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Assembly faces 18 difficult
steps
By Sami Moubayed
The mood is tense among the 71 members of
the constitutional assembly attempting to draft a
new constitution for Iraq before an August 15
deadline. A series of stumbling blocks has delayed
the work of the assembled politicians, prime among
the obstacles being religion and federalism.
In all, 18 unresolved points are being
discussed by representatives of the country's
Shi'ites, Sunnis and Kurds, who have been debating
for three months already. If they succeed in
coming up with a constitution, parliament will
ratify it, and it will then be submitted for a
referendum two months later, in mid-October. If
voters approve, new elections will then be held by
mid-December.
Success would also mean that
the US could start to withdraw some of its 140,000
troops by early 2006, and Iraqi Prime Minister
Ibrahim Jaafari and US President George W Bush
would be able to tell the world that democracy,
rather than terrorism, in post-Saddam Hussein
Iraq, worked after all.
If the
constitutional assembly fails, according to the
interim Iraqi constitution (Transitional
Administrative Law - TAL), then Jaafari would
resign, something that many parties involved,
including the Americans, do not want to happen.
Failure of this crucial step in creating a
democratic Iraq would only fuel insurgents, giving
them more reason to create havoc in Iraq and
undermine the new leaders of Baghdad and their
sponsors in Washington. A last measure would be
getting three-quarters of parliament to amend the
TAL, to avoid Jaafari's resignation in the event
that the assembly failed to meet the August 15
deadline.
Among the unresolved points are
the following:
1) The name of
Iraq. Currently, three options are on the
table, two of them proposed to show that this new
Iraq is different, even in name, from the one that
existed under Saddam. The Sunnis want it to be
called "The Republic of Iraq" (Jumhuriyyat
al-Iraq). The Kurds want to name it "The Federal
Republic of Iraq" (al-Jumhuriyya al-Iraq
al-Itihadi). The Shi'ites want it to become
"Islamic Federal Republic of Iraq" (al-Jumhuriyya
al-Iraqiyya al-Itihadiyya al-Islamiyya). The
Sunnis are sticking in principal to the name that
existed since the revolution of 1958, which
toppled the monarchial rule of what was once known
as the Hashemite Kingdom of Iraq. The Kurds insist
on referring to a federation, since their target
is maintaining an autonomous region in Kurdistan.
The Shi'ites want an Iran-style theocracy,
explaining why they chose such a name for Iraq.
Most probably the chosen name will become
al-Jumhuriyya al-Iraqiyya (The Iraqi Republic)
because it minimizes division, representing
everyone and giving no dominance to one party over
the other.
2) Religion. Some
parties want Islam to be the source of all
legislation in Iraq while others want Islam to be
"one of the sources" and not "the source" of
legislation in Iraq. A third party does not want
Islam, or any religion, to be the driver behind
law-making in the new Iraq. The first option is to
create a constitutional clause specifying religion
saying: "Islam is the religion of the state and
the source of all legislation. It is inappropriate
to create any law that contradicts with the
principals of Islam." The second option reads:
"Islam is a main source of legislation (not the
source) and it is inappropriate to create any law
that contradicts with its principals." The third
option reads: "Religion is the main source of
legislation and it is inappropriate to create any
law that contradicts with its principals. This
constitution guarantees the Islamic identity of
Iraqi citizens, whose majority are Shi'ites and
Sunnis." The Shi'ites, who are led by clerics like
the Grand Ayatollah Ali al-Sistani and Abd al-Aziz
al-Hakim, leader of the Supreme Council for the
Islamic Revolution of Iraq, want a Iran-style
system and insist that Islam be the only and main
source of government.
This topic has
received much attention from the Western and
Arabic press. The Kurds, who are mainly a
non-religious political group, favor the current
wording of the TAL, which says that Islam should
be "a source" of legislation and not "the source"
of legislation in Iraq. Their claim is supported
by secular politicians and female activists, who
fear that applying the strict laws of Sharia
(Islamic law) to government will hamper their
daily lives, freedom and political rights. If the
clerics overtake parliament, these women argue, or
control the judiciary in the years to come, they
would kill the women's emancipation movement in
Iraq.
