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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. (ndications
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
[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.
www.memri.org
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