the family is the main source of society, and protecting youth and old people also, the protect for them is strongly supporting for society, in order to improve that obligation on country to protecting them and developing their life, came that obligation on country came in article 9, 10, 11 of Kuwait constitution and in 29, 30 of Iraqi constitution. Obligation on the country to supporting scientific research and literature are important for countries for developing the sciences in the world, and that obligation on the country mentioned in article 14 of Kuwait constitution, and in article 34 third in Iraqi constitution.
10- The right in learning for all citizens are guaranteed free, that right is make society with high value and very productive, so that it is pointed out in article 40 of Kuwait constitution, in article 34 of Iraqi constitution. Even the right in emailing and communications in secure are guaranteed without supervision unless the public employee like police got a permitting by the prosecutor and that mentioned in article 39 of Kuwait constitution, and article 40 of Iraqi constitution, so in the principle it is prohibited to oversee the personal email and the communications for anybody and it is constitutional right.
11- The independence the judges is main principle for guarantying the safety for society and protecting it of all crimes and clean it of criminals and make it stronger stable, there is no constitution in the world not mention for their importance for the people and because it is constitutional principle, and that mentioned in both those of constitutions, example in Kuwait in article 163, and in Iraq in article 88.
–Secondly, Differences between Iraqi and Kuwaiti constitution: –
1- The system of president in both these countries are difference for example in Kuwait no one can be president and governor unless he belong to Mubarrak AL-Sabah by genetic that means the system of governor came by inheriting , other people who carry name the family AL-Sabah but from different fathers impossible be one day a ruler for Kuwait and that mentioned in Kuwait constitution article 4 which said “Kuwait is a hereditary Amirate held in succession in the descendants of the Mubarak Al Sabah.”. but in Iraqi constitution we found the governor and president be in his position by democratic election for every citizen without difference between them of any kind, and that pointed out in article 5 when it said “Transfer of authority shall be made peacefully through democratic means as stipulated in this Constitution.”
2-The Iraqi constitution pointed out explicitly obligation on country to take care the handicaps and people with special needs, and guaranteed to maintenance for merging them in society and that obligation mentioned in article 32 of Iraqi constitution when it said “The State shall care for the handicapped and those with special needs, and shall ensure their rehabilitation in order to reintegrate them into society, and this shall be regulated by law.”. But in Kuwait constitution not mention that obligation explicitly but we can analyze that in Kuwaiti constitution from it and after sign the government the treaty, it issued law number 8/2010 for handicapped people that consisted all rights from these people how have special needs.
3- Iraqi constitution mentioned explicitly on the right in good environment which is one of human right, and that came specifically and clear in article 33 when it said “Every individual has the right to live in safe environmental conditions.”. meanwhile the Kuwait constitution keep silent and not pointed out on that right, but the members in parliament analyzed that right of article 15 when it said “The State shall care for public health through measures of precaution and cure of diseases and epidemics.”. even when no clear obligation according to texts constitution to take care of environment, the parliament found that people need to issue law number 42/2014 for protecting the environment.
4- The Iraqi constitution pointed out clearly and directly to the right to practice sport and exercises for everybody and put obligation on the country to support the sport activities that obligation came in article 36 when it said “Practicing sports is a right of every Iraqi and the state shall encourage and care for such activities and shall provide for their requirements.”. while Kuwaiti Constitution not mentioned anything about sport and keep silent of that right.
5- The judgments in Iraq according to constitution should issue in the name of people, and even the laws, and that came in article 128 of that constitution when it said “The laws and judicial judgments shall be issued in the name of the people.” While in Kuwait constitution pointed out to that judgments shall be issued in the Amir’s name of state and that came in article 53 “Within the limits of the Constitution judicial power shall be vested in the Courts in the Amir’s name.” and that difference let us know who is effective part and important in country.
6- The legislation power according to Iraqi constitution comprised of two parliaments one of them is the council of representatives and the other is federation council according to article 48 of that constitution when it said “The federal legislative power shall consist of the Council of Representatives and the Federation Council.”. while in Kuwait the legislation power consists only one parliament according to Kuwaiti constitution in article 51 when it said “In conformity with the Constitution legislative power shall be vested in the Amir and the National Assembly.”.
