The signing of an
interim constitution by the Iraqi Governing Council
(IGC) represents a significant step in United States
efforts to legitimize its invasion and occupation of
Iraq. By achieving the codification in a US-supervised
process of an ostensibly "Iraqi" legal document, the US
as occupying power is hoping that its planned June 30
"transfer of power" will be accepted globally as the
"restoration of sovereignty to Iraq". In fact, that
"transfer of power" will not end the US occupation, will
not lead to the withdrawal of US troops, and will not
result in any real sovereignty for Iraq. The
constitution itself implies recognition of its
impotence, as it recognizes that all "laws, regulations,
orders and directives" issued by the US occupation
authorities will remain in force.
The new
Iraqi constitution lacks legitimacy It was
drafted under US supervision by a body hand-chosen by
the US military occupation authorities, and subject to
final approval by the US proconsul, L Paul Bremer. Its
acceptance by the Iraqi population remains uncertain;
its ability to actually set the terms for laws to govern
the country during the interim period after June 30
remains unknown; its relevance to any truly independent
government created after the interim period remains in
doubt. As a result, any examination of the constitution
must include its legitimacy/illegitimacy, as well as the
content of its provisions.
The constitution
describes only a vague process to select the new
transitional government to which the US will "transfer
power" on June 30. It is to be chosen through "a process
of extensive deliberations and consultations with
cross-sections of the Iraqi people conducted by the
Governing Council and the Coalition Provisional
Authority and possibly in consultation with the United
Nations". No method of conducting such "extensive
deliberations" is included, and given the IGC's failure
so far to have engaged in serious, wide-ranging
consultations with Iraqi society regarding their own
governance, it is unlikely to change any time soon.
Crucially, the mandated "consultations" are to be
conducted equally between the existing US-appointed IGC
and the US occupation authority itself - thus insuring
that the IGC will remain either fully in place or with a
self-selected successor body to replace it. The role of
the UN is dismissed as "perhaps" being included in
consultations.
The IGC holds on to power
Since the constitution says nothing about how
the interim government will actually be selected, the
unspoken understanding is that the IGC - perhaps
enlarged by additional US-selected individuals, perhaps
in its current form - will remain the center of Iraqi
authority. Many current members of the council have made
clear their desire to hold on to power, knowing that
(since most of them spent the past decade or two or
three outside of Iraq) they would be unlikely to win any
kind of election. As a result, the UN and others have
suggested that the interim government operate with a
very narrow mandate - essentially "keeping the lights on
and paying the bills of the street-sweepers".
Specifically, the suggestion was to bar the interim
government from making decisions regarding major
economic or foreign policy issues. However, the
constitution as drafted provides no limits on what
issues the interim government, in whatever form it
takes, may decide - including continuing the
US-initiated privatization policies, negotiating major
replacement oil contracts, and most significantly,
signing a Status of Forces Agreement with the US to
provide an Iraqi "invitation" to the 100,000+ US troops
who will remain in Iraq.
Federal
ambitions The constitution calls for a federal
system of government, in which, despite language to the
contrary, the sectors are almost certain to be
determined by Iraqis' ethnic and religious identity. The
division of Iraqis into Shi'ite, Sunni, Kurdish,
Turkoman, Assyrian and Christian identities is the basis
for the US-created Iraqi IGC, and is the likely basis of
the division of power within a "federal" Iraqi system.
This causes three major problems: 1) There is no
representation for Iraqis who identify first as Iraqi
citizens, and only secondarily as Shi'ite, Kurds, or
whatever. 2) The ethnic/religious quotas assume that all
Kurds, Shi'ites, Sunni, Assyrians, or others represent
monolithic political blocs. 3) A system based on ethnic
or religious sectoral interests is inherently unstable,
in most cases giving minority and majority populations
too little or too much power, and undermining national
identity as Iraqis. Lebanon's years of confessional
(religiously determined) division and war demonstrates
the potential dangers.
