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Drafting the Iraqi Constitution By: Nimrod Raphaeli
MEMRI.org | Tuesday, August 16, 2005


Introduction

The new Iraqi constitution is to provide the cornerstone for a free, democratic regime in Iraq subject to parliamentary oversight guaranteeing the rights and liberties of the Iraqi people. It is a unique document in the Middle East in that it is designed to protect the people rather than the rulers. It is a daunting task for a developing country emerging from almost four decades of oppression and decades [even centuries] of authoritarian regimes.

In the words of Herman Schwartz, a noted constitutional scholar which characterize the case of Iraq: "Those who write constitutions for emerging democracies face daunting challenges. First they must write a document that enables the society to decide difficult and divisive questions peacefully, often under grave circumstances. At the same time they must establish effective protections for human rights, including the right of the minority to disagree."(1)

A constitution must embody the spirit, the culture and the aspirations of the people for whom it is written. It cannot be dictated by fiat or governed by artificially ordained schedules.

Iraq went through democratic elections on January 30, 2005. However, it took the political parties elected to the National Assembly almost three months to form a government. It should take much longer to draft a constitution. Unless the drafter can bring on board all the conflicting ethnic, religious and political groups that form the Iraqi mosaic-there will be a real danger that a document will emerge without the necessary legitimate foundations that would make, in the words of Thomas Jefferson describing the American constitution, “a standing monument.”

The American and British governments have pressed the Iraqis to complete the drafting of the constitution by the deadline of August 15.(2) Apart from the legal deadline, for these two countries, the new constitution would serve as their exit visa from Iraq.(3) The American Ambassador to Iraq Zalmay Khalilzad has participated actively in various meetings of the Iraqi leadership which were convened to seek agreements on fundamental national issues. He has also held numerous bilateral meetings with Iraqi leaders offering advice and proposing compromises at every stage of the process. The danger however, is that the drafting of a constitution hastily, in an environment characterized by political rapture and dominated by violence and terrorism will only invite questions about its legitimacy from those who may be opposed to the constitutional process in the first place or from those who feel aggrieved by any of its provisions.

Agreement by Consensus

The Iraqi leaders have agreed that, in principle, every issue has to he resolved by consensus, and not by a majority vote which could easily be mustered by the Shi’a and Kurdish members of the drafting committee of the National Assembly. This was a wise as well as a practical decision. It was wise because the leaders do not wish to alienate any of the major segments of the Iraqi people by forcing on them provisions that may be inimical to their intrinsic interests. It is practical because, under the Transitional Administrative Law [TAL], if two thirds majority of any three provinces of the eighteen Iraqi provinces votes against the constitution it shall be deemed rejected and the drafting process must begin anew.

This consensus provision was intended to give the Kurds what amounts to a veto power over any document that ignores their national demands. Aware of this provision, the Sunnis have also threatened to take advantage of it if their legitimate interests are ignored. While consensus may be difficult to achieve under a tight deadline, it remains superior to a deadlock that could ensue from the rejection of the constitution at the referendum stage.

Pending Critical Issues

Mundhir al-Fadhil, a constitutional lawyer [an Arab but a member of the Kurdish parliamentary faction] and a member of the drafting committee has identified eighteen issues over which there was different degrees of disagreement between the three major ethnic groups in Iraq—the Shi’a, the Sunnis and the Kurds. For each of the issues there are two or more optional resolutions. The following is a listing of the issues, their underlying options and what was adopted for consideration by the National Assembly on August 15:

1. The Title of the Republic (five options)
a. The Federal Republic of Iraq
b. The Iraqi Federal Republic
c. The Iraqi Islamic Federal Republic
d. The Iraqi Republic
e. The Republic of Iraq

2. Religion (three options)
a. Islam is the religion of the state and one of the sources of legislation. There shall be no law that contradicts general principles of Islam.
b. Islam is a fundamental source of legislation and no legislation should contradict it.
c. The religion is the fundamental source of legislation… The constitution shall protect the Islamic identity of the majority of the Iraqi people and its majority of Shi’a and Sunnis.

3. The Structure of the Iraqi People (three options)
a. The Iraqi people is made up of two principal nationalities – Arabs and Kurds, and other key nationalities including Turkmen, Chaldeans, Assyrians and others.
b. The Iraqi people are made up of principal nationalities – Arabs and Kurds and other key nationalities. (One of these other nationalities was Persians which enormous controversy in Iraq. As far as one knows the “the Persian nationality” was expunged from the draft constitution).
c. The Iraqi people is made up of a number of nationalities, religions and sects) without dwelling on the details.

4. Language (two options)
a. The Arabic and Kurdish languages are the two official languages of Iraq
b. Arabic is the official language of the Iraqi state. The Kurdish language will be the other official language in the province of Kurdistan and in the federal government

5. The Identity of Iraq (five options)
a. No mention of identity
b. Iraq is a multi-national and the Arab people is an integral part of the Arab nation
c. The Iraqi state is a founding member in the Arab League and the Islamic Conference
d. The Iraqi state is part of the Arab and Islamic worlds
e. The Iraqi state is part of its Arab and Islamic environment

6 and 7 deal with the marja’iya [the Shi’ite religious authority) and the Shi’ite holy sites. [Indications are that they will be deleted from the final document.]