7-In the Iraqi constitution the president take his responsibilities by himself beside his ministers, and they parliament can account him politically, and the president will be in that position temporary, even he came to that position by election according to article 66 of Iraqi constitution when it said “The federal executive power shall consist of the President of the Republic and the Council of Ministers and shall exercise its powers in accordance with the Constitution and the law.“. While the Kuwaiti constitution difference in that part because it mentioned that the president will take his responsibilities by his ministers that came in article 55 when it said “The Amir shall exercise his powers by the medium of his Minister“, even the constitution protect the president of accountability that means he is not responsible politically but their ministers are, and the protection mentioned in article 54 when it said “The Amir is the Head of the State. His person is safeguarded and inviolable.”. Even the president will stay in his position forever till he die or resign in that part there is difference between both system.
8-Iraqi constitution pointed out to some conditions one of them that should the candidates for position prime minister, and ministers must hold a college degree, and that mentioned in article 77 firstly and secondly when it said
“First ;The conditions for assuming the post of the Prime Minister shall be the same as those for the President of the Republic, provided that he has a college degree or its equivalent and is over thirty- five years of age.
”Second ; The conditions for assuming the post of Minister shall be the same as those for members of the Council of Representatives, provided that he holds a college degree or its equivalent.” So, it is a condition to hold a college degree by the candidates for prime ministers and ministers position. While the Kuwait constitution keep silent of that condition and make it is not restricted, even who has hold only elementary school certificate in Kuwait can be a prime minister or ministers.
9-In Iraqi constitution the prime minister and their ministers should tell the constitutional oath before they take their responsibilities in front of council of representative’s members according to article 79 when it said “The Prime Minister and members of the Council of Ministers shall take the constitutional oath before the Council of Representatives.”. We find the things different in Kuwait constitution because the prime minister and the ministers should tell the constitutional oath in front of Amir which he is the governor because their job on behalf of him, so they are responsible in front of him and politically in front of parliament while the Amir is not responsible politically according to constitution, oath came in article 126 which said “Before assuming their powers the Prime Minister and the Ministers shall take before the Amir the Oath prescribed in Article 91 of this Constitution.”
10- The Iraqi constitution prohibited enacted any law if it is against Shariah provisions directly, which means if that law enacted and it is conflicted with one of Islamic provision it is automatically will be unconstitutional and invalid that explicitly expressed about in article 2 firstly A by saying “No law may be enacted that contradicts the established provisions of Islam’’ it is if the law is against sharia it is will be unconstitutional . While Kuwaiti constitution keep silent of prohibiting laws if it against sharia not explicitly for that the commercial law of Kuwait some their articles are against sharia and allowed in Riba and it is still valid.
Section four, Concluding reflections on Islamic constitutionalism in light of constitutions of Kuwait and Iraq.
The Madina Charter important in the sense that it is the first written constitution; it is also modern in the sense that it was promulgated for a plural society, giving equal rights to every citizen as well as giving them a say in governmental matters.
The constitution of medina or medina charter which issued by prophet Muhammad peace upon him after he came to medina in (622 AD – 1 Hijri) between people from different tribes and religions, Ansar and Muhaijrian, whose lives in it, consist principles for human and justice between these people to live together peacefully and create the first country in Islam and make unity between these tribes to defend of medina by money if they non-Muslims and their Jihad if they are Muslims. Even that charter spread peace in Arab world and guaranteed for peoples whose lives in this country supporting by help them by money or food, must these principles we called constitutional principles which pointed out to it in modern constitution and most human right organizations and international treaties obligations the countries in it.
The constitution principle mentioned in Medina charter any it is Islamic is Shorua, which it is engage in government matters and managing the country and that we can find it in new modern constitution in national assembly parliament in Kuwait, and in council of representative in Iraq.
