On April 4, the Iraqi Council of Ministers endorsed the “national safety” bill, which regulates the state of emergency and defines the prime minister’s powers and the steps he can take during “emergency” measures, which mostly fall under “martial law.”
However, the bill sparked a controversy when it reached parliament and was published. Most of the debate focused on fears that “the law could be abused by the government to liquidate its opponents,” according to former Vice President Adil Abdul-Mahdi, who pointed to a number of deficiencies in the bill’s mechanisms and loopholes.
Other political parties wondered why the bill was proposed just ahead of the elections, and suspected that the timing pointed to Prime Minister Nouri al-Maliki’s intention to cancel the elections and dissolve parliament.
Raising suspicions further was the fact that the bill, which requires a two-thirds vote in parliament in accordance with Article 61 of the constitution, is being put forth at a time when parliament is unable to hold a regular session to approve the budget. This prompted the parliament’s rapporteur, Mohammed al-Khalidi, to say, “The government sending the National Safety Law to parliament is evidence of [its] failure to provide security, which it hasn’t achieved in the last 10 years.” He expected the bill to be moved to the next session.
According to Paragraph 9 of Article 61 of the Iraqi Constitution, parliament has the power to “declare war and a state of emergency by a two-thirds majority, according to a joint request from the president of the republic and the prime minister,” and stipulates that “a state of emergency shall be declared for a period of 30 days, which can be extended, upon approval each time,” and that “the prime minister shall be delegated the necessary powers that enable him to manage the country's affairs during the period of the declaration of war and the state of emergency. These powers shall be regulated by law in a way that does not contradict the constitution.”
The provisions of the bill raise many questions, such as the definition of “state of emergency,” “the mechanism of dealing with the period of emergency” and “the way to end the state of emergency.”
The bill mixes between environmental disasters and terrorist threats in an open-ended text. In Article 2, Item 1, the bill conditions declaring a state of emergency on whether “the Iraqi people are threatened by a grave danger as a result of terrorist acts carried out by armed or unarmed groups.”
This text leaves the term “grave danger” open to interpretation, and the same case applies to later articles, which stipulate: “If there is a serious disorder or a serious threat to public security … or any military or non-military action that threatens the peaceful transfer of power in accordance with the provisions of the constitution, … or if there is an epidemic or a public disaster … or a declaration of war or a threat to declare war, … or if the state or any part of the state is exposed to any aggressive military action that threatens the integrity of Iraq.”
Iraq has been living under a terrorist threat for more than 10 years, and any terrorist movement is a “grave danger” that “threatens the peaceful transfer of power” because it is “a serious disorder to public security.” Those provisions apply to Fallujah today, and they also apply to Buhriz, Suleiman Bek, parts of Mosul and parts of Baghdad.
A generalized description is not a problem in itself, as long as the law itself requires the approval of parliament to declare a “state of emergency” as part of a joint request from the president and the cabinet.
But the text that regulates a “declaration of emergency” is ambiguous. Article 3 of the bill stipulates: “The request to declare a state of emergency be submitted to parliament jointly from the president and prime minister. Parliament will meet to consider the request, in accordance with the provisions of the constitution, within seven days from the date after [the bill] is registered in the office of the speaker of the house.”
Article 4 stipulates: “The decision of parliament to approve a state of emergency is sent to the president of the republic and the prime minister within 24 hours from the time of issuance.”
But the law ignores the mechanisms and procedures that apply if parliament doesn’t approve the request to declare a state of emergency.
More importantly, the law deals with all the requirements of a state of emergency according to a single standard. Not all disasters and not all security challenges should grant the prime minister absolute powers of “martial law,” as Article 8 stipulates. That article details those powers and grants the government power to restrict the freedom of movement, arrest suspects, impose house arrest on dangerous people, restrict the freedom of people to meet, break up meetings and gatherings by force, release some parties, isolate others, prevent travel to and from the country, censor the media, censor foreign newspapers, seize and prevent circulation of newspapers, impose controls on essential commodities and order people to work. According to the bill, anyone who violates the prime minister’s orders during the period of emergency can be imprisoned, fined or both.
The bill should have defined the powers of the prime minister according to the degree of the state of emergency and according to rankings that are prepared in advance for the degree of risk. The bill should have given parliament the right to assess the level of danger and grant powers in light of that assessment.
The constitutional text sets a clear mechanism to extend or terminate the state of emergency in Article 61: “A state of emergency can be declared for a period of 30 days, which can be extended, upon approval each time.” But the implications of this constitutional provision are not contained in the emergency law. Parliament’s role seems very vague in the period of emergency. The bill doesn’t set the period for the state of emergency to only 30 days, and Article 5 of the bill allows it to be extended by the same mechanism.
Moreover, the law gives the prime minister the right to end the state of emergency, but doesn’t give that right to parliament. According to Article 6 of the bill: “The state of emergency ends by an order issued by the prime minister that the period has ended or when the situation that caused the declaration of the state of emergency ends.” The bill says nothing about the possibility that the executive authority may misuse emergency powers. And that would require parliament’s intervention to restore things to normal.
The emergency bill has several deficiencies, gives absolute powers to one person and has been put forth at a peculiar timing, which raises many questions and requires great care in dealing with the law before it is amended or approved.