Under Islamic law, for example,
women inherit less than men and are required to
wear headscarves. Practices that these women
oppose, such as polygamy and arranged marriages,
will become more common. A prime concern is that
divorced women would not be permitted to keep
custody of their male children beyond the age of
two, while female children cannot be kept with
their divorced mothers beyond the age of seven.
This movement for women's rights is spearheaded by
Minister of Women's Affairs Azhar al-Shakley who
has petitioned the constitutional assembly to make
women's rights a priority in drafting the new
legal document for Iraq. Other women lobbying for
women's rights, and calling on the assembly not to
make Islam "the source" of religion in Iraq, are
Ahlam Letta, a professor of law, Pascale Warda, of
the Assyrian Women's Union in Iraq, and Safia
Suhayl, Iraq's ambassador to Egypt.
These
women argue that if Islamic law is applied, it
would kill any provisions for gender-equality in
the new constitution since in several cases, such
as inheritance, women are not equal to men
according to Islamic law. These women have not
forgotten that Iraq was the first country in the
entire East to grant women the right to vote, as
early as 1948. The second country in this domain
was Syria, which did the same in 1949. Women
enjoyed many rights under the monarchy (1921-1958)
and under the consecutive military regimes that
began in 1958. They flourished during the heyday
of liberalism in the 1960s, and were treated as
equals under Saddam. Only when Saddam fell in 2003
did they begin to lose power as the Islamists
controlled the Iraqi street, abducting, beating
and harassing women activists. Many of the liberal
women, including Christians, are now forced to
wear headscarves in the streets to avoid
recognition by the Islamic fanatics. According to
TAL, one-quarter of the Iraqi National Assembly
should be women, and women activists are wishing
to increase it to 40%. They also want it to apply
not only to parliament, but also to all sectors of
government office.
While Islamic law will
almost certainly be mentioned in the constitution,
due to the strong lobbying of the Shi'ites, it is
yet to be seen if this mention is going to be
ceremonial, or tangible in the political life of
Iraq. It all depends on who will be the ones
guarding Islamic law. Will it be seculars like
Ahmad Chalabi and Iyad Allawi, or leaders of
Islamic political parties like Jaafari? This is
where parliament becomes important. If parliament
is packed with Islamists and Islamic law is
mentioned in the constitution, Iraq could easily
be transformed into another Iran. Yet a
counter-argument would be that even if Islam is
mentioned as "a source" of legislation, there
would be many loopholes through which the
Islamists could make their way into the
decision-making process. They can become judges on
the constitutional court, for example, and impose
their will on the judiciary.
3)
Composition of the Iraqi people.
Again, this topic creates agitation between Kurds
on one front, and Arabs (Shi'ites and Sunnis) on
the other. The first option for dealing with the
composition of the Iraqi people reads: "The Iraqi
people are composed of two main nationalisms, Arab
and Kurdish." This statement also recognizes that
smaller communities exist in Iraq. The second
option reads the same as the first, but makes
specific reference to all the minor groups and
communities in Iraq. The third phrase is more
vague, which pleases some and angers many by not
specifically referring to any of the ethnic groups
in Iraq: "The Iraqi people are composed of
different nationalisms, religions and sects."
4) Language. The Arabs, who
are a majority, want to keep Arabic as the only
official language of Iraq. The Kurds want to add
Kurdish to Arabic. The Kurdish statement reads:
"The Arabic language and the Kurdish language are
the two official languages of Iraq." The Arabic
proposal reads: "Arabic is the official language
of Iraq. The Kurdish language, in addition to
Arabic, is the official language in Kurdistan."
5) The identity of Iraq.