The constitution, for
example, would give Kurds, who represent about 20
percent of the population, a veto over acceptance of the
future permanent constitution. This would take place in
the context of Kurdish opposition to any future
constitution, since Kurds constitute the majority in
three provinces, and the interim constitution insures
that a law, or permanent constitution, would fail if it
is opposed by a majority of people in at least three
provinces.
Along with the problem of forcing a
religious or ethnic identity for people wanting to
assert and build a national Iraqi identity instead, it
is not at all clear that most Iraqis support the kind of
federal system imposed in the constitution. There is
little indication that any serious effort was made to
consult with large sectors of the Iraqi people before
determining such a drastic framework.
The
constitution creates a federal system, but leaves vague
what powers remain with the national government and what
devolves to the regions. The central government is given
responsibility for foreign policy, national security,
fiscal and monetary policy, and control of oil and other
natural resources. But there is no limit identified as
to what powers a "federal region" may assert. The
Kurdistan Regional Government, the only federal region
identified, is to have broad, yet vaguely defined powers
of self-government: legislative and judicial
independence, and the Kurdish Peshmerga militia
to remain in force. The Kurdish government will also
"retain regional control over police forces and internal
security", implying that the Peshmerga could
remain a permanent force independent of the central
Iraqi government.
Rights and
wrongs The constitution asserts a set of
individual political rights, as well as economic and
social rights significantly advanced, though not
absolutely unprecedented, in the Arab world. Those
rights include freedom of speech and association,
assembly, religion, travel, the right to demonstrate and
strike, access to the courts, open trials and the
presumption of innocence. There are prohibitions against
unlawful arrest, slavery, torture, and trying civilians
before a military court. However, the prohibition on
establishing "special or exceptional courts" is already
undermined by the special court established to try
Saddam Hussein and other accused war criminals.
In terms of economic and social rights, the
constitution includes "the right to security, education,
health care and social security", and states that the
government agencies "within the limits of their
resources" shall strive to "provide prosperity and
employment opportunities to the region".
The
text calls for a "goal of having women constitute no
less than one-quarter of the members of the National
Assembly" that will be selected [by as-yet-undetermined
means] to draft the final constitution, and states that
"all Iraqis are equal in their rights without regard to
gender, sect, opinion, belief, nationality, religion, or
origin, and they are equal before the law".
While the US has launched a major propaganda
campaign regarding the "unprecedented in the Arab world"
nature of these guarantees, in fact a number of Arab
states actually have similar constitutional rights. The
problem comes - as is the case in the US, Europe and
elsewhere - not so much in the written law as in its
implementation. In this regard, Iraq is unlikely to be
very different.
The relationship between
religious law and individual liberty remains unclear.
Islam is to be relied on as "a source" for Iraqi laws,
and the constitution states that no law may contradict
either Islamic law or the guarantees of individual
rights. This was a compromise between those urging that
Islam be regarded as "the source", implying that Islamic
Sharia law should be the sole basis for new laws, and
those, especially women, concerned that Islamic law
would undermine the constitution's individual rights.
Islam was also identified as the state religion of Iraq
(similar to most Arab constitutions), though religious
freedom is included in the individual rights. US
officials, including Bremer, had already announced they
would veto any constitution that in their view would
make Iraq an "Islamic state".
The new document
does not address crucial questions even for the interim
period itself. It does not identify the means of
choosing the new interim government beyond
"deliberations and consultations". It leaves undefined
the future legality and power of sectarian militias
existing in a legal vacuum. The language states that
militias and armed factions outside of the to-be-created
transitional government "are prohibited, except as
provided by federal law", implying that a law drafted in
the future granting the Kurdish Peshmerga forces
or a Shi'ite militia or anything else would be deemed
within the constitutional framework.
Phyllis Bennis is a Fellow at the
Institute for Policy Studies and is a contributor to
Foreign Policy in Focus.
