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Iraq: Draft constitutions signal loss of
rights
28.7.2005
By Kathleen Ridolfo
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At least two unofficial
versions of Iraq's draft constitution have been
leaked to the press in recent days, leaving many to
speculate on what the future holds for Iraqi
citizens in terms of individual and minority rights.
Iraqis close to the constitutional committee claim
that many issues remain unresolved and that many
drafts are floating around Baghdad, adding that
those drafts do not represent the final version.
However, those versions circulating in the media,
including a draft bill of rights, have raised
questions as to the direction the future Iraqi state
will take -- particularly with regard to the role of
religion, the status of clerics, federalism, and
women's rights.
The State Of Religion
One draft, published in Baghdad daily "Al-Mada"
(http://www.almadapaper.com), states that Iraqi
citizens, in addition to the rights laid out in the
constitution, "shall enjoy the rights stipulated in
international treaties, agreements, and
international legal documents....so long as these do
not contradict Islam."
Another draft, published in the daily "Al-Sabah"
(http://www.alsabaah.com), calls for the government
to be a parliamentary democracy with a weak
executive branch; a single legislative body, elected
every four years; and an independent judiciary.
Regarding Islam, the draft states: "Islam is the
official religion of the state. It is the basic
source for legislation. It is forbidden to pass a
law that contradicts its fixed rulings."
This status a marked deviation from that afforded
Islam as "a source of legislation" under the
Transitional Administrative Law (TAL), Iraq's
interim constitution written by the Coalition
Provisional Authority (CPA) in Iraq ahead of the
2004 transfer of power (http://www.rferl.org/specials/iraqcrisis).
The stipulation that it is "forbidden to pass a law
that contradicts [Islam's] fixed rulings" raises
questions as to how the future parliament might go
about considering the entire body of Islamic
jurisprudence when drafting laws and has already
provoked controversy. Iraqi lawyer and journalist
Sattar al-Dulaymi told RFE/RL's Radio Free Iraq (RFI)
in an interview broadcast on 25 July that the
"Al-Sabah" draft "if approved, would be a day of
national mourning over common freedoms." "Islamic
law does not speak about rights. Islamic law is a
system of orders and prohibitions. For this reason,
I cannot speak about rights. All the new
constitution says is that all freedoms and rights
are performed in accordance with the law.... We will
find ourselves asking: What is allowed? It will not
be the other way around.... Islamic law in these
affairs is, strictly speaking, an ideological system
sufficient just for oppressing a human, wiping off
and in the end erasing his or her humaneness."
The "Al-Sabah" drafts also indicates that many
rights affecting women under the personal status law
will be relegated to the jurisdiction of Islamic
Shari'a courts instead of civil courts, which have
presided over such issues -- including inheritance,
marriage, and divorce -- since 1959. Another
provision set out in both the "Al-Sabah" and "Al-Mada"
drafts calls for a 25 percent quota for women in the
National Assembly -- but only for eight years, or
two election cycles.
"We have laid down a formulation that women have
equal rights and duties as men in official and
political affairs," drafting-committee member Jawad
al-Maliki told RFI in a 25 July interview. "Yes,
there might be some affairs related rather to the
personal status where a man has a different position
than that of a woman. There is, however, equality in
political affairs."
The Elevation Of Women
Al-Maliki claimed that a provision calling for an
election quota for women equates to "an
implementation of the rights of women." Asked why
the quota will only remain in effect for eight
years, he said: "We do not want a permanent women's
quota to remain in the constitution; we want [to
see] that women develop their competencies, that
their level is raised, and that they compete with
men on the basis of equality." Those drafting the
constitution believe that eight years is "sufficient
for women to get ready for an equal competition with
men," he said. "But if they build on [the
supposition that] they will not be ready for the
competition, then it is some deficiency for which
only the women are responsible. The quota must not
be taken for granted. It is no gift or pittance that
men give to women."
Parliamentarian Asma al-Musawi rejected al-Maliki's
statements the same day in an interview with RFI in
which she called for the proportional participation
of women to be "anchored by law." She said she would
support a limited time frame for such a quota. "But,
should it be set after two, three, four, or five
[four-year] election terms?" she asked. "This has
been stirring discussions among various women's
movements. We have to admit anyway that a deadline
must be set so that Iraqi society realizes [after
the quota is reached] that Iraqi women have their
place not only in the kitchen but also in medicine,
industry, agriculture, civil engineering, and other
areas of science [and technology], and that they are
at the same time able to advance to politics." Asked
if she thinks that an eight-year quota would be a
sufficient, she said: "I maintain that eight years
is not sufficient for changing this wrong social
concept. I am ready to support those women who
demand a prolongation of this period."
The "Al-Sabah" draft also includes a clause granting
clerics a special status in society that would allow
them to offer guidance "as religious and patriotic
symbols." Again, the ambiguity of the document has
led many to question the meaning of the clause, and
how it would be applied in reality -- particularly
in light of the power and influence that Iranian
clerics wield over their government.
Moreover, the designation of Iraq's name as "The
Islamic Federal Iraqi Republic," in the "Al-Sabah"
draft has raised concerns among non-Muslim Iraqis
and even Muslim Kurds, who are generally secular in
their outlook. Iraqi President Jalal Talabani told
Al-Arabiyah television in a 25 July interview that
Kurds do not agree with the proposed state name. "We
believe that the name should be as it was -- The
Republic of Iraq or the Federal Republic of Iraq. If
we say "Islamic republic" this will be a violation
of the agreement signed" between the Kurds and the
Shi'ite-led United Iraqi Alliance following
January's national elections (see "RFE/RL Iraq
Report," 14 March 2005).
Talabani predicted, however, that the name will not
become a sticking point, "because we all agree with
the other party [Shi'ite Arabs] that the
constitution should be based on the Transitional
Administrative Law. In this law we all agreed that
we do not want an Islamic regime in Iraq, but a
parliamentary, pluralistic, federal, and democratic
regime. Proposing an Islamic name for the republic
would be a violation of the agreement reached."
Regional Power
Perhaps the most contentious issue will revolve
around federalism and the distribution of power from
the center to the regions. The draft published in
"Al-Sabah" states that any two governorates could
form a region. It also places no limit on the number
of governorates that could belong to a given region.
By contrast, the TAL states: "Any group of no more
than three governorates outside the Kurdistan
region, with the exception of Baghdad and Kirkuk,
shall have the right to form regions from amongst
themselves." According to latimes.com, some Shi'ites
hope to use the provision to unite the nine Shi'ite-populated
governorates south of Baghdad into a Shi'ite
mega-state within Iraq. Such a move could lead to a
further fragmentation of the country along sectarian
lines. It could also have enormous consequences on
the distribution of resources in Iraq, as each
region would be financed through a "fixed share of
natural resources."
Another provision in the "Al-Sabah" draft grants
regions the power to make agreements with
neighboring states, as long as those agreements do
not contravene Iraqi law. The provision appeals to
Shi'ites, many of whom seek to strengthen ties to
Iran, but would not be supported by Sunni Arabs for
that very reason. Kurds would also support the
provision since they have been calling in the
Kurdistan Regional Government's constitution for the
power to make agreements with foreign states.
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