This is a major obstacle, with the Arabs seeing
Iraq as part of the greater Arab homeland, the
Kurds seeing it as a part of the greater Kurdish
homeland, and the Shi'ites seeing it as part of
the greater Islamic community. The Sunnis favor
the wording: "Iraq is a founding member of the
Arab League." Another option is: "Iraq is part of
its Arab and Islamic surrounding." The third is:
"Iraq is a country with many nationalisms and the
Iraqi people are an inseparable part of the Arab
World." The final option, which is most likely to
surface, suggests that no identity be mentioned
for the new Iraq that is being created.
6)
Vice presidents. Of lesser
importance, the assembled leaders have not decided
whether to specify that the president of the
republic should have one deputy, two deputies or
no deputies.
7) Ministers.
Another topic of lesser importance, the Iraqis are
deciding whether cabinet ministers can also be
parliamentary deputies, or whether it should be
illegal for a politician to hold dual office as a
deputy and minister simultaneously.
8)
Natural Wealth. Again, this creates
problems, especially for the Kurds, who are
demanding autonomy over Kirkuk, which is
essentially an oilfield. To do that, they have
been supporting mass Kurdish migration to Kirkuk,
which today is occupied by a combination of Kurds,
Sunnis and Shi'ites. The first draft for natural
wealth reads that "Natural wealth is the property
of the province (where it is found). The province
administers them and gives a share to the federal
government." This, for obvious reasons, is the
Kurdish draft. The second option reads: "Natural
wealth is the property of the Iraqi people and
they are administered by the federal government. A
portion of natural wealth is allocated for the
province in which this natural wealth is found."
The third proposal reads: "The government is
responsible for all natural resources, in
coordination with the province in which it was
found. A portion is allocated to the province (by
the government)."
9) Union.
The Kurds favor including a statement that
reads: "Union (with the rest of Iraq) is optional"
while the Shi'ites and Sunnis want the statement
to emphasize the unity of Iraq's land and people.
The Kurds will not abandon the independence they
achieved, with the help of the US, in 1991. If
their autonomy is maintained in the north, this
would enrage the Shi'ites, who are already
demanding autonomy for themselves in the south.
The Sunnis, stuck in the middle, are opposed to
both solutions, claiming that if autonomy is given
to the Kurds and Shi'ites, they the Sunnis would
be left with "the sands of Anbar", in reference to
the largely desert Sunni province in the west that
unlike the Kurdish north or Shiite south, has
little oil.
If the Kurds and Shi'ites
hoard the country's oil, the Sunnis fear that this
would impoverish them, ending the prosperity they
enjoyed during the 30 years of Saddam's rule.
While the Sunnis believe that autonomy in
Kurdistan is a fact that cannot be ignored and
that changing it would be fighting history, they
are opposed to giving the Shi'ites autonomy in the
south. They simply do not want to decentralize the
rest of Iraq. Had the Sunnis been foolish, they
could have accepted giving the north to the Kurds,
the south to the Shi'ites and kept central Iraq
for themselves. The Sunnis, who are among the
wisest in Iraq these days, are not joining the
federalism trend and demanding autonomy for
themselves in central Iraq. They still perceive
Iraq as one nation, part of the greater Arab
World. The Sunnis, who are Arab and Iraqi
nationalists at heart, refuse to view themselves
in small sub-national terms and cannot imagine
themselves as part of anything but the "greater"
Iraq that was created by King Faysal I in the
early 1920s.
10) The
presidency. One party wants the president
to be the ultimate executive power in Iraq, in
addition to being commander-in-chief of the Iraqi
army. This is backed by the Kurds, who have their
eyes set on permanent office at the presidency,
occupied currently by the veteran Kurdish
statesman Jalal Talbani. The Sunnis, who dominated
leadership posts since the early 1920s and have
lost that status since 2003, also want a powerful
president - only, that is, if the presidency is
returned to them. The other parties, mainly the
Shi'ites, are arguing for a ceremonial president,
whereas executive powers are vested in the prime
minister, as is the case in Israel, for example.
Current premier Jaafari is a Shi'ite, as all the
upcoming premiers in post-Saddam Iraq are going to
be.
11) Dual nationality.
