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Q&A: Drafting Iraq's Constitution
5.8.2005
Published Aug.3
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What is the status of
Iraq's constitution?
After a series of setbacks, Iraqi leaders say they
still expect to meet the August 15 deadline for a
draft of the constitution. Calls for a six-month
extension were rejected after the United States
pressured the Iraqi government to reach a compromise
and keep to the constitution's original timetable.
The 71-member committee in charge of writing the
constitution says most of the document has already
been drafted, but several disputes among Iraq's
Shiite, Sunni, and Kurdish communities remain
unresolved. Among them are issues of regional
autonomy, the role of Islam, women's rights, and the
distribution of Iraq's oil wealth. A summit of
Iraq's top political leaders is slated for August 5
to reach consensus on any outstanding issues.
What recent events have hobbled the process?
There have been several. Sunni Arabs staged a brief
boycott of the constitution-writing process in
protest of the July 19 assassinations of two Sunni
members of the constitutional committee. The Sunnis
returned to the process July 26 after a series of
demands-including an independent investigation of
the murders and improved security-were met. Another
setback occurred July 25 when a draft of the
constitution was leaked to the press; the document
detailed Shiite plans to enshrine Islam as the
supreme source of law, curbing the rights of women.
Subsequent protests by women, in Baghdad and abroad,
pushed the drafters to rework some of the
constitution's more contentious wording.
What are the main issues facing the drafters?
Federalism.
There is general agreement that Iraq should be
divided into federal governorates, or regions, but
delegates must decide how to do so. One question is
how to allot power between the federal government
and the regions; another is deciding the boundaries
of each region. The knottiest problem concerns Iraqi
Kurdistan, the largely Kurdish region in the north
of Iraq that has been virtually autonomous since it
came under the protection of a U.S.- and
British-enforced no-fly zone in 1991. Kurds want 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 100,000-strong
militia, known as the peshmerga, and also hope to
put procedures in place that would likely lead to an
expansion of the borders of Iraqi Kurdistan to
include the nearby oil-rich city of Kirkuk. The
city's Arab and Turkmen communities oppose such a
move. Many Kurds were forcibly removed from Kirkuk
by Saddam Hussein in a campaign to bring more Arabs
into the region.
Revenue-sharing.
Another main debate facing Iraqis is how to share
billions of dollars in annual oil revenues among the
country's many ethnic communities and geographic
regions. The Transitional Administrative Law (TAL)-the
interim constitution passed by Iraqis under U.S.
oversight in 2004-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 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-judiciary,
legislative, and executive-with checks and balances
among them. The details of this arrangement,
however, have 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 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 a
matter of considerable contention. Many religious
Shiites are demanding 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. Such
a decree would likely impact women's rights. 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." Some
Shiite leaders have also proposed changing the
country's official name to the "Islamic Republic of
Iraq," a move opposed by Iraq's secularists.
Women's rights.
Shiite religious leaders want to reverse a 1959 law
that settles domestic concerns-issues of marriage,
divorce, and inheritance-in civil courts, and move
such matters to religious courts. Under an earlier
draft of the constitution, women would be stripped
of their rights to inherit property on an equal
basis as men, and their legal protections in case of
divorce would be weakened. Some women also fear that
a provision in the TAL requiring that women hold at
least 25 percent of the National Assembly seats may
be scrapped. Some women's groups want to boost the
quota to 40 percent or greater.
Official language.
There is disagreement among the constitution's
drafters over whether Iraq should have more than one
official language. Arabic will definitely be an
official language-nearly everyone in Iraq, including
non-Arab minorities, speaks at least some Arabic-but
Kurds want the Kurdish language to share equal
status, as was the case under the TAL.
Role of militia groups.
The Kurds want to retain the peshmerga, which
enforces law and order in northern Iraq. Some of
Iraq's leading Shiite political parties also have
militias: For example, the Supreme Council for
Islamic Revolution in Iraq (SCIRI) controls the Badr
Organization, an Iranian-trained armed group that
operates mainly in Shiite-controlled southern Iraq.
