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What is the process for drafting Iraq's
constitution?
Writing a permanent constitution is the main task
facing Iraq's 275-member transitional National
Assembly. A general outline and timeline for the
drafting process is spelled out in the Transitional
Administrative Law (TAL), Iraq's interim
constitution passed under U.S. occupation in March
2004. The TAL states that a draft should be ready by
October 15, 2005, but legislators can ask for more
time. Iraq's lawmakers also will have wide latitude
in determining who will compose the document and how
inclusive the process will be.
Who will write the draft?
A constitutional committee primarily composed of
members of the National Assembly. Lawmakers will
also likely invite religious and civil-society
leaders who are not assembly members to join the
committee. "Well-respected Iraqis, including
lawyers, technocrats, and Iraqis with communications
and community-outreach skills, should participate in
the committee," writes David Phillips, a senior
fellow at the Council on Foreign Relations, in a new
report, Power-Sharing in Iraq. Experts agree the
committee will be the main vehicle for Sunni
participation in the drafting process.
Has a constitutional committee been formed yet?
No, because for the moment the political focus in
Iraq continues to be on forming a transitional
government, says Karim Khutar al-Musawi, the
Washington, DC, representative of the Supreme
Council for Islamic Revolution in Iraq, a leading
Iraqi Shiite political party. Thirteen weeks after
the nation's January 30 elections, Iraq's new
legislators have chosen a president and prime
minister, but political horse-trading continues over
cabinet posts. Musawi says he expects a
constitutional committee which includes "jurists,
clerics, intellectuals, and other professionals" to
form two or three weeks after a government is
seated, but stresses that selecting commission
members will not be easy. "This will be another
[political] battle, because the constitutional
committee is the most important committee for Iraq's
future," he says.
Why is the inclusion of Sunni views an issue?
Sunnis, who comprise some 15 percent to 20 percent
of Iraq's population, make up only 6 percent of the
National Assembly, with 17 of 275 seats. That's
because Sunni voters stayed away from the polls on
January 30. Experts cite a variety of reasons for
the Sunni boycott: intimidation from insurgents;
opposition to the U.S. presence; anger over their
loss of power (Sunnis dominated Iraq's government
under Saddam Hussein); uncertainly over their future
status in Iraq; and, in some cases, support for the
insurgency. A constitution that fails to take Sunni
concerns into account, many experts say, could spark
increased violence and--in a worst-case
scenario--lead to a civil war pitting Sunnis against
Shiites, who comprise some 60 percent of Iraq's
population, and Kurds, who make up some 15 percent
to 20 percent.
What are the main issues facing the drafters?
Federalism: While there is general agreement that
Iraq should be divided into federal governorates, or
regions, many details must be decided. A fundamental
issue is how to allot power between the federal
government and the regions. Another is agreeing on
the number of regions and the territory each
encompasses. The knottiest problem concerns Iraqi
Kurdistan, the largely Kurdish region in the north
of the country. This region has been virtually
autonomous since 1991, when it came under the
protection of a U.S.- and British-enforced no-fly
zone. Kurds are demanding a great deal of autonomy
in a federal Iraq in exchange for giving up their
long-held dream of independence. They want regional
control over their 60,000-strong militia, known as
the peshmerga, and also hope to put procedures into
place that would likely lead to an expansion of the
borders of Iraqi Kurdistan to include the nearby
oil-rich city of Kirkuk. Many Kurds were forcibly
removed from that city by Saddam Hussein in a
campaign to bring more Arabs into the region.
Revenue-sharing: One of the main debates facing
Iraqis is how to share billions in annual oil
revenues among the country's multiple ethnic
communities and geographic regions. The TAL
recommends that oil revenues be distributed to
regions based on population, with special
consideration given to parts of Iraq--such as the
Kurdish north and the Shiite-dominated
south--neglected by the former regime.
Revenue-sharing is expected to be a particularly
sensitive issue for Sunnis, who received a large
share of resources under Saddam Hussein even though
there is little oil wealth generated in the central
regions where most Sunnis live.
Division of powers: There is broad consensus that
Iraq's government will have three independent
branches--the judiciary, the legislature, and the
executive--with checks and balances among them. The
details of this arrangement have yet to be worked
out. Drafters will have to decide if the form of
government should be a presidential or a
parliamentary democracy and whether leaders should
be directly elected or appointed by an elected
assembly. The current transitional government is a
parliamentary system with a weak presidency and an
indirectly elected president and prime minister.