Some are arguing that dual nationality should be
prohibited, especially for officials in the
government. This is being vetoed by many
politicians who were long-time exiles under
Saddam, and who returned to Iraq in 2003 with
passports from Syria, Iran, Saudi Arabia, the US
and various European countries.
12)
Matters of personal status. There
are two options. One calls for the creation of a
common law for personal matters, to apply to
Iraqis of all religions. The other option calls
for creating particular laws in each community,
based on its religion and needs, to govern matters
of personal status, such as divorce, inheritance
and other issues that affect day-to-day life. This
option means, more or less, a religious-freedom
provision in the constitution, which says that
every family can go along with their lives
according to laws of their religion or sect, with
full protection from the state. For example, a
Shi'ite wanting to settle a matter in court will
take his case to a Shi'ite court, and not to a
civil court governed by civil law. To date,
matters of personal status have been handled by a
law, passed under president Abd al-Karim Qasim in
1959, which basically takes Islamic law and molds
it - very progressively - into a semi-secular law,
based on religion, but legislated by the state.
Another stumbling bloc facing the
constitutional assembly is the status of the
peshmerga, the militia of the Kurds. This
month, Kurdistan President Masoud al-Barazani said
that he accepted integrating the peshmerga
into the Iraqi National Army, conditioning,
however, that it served only in Kurdistan and not
in the rest of Iraq. The duty of the Kurdish
forces in the Iraqi army would be strictly to
protect Kurdistan.
Shi'ite leader Hakim
and Jaafari (also a Shi'ite) have curtly refused
Barazani's proposal, claiming that this is simple
window-dressing to keep the peshmerga
alive. Whereas in the new Iraq that is emerging,
no community should be permitted to maintain its
own militia. Military power, they told him, should
be and will be monopolized by the government.
Ghafour Makhmouri, a Kurdish politician, told the
constitutional assembly that Kurdish demands for
maintaining the peshmerga, making Kurdish
an official language, and taking Kirkuk, were all
"red lines that cannot be crossed". He added, "We
will not soften them - they are our minimum
rights."
An angry Barazani added: "As far
as we are concerned, whatever we demand (within
Iraq) is less than what we deserve. We have given
our blood. The current situation of Kurdistan is
the result of the blood of Kurdish boys and girls.
No one has been charitable to us. Of course, we
are grateful to them for ousting the regime of
Saddam Hussein. Nevertheless, while the entire
world was behind the Ba'ath regime, we were
fighting it (alone)." He added, "We are not carpet
sellers. We are patriots and peshmergas. We
have sacrificed our blood for the rights of our
people."
Barazani believes that the
carving up of Iraq, the appointment of a Kurd as
president, the making of Kurdish as an official
language, and maintaining the independence of
Kurdistan, at the expense of Iraq, is not enough
reward for his sacrifices during the Saddam era.
The selfishness of Barazani, and his insistence to
destroy the Iraqi identity of 1921-2003, proves
two things. One is simply that the years to come
will be more difficult than anybody imagined. The
Kurds do not want to live in Iraq. They do not
want to work with the Arabs in creating a new
Iraq. They want Kurdistan and do not care much
about the future of the rest of Iraqi or the Iraqi
people, so long as Kurdistan is maintained.
The Sunnis and Shi'ites, insisting to be
good patriots and nationalists, insist on keeping
the Kurds as part of the Iraqi national identity
and working with them for a new Iraq. The wisdom
of the Sunnis and Shi'ites, confronted with the
rashness of the Kurds, will make the task of
building a new Iraq virtually impossible. At the
end of the day, this is a constitution being
written by the Shi'ites, who dominate the
political process in post-Saddam Iraq and are
dominant in the new parliament. These Shi'ites,
powerful as they are, are making very important
and painful concessions to the Kurds, in fear of
having them on the offensive, and courting the
Sunnis, in fearing of having them walk out on the
constitutional assembly. Jihad al-Khazen, the
leading columnist of the London-based al-Hayat
newspaper, summed it all up saying: "Iraq, as we
knew it, is finished."
Sami
Moubayed is a Syrian political analyst.
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