In medina charter Muslim scholar said about it “Kamali said: notes that it is the earliest constitutional document of authoritative standing on record, and that it laid the foundations of a new community in mendina by establishing a basis for the relationships between religious groups: Issues of leadership and subjugation of the powerful tribes to the authority of the new government, principles of equality and justice, freedom of religion, right of ownership, freedom of movement and travel, and combating crime were among the major preoccupations of this document”
Other scholar said: Prof. Hamidullah rightly stated, ” … this new constitution … brought with it very important, and — to Arabia at least — very revolutionary change and improvement, by providing the people with a central public institution for seeking justice, in place of everyone seeking it with the power of his own hand or, at best, that of his family. This epoch-making innovation … brought an end for all times to the chaos of tribalism and which laid the basis for a wider institution, viz a State.”
Many scholars talk about this charter like “Maududi: said he pioneer of the Islamic state and Islamic democracy the medina charter reflects the three cardinal principles of the Islamic political system – tawhid (the oneness of god), risala, and Khilafa. it has also been described as a series of agreements drafted by the prophet to regulate peaceful co-existence and relationships among all of the significant tribes of Medina (Yathrib) including Muslims, Jews, Christians and pagans”.
And Dr.Mohammed ALmoqit described that charter and said “The has the vision in that subject and he described Madina constitution in his article in ALQabas newspaper “it is clear that alMadina is a constitutional reference document . it established a political authority with all it’s components and embodied and it is appoint the general rights and obligation” and he continued said “the constitutional city document establishes a system of government headed by a state ruler, Muhammed (peace and blessings of allah be upon him) . This is explicitly stated in the first three items mentioned above, confirming that the reference to the administration of affairs is for Muhammed”. And the modern constitutions of Kuwait and Iraq are the same because it’s point out the rights and obligations for both party the people and the governor and classified the powers in country and role every one of them which it is modern picture of medina constitution.
The Medina constitution contained very important principles constitutionalism like. Justice and the punishment, and the freedom in believe, which Kuwaiti constitution pointed out to it in article 35 when mentioned “Freedom of belief is unrestricted”. And also Iraqi constitution pointed out to it clearly in article 43 firstly said “The followers of all religions and sects are free”. Even the defend of the country is pointed out the medina charter, and Kuwait constitution mentioned in article 47 explicitly as a duty one citizens by saying “Defense of the country is a sacred duty; the discharge of military service, an honor for the citizen, shall be regulated by Law.” While Iraqi not mentioned that obligation on the citizen clearly.
The medina constitution permitted to make politics groups if it is not threat the country, that right mentioned in Iraqi constitution explicitly in article 39 firstly by saying “The freedom to form and join associations and political parties shall be guaranteed, and this shall be regulated by law.” While in Kuwaiti constitution did not mention anything about it and kept silent about it.
Also, the medina charter principle which it is “No one punishing on other crime or their sin” came in Iraqi constitution article 19 eight when it said “Punishment shall be personal.” Also in Kuwait constitution in article 33 said “Punishment is personal.”.
In medina charter preamble declared the people who in this charter as “one nation or ummah wahidah” which it is made unity between citizens from many bloods and remove all types discriminations and that helped to make the Medina strong country through that time which there is no countries just the tribes from same family. The former constitutional principle mentioned in Kuwait constitution in article 29 when it said “The people are peers in human dignity and have, in the eyes of the Law, equal public rights and obligations. There shall be made no differentiation among them because of race, origin, language or religion.”
Also the Iraqi constitution pointed out to that on article 14 when it said “Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.”
In my opinion, most constitutional principles which came in medina constitution is a one of the important source and main source for modern constitutional principles in Kuwait and Iraq Constitutions, even we don’t have evidence on our opinion, but that I found after study both of madeina charter and Iraq constitution 2005 and Kuwait constitution 1962, and what I personally analyzed. For example, the structure below when we compare it with both of these modern constitutions
On article 1 of medina charter mentioned “In the name of God the Compassionate, the Merciful.:(1) This is a document from Muhammad the prophet (governing the relations)”.While in Kuwait constitution in preamble said “In the Name of God the Compassionate, the Merciful
We, Abdallah Al Salem Al Sabah, Amir of the State of Kuwait,”.
And in Iraqi constitution preamble said “We, the people of Iraq, of all components and across the spectrum, have taken upon ourselves to decide freely and by choice to unite our future“.
- the college of law- university of Babylon . iraq
- Scholars from Books:-
- shahen ali, ‘course book’ page 55.
- ALQabas news paper, dr muhammed almQit artice “Madenia constitution”