Role of Islam: There is wide agreement among Iraqis
that Islam should be considered the nation's
official religion, as it is in most of the region's
constitutions, says Nathan Brown, senior associate
at the Carnegie Endowment for International Peace.
But the role given to sharia, or Islamic law, in the
constitution is expected to be a matter of
considerable contention. Religious Shiites are
expected to demand that sharia be acknowledged as
the sole source of Iraq's law, and they may want the
constitution to state that sharia will govern
marriage, divorce, inheritance, and other so-called
personal-status issues for the nation's Muslims, who
make up more than 90 percent of the population.
Kurds and other secularists want sharia to be
acknowledged as one of a number of sources of Iraq's
law. The TAL compromised between these two
positions: it states Islam is the official religion
and "a source of legislation," but also says the
government may not enact a law "that contradicts
those fixed principles of Islam that are the subject
of consensus."
Will the general Iraqi population be included in
the drafting?
According to Article 60 of the TAL, the drafting
should be a widely consultative process, but whether
Iraqi lawmakers fulfill this mandate remains to be
seen. The TAL dictates that Iraqi lawmakers gather
the opinions of a wide section of Iraq's population,
"in part by encouraging debate on the constitution
through regular, general public meetings in all
parts of Iraq, through the media, and by receiving
proposals from the citizens of Iraq."
What is the deadline for the draft?
According to Article 61 of the TAL, it should be
completed by August 15 and presented to the Iraqi
people for approval in a general referendum by
October 15. But the TAL also allows the National
Assembly to request a six-month extension by August
1. If this happens, the National Assembly would have
until February 1, 2006, to complete the draft.
What are the procedures for the referendum?
After the constitution is drafted, the TAL states,
it must be published and distributed widely to
encourage public debate. The referendum will follow
the period of public discussion. If a majority of
voters nationwide approve it--and if two-thirds of
the voters in three or more of Iraq's 18 current
governorates do not reject it--the constitution will
be ratified.
How did this approval process come about?
It is the result of a compromise in 2004 between
Iraqi Kurds and the Iraqi Arab majority. Kurds make
up more than a two-thirds majority in three Iraqi
governorates of Iraqi Kurdistan--Dohuk, Erbil, and
Sulaymaniya--and wanted to ensure that no
constitution could be enacted without the approval
of these areas. But the referendum formula can also
be used by Sunni or Shiite geographic strongholds to
veto the constitution. This explains why the demands
of all three groups must be taken into account
during the constitution-writing process.
What will happen if the constitution is approved?
After a successful referendum, elections for a
permanent government will be held by December 15.
The new government will assume office no later than
December 31, the TAL states.
What will happen if the constitution is rejected?
The National Assembly will be dissolved, and
elections for a second transitional National
Assembly will be held by December 15. The new
assembly will appoint a new transitional prime
minister and government, and the drafting process
will start again. A second constitutional draft must
be completed by August 15, 2006, after which another
referendum will be held. If the new draft is
ratified, a permanent government will be seated by
the end of 2006. The TAL is silent on what happens
if the second draft fails.
Will Iraqis draw on international assistance to
write the constitution?
Perhaps, though the Iraqi government has not yet
requested assistance, and some experts say the
Iraqis, to display their independence, will shun
help from U.S. advisers. The United Nations has sent
South African human-rights attorney Nicholas Fink
Haysom to the region in case Iraqis request U.N.
assistance, U.N. spokesman Fred Eckhard said April
12. Haysom, Nelson Mandela's long-standing legal
adviser, is "one of South Africa's most prominent
human-rights lawyers," says Paul van Zyl, director
of country programs at the International Center for
Transitional Justice. Haysom is not an Iraq expert,
though he has worked in many countries, including
Burma, Burundi, and Sri Lanka. Van Zyl says that if
Haysom is asked for help, he will likely emphasize
the "consultative and inclusive" aspects of the
constitution-writing process.
-- by Sharon Otterman, staff writer, cfr.org
Articles published here do not necessarily reflect
views of Kurdistan Regional Government.
www.krg.org
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