(Some of its offshoots, such as a fierce commando
unit known as the Wolf Brigade, conduct
counterterrorism operations in Baghdad.) While the
U.S. government has said it would like to see the
various private militias disbanded, Iraqi leaders
appear to support the continued existence of some of
the groups. "I think they probably will agree to let
them continue to operate, especially in this highly
insecure atmosphere," says Kenneth Katzman, senior
Middle East analyst for the Congressional Research
Service.
Will all of these issues likely be addressed in
the constitution?
No. Most experts say the constitution writers, in
the interest of achieving consensus, will probably
put off many of the most divisive subjects until
after August 15. "Under these tense circumstances,
deferral is understandably the order of the day,"
wrote Noah Feldman, a professor at New York
University School of Law, in a July 31 New York
Times Magazine article. "The less the constitution
says about controversial issues, the greater the
likelihood that it will be ratified." Yet it's
unclear, Brown says, what the amendment procedure
would be for addressing these issues at a later
date. Further, he's skeptical these issues can be
resolved simply by holding "a few weekend retreats,"
referring to the August 5 summit. "We're talking
about issues that have divided Iraq for generations
and have gotten worse in past years," he says.
What happens if the constitution is drafted by
August 15?
It will then be submitted to the National Assembly
for review and distributed for the Iraqi people to
consider. An October 15 national referendum will
follow the period of public discussion. If a
majority of voters nationwide approve the draft-and
if two-thirds of the voters in three or more of
Iraq's eighteen current governorates do not reject
it-the document will be ratified. Elections for a
permanent government will be held by December 15,
and the new government will assume office no later
than December 31, the TAL states.
What happens 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. A new
government will take office and the drafting process
will start again. A second draft must be completed
by August 15, 2006, and a second referendum held by
October 15, 2006. Another six-month extension can be
requested, pushing the final deadline for the second
draft to February 15, 2007. The TAL does not
indicate what should happen if the constitution
fails a referendum a second time.
Why is the referendum approval process so
complex?
It is the result of a compromise in 2004 between
Iraqi Kurds and the Iraqi Arab majority. Kurds
comprise a two-thirds majority in the three northern
Iraqi governorates of Iraqi Kurdistan-Dohuk, Erbil,
and Sulaymaniya-and wanted to ensure no constitution
could be enacted without the approval of these
areas. Arab Sunnis and Shiites could also defeat the
constitution by voting it down by a two-thirds
majority in their geographic strongholds. (Kurds,
who comprise 15 percent to 20 percent of Iraq's
population, are concentrated in the North; Sunnis,
who also make up 15 percent to 20 percent of the
population, are in the center of the country; and
Shiites, some 60 percent of the population, reside
largely in the south.) The possibility of a regional
defeat explains why the demands of all three groups
must be taken into account during the
constitution-writing process.
Can Iraq's National Assembly grant the drafters
more than a six-month extension?
In theory, yes, though this is very unlikely, most
experts say. The political forces that dominate the
National Assembly have so far stuck to the timetable
laid out in the TAL, which they themselves helped
write. The shape of the current government is based
on the TAL's rules, and without the document, a new
political consensus would have to be built from
scratch. Article 3 of the TAL states that
legislators may not "extend the timeframe" of the
transitional government.
Is the constitution likely to quell the violence
in Iraq?
Probably not, experts say. "Under any circumstance,
the core element of insurgency will continue," says
Jeffrey White, Berrie defense fellow at the
Washington Institute for Near East Policy. "[The
constitution] may weaken their hold on Sunnis, but
the insurgency is embedded in the Sunni community,
and entrenched elements will continue to fight." A
lot also depends on the voter turnout of Sunnis in
October's referendum on the constitution, White
says. "If large numbers of Sunnis come out and vote
in large numbers, and vote yes, then that's a signal
that there're lots of Sunnis ready to join the
political transformation process legitimately."
-by Sharon Otterman, associate director, cfr.org,
and Lionel Beehner, staff writer, cfr.org
www.nytimes.com
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