8. The President of the Republic: One or two vice presidents or no vice president

9. The Ministers: The issue is whether they should be members or non-members of the national assembly

10. Natural Resources (three options)
a. The natural resources are owned by the province which will share them with the federal government
b. The natural resources are owned by the people. They will be managed by the federal government which will allocate a share of them to the province where they are found [e.g. oil in Kirkuk or oil in the southern provinces]
c. The state will manage the natural resources in collaboration with the provinces which will receive a share of them

11. Domestic Relations (two options)
a. A single domestic law across Iraq save those who follow other religions
b. The followers of every religion are free to choose their domestic relations law in accordance with their beliefs

12. Voluntary Federalism and the Right for Self Determination (two options)
a. Include a statement to that effect in the constitution
b. Underscore the unity of Iraqi territory and people

13. Executive Authority: The President or the Prime Minister

14. Dual Nationality (three options)
a. Permitted
b. Not permitted
c. Not permitted for those holding senior state positions
d. [It was noted that the Prime Minister Ibrahim al-Ja’fari and five of his ministers, including his deputy Ahmad Chalabi have a dual nationality.](4)

15. The City of Kirkuk: Establish or do not establish a deadline for its future

16. The Borders of Kurdistan: The same as 15. [The Kurds maintain that Saddam Hussein has annexed big swashes from Kurdistan to the other provinces to the south of Kurdistan. They demand status quo ante.](5)

17. Parliament: National assembly with an upper body or national assembly only

18. Transitional Administrative Law: Termination upon the approval of the new constitution

Four Fundamental Issues

The President of Iraq Jalal Talabani has chaired marathon meetings of the Iraqi leadership for the last six days in an attempt to reach a consensus on the issues. There have been conflicting reports about agreements or disagreements on various issues but there is a common agreement that four of the eighteen issues remain intractable. These are federalism, the role of Islam in legislation, the identity of Iraq and the distribution of national wealth (primarily oil revenues but also water).

Of the four federalism has emerged as the most difficult issue since Abd al-Aziz al-Hakim the head of the Shi'ite Supreme Council of the Islamic Revolution in Iraq [SCIRI] announced three days before the deadline that the Shi’a of Iraq demand that nine of the Iraqi provinces in central and southern Iraq should be federated into a single region similar to the Kurdish region.

While a consensus exists for a federated Kurdish region there are serious disagreements about a Shi’ite dominated region, suspected with affinity to Iran. The Sunnis see al-Hakim’s scheme as a veiled effort to partition Iraq, and they are absolutely determined to oppose it.(6) The Sunnis are concerned that two federated regions in Iraq, one Kurdish and one Shi’ite, which control most if not all of the proven oil reserves will leave them with provinces that control the desert.

On their part, the Kurds are strongly opposed to two of the four fundamental issues: that Islam will be the principal source of legislation and that Iraq is declared as an Arab country.

Available Options

The failure to reach an agreement over a draft constitution has thrown the process into a deadlock. Barring a last minute breakthough these are the options now available to Iraqi leadership:

First, submit to the National Assembly an incomplete draft constitution to meet the provision of Article 61 (A) of TAL [i.e. August 15 deadline], and let the Assembly address the remaining persistent and unresolved issues;

Second, the National Assembly, under the provision of Article 3 of TAL, approves an amendment of TAL concerning the deadline of August 15. The amendment requires the consent of three fourths of the members of the National Assembly and the unanimous vote of the President’s Council, comprising the president and his two vice presidents;

Third, under the provision of Article 61 (E) of TAL the National Assembly shall be dissolved and new elections are called for December 15.

Fourth, and this is entirely a political rather than a legal option, is to ignore the agreement on consensus and submit a draft constitutions without the prior consent of the Sunnis.

Conclusion

While time is of the essence, it is not everything. What, in the future, will insure the viability and legitimacy of the constitution is not how rapidly it was drafted but how popularly supported are its various provisions. It is not timing but consensus that is the most critical factor, and it is the reaching of consensus that should guide the drafters of this vital document.

Dr. Nimrod Raphaeli is Senior Analyst of MEMRI's Middle East Economic Studies Program

Endnotes:

(1) Herman Schwartz, Building Blocks for a Constitution,” an electronic journal of the U.S. Department of State, Vol. 9 No. 1, March 2004.
(2) Al-Ta’akhi, August 6, 2005 and Al-Sharq Al-Awsat, August 7, 2005.
(3) Al-Zaman , (Baghdad), August 11, 2005.
(4) Al-Furat, (Baghdad), August 7, 2005.
(5) A lecture by Ali Salhi [a Kurdish leader] at the U.S. Institute for Peace, August 9, 2005.
(6) Al-Zaman , (Baghdad), August 15, 2005.




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