Iraq's Interim Constitution:
The Objectives and Future Scenarios
by Hesham Nasr
On June 30, 2004, a "new Iraq government" will emerge to "administer" the daily affairs of the state and help pave the road for an elected parliament, the adoption of a permanent constitution, and a government by early 2005. These objectives limit the interim appointed government from making any long-term decisions that might impact or hinder the work of the forthcoming elected bodies. But what role does the interim administrative law play in this transitional process and to what extent is it an interim law?
The Bush administration's early declared objectives in Iraq were to build a model state for democracy and modernization in the Middle East, hoping for a domino affect vis a vis the other countries in the region. U.S. officials believe that democracy will permeate Iraq and that spread in and of itself will promote-or, rather, radically change-the image of the United States in what many call a battle of minds and hearts. Unfortunately, the new Iraqi transitional administrative law, despite its positive progress with regard to civil liberties, might itself prove to be a source of unrest and destabilization in Iraq and throughout the Gulf region.
So let's examine the new Iraqi transitional administrative law in order to assess the potential consequences and the various scenarios for a post-Saddam Hussein Iraq. In light of the continued violence and resistance in Iraq, the question of whether the declared intentions and objectives will be achieved through this process is a critical one.
A constitution is a document that describes a country's identity, values, principles, institutions, governance system, legal systems, and the sources that inspire the whole process. Accordingly, constitutional rules are frequently basics that give way to interpretation by future generations. It cannot be fully detailed since it is not a law or a regulation. It should include the principles and the aspirations of a nation.
Furthermore, a constitution represents a long-standing basic document upon which all legal, political, economic, and judicial regulations and institutions will be built. Unlike other laws, regulations, and policies, a constitution is not a document that encourages amendments and revisions whenever a new government or parliament is in charge. Rather, it represents the wisdom and heritage of a nation to preserve and pass on to other generations.
Consequently, the vital question to be raised is: who should draft this basic document? Undoubtedly any nation in transition can build upon experiences of other countries that share some similarities. Nevertheless, the citizens of each nation are the ones who should choose what works for them simply because they are the ones who know best the heritage, aspirations, values, norms, and customs of their country.
Iraq's newly drafted document is called "Iraq's interim transitional administrative law." In reviewing the document one cannot avoid raising the following question: does this basic law intend to establish order in Iraq and pave the way for an elected body to draft a constitution for the land or is it meant to be in itself a final constitution, as many in the media have referred to it? The answer to this question might clarify other questions which have been raised regarding the future of Iraq.
If this document is indeed a basic law that intends to pave the way for the upcoming elections, then most of its articles are likely irrelevant, since the entire document represents the opinion of nonelected members appointed by the occupation authority. On the other hand, if it is meant to be a final constitution for Iraq then it has many shortcomings besides the fact it's been drafted by a nonelected body.
Neither the Coalition Provisional Authority (the temporary governing body designated by the United Nations as the lawful government of Iraq until such time as Iraq is politically and socially stable enough to assume its sovereignty) nor the twenty-five member Interim Governing Council has the legal authority or power to make decisions relating to the future of Iraq. Furthermore, what powers the IGC does have depends on the whims of the CPA administrator, U.S. Ambassador L. Paul Bremer III, who has the veto power over any of the council's decisions. This alone would exempt the document from being a constitution either interim or final.
How provisional is the provisional law?
Article 1 states that the document is a "Law of Administration for the State of Iraq for the Transitional Period." Article 2 A stipulates that this transitional period is from June 30, 2004, until "the formation of an elected Iraqi government pursuant to a permanent constitution as set forth in this Law, which in any case shall be no later than 31 December 2005, unless the provisions of Article 61 are applied." Accordingly, this is a provisional document intended to serve for a transitional period, but is this truly the case? When we move to the exception provided in Article 61, serious questions arise as to just how provisional this law is.
According to article 61, the draft of the permanent constitution will be submitted as a draft to the Iraqi people for approval no later than October 15, 2005. The constitution will be adopted if the majority of voters in Iraq approve it, provided two-thirds of the voters of three states don't reject it!
Article 53 says that there are eighteen states in Iraq, six of which are under the Kurdish authority. Furthermore, Article 53 recognizes the existence of the Kurdistan Regional Government as the official government for the six states of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala, and Neneveh. Consequently, if the majority of Iraqis accept the constitution while two of three Kurdish states reject it-which corresponds to one-half of the Kurdish voters and 10 percent of the Iraqi population-the constitution will never be adopted and the provisional law will remain indefinite, unless the 90 percent majority accept the terms of those 10 percent dissenting voices.
We can conclude, then, that this "transitional" document might turn into the de facto permanent constitution of Iraq as an agreement over its contents would be unfeasible. This might explain why it has been drafted in such detail as to go beyond the mandate and legitimacy of the nonelected council appointed by the occupation authority. With this in mind, we can proceed to examine the context of the document.
It is customary to indicate in a constitution the identity of a nation, its heritage, and civilization. The history of Iraq goes back 5,000 years, and its Muslim/Arab heritage 1,400 years. Baghdad was the capital of the Abbasid state that ruled all the Middle East and most of North Africa. The Iraqi population is around 80 percent Arab and 97 percent Muslim.1 However, in the new transitional administrative law, Iraq is not an Arab state.
According to Article 7 of the transitional administrative law, Iraq is no longer an Arab country; rather, it is a multinational nation where the Arab people in it belong to the Arab nation. A comparison between the old Iraqi constitution of 1990 and the new interim document is vital to explain the difference. The old Iraqi constitution reads in Article 5:
a) Iraq is a part of the Arab Nation (b) the Iraqi People are composed of two principle nationalisms: the Arab Nationalism and the Kurdish nationalism. (c) This constitution acknowledges the national rights of the Kurdish People and the legitimate minorities within the Iraqi unity.
The identity of Iraq as an Arab country cannot be changed by a mere provision. Iraq is a founding member of the League of Arab states and its membership in all international organizations recognizes this identity. Its removal in the new interim document is quite questionable, to say the least, in its effects and the intentions behind it.
The Kurds as a minority have the right to insist on preserving their identity and their own cultural heritage. There is also an important need to rebuild trust between all the Iraqis. We cannot ignore or forget the brutal acts the former regime committed against the Kurdish people. But we should not accept what some are trying to suggest: that the practices of the old regime were of a racial nature between Arabs and Kurds or Sunnis and Kurds. Saddam Hussein's brutal rule affected every home in Iraq and he wasn't selective as to who deserved his wrath. One of the most famous historical leaders of the region was Saladin, who was a Kurd. Saladin gained power in Egypt (an Arab country) and started a war against the crusaders. If this demonstrates anything it should show the common and shared heritage of Kurds and Arabs. The new Iraq transitional administrative law is actually deepening a racial division and rejecting any attempt of unity in Iraq.
This ironically represents a good example for how the strategy of winning the hearts and minds of 80 percent of the Iraqi population is being misguided, and how the Iraq example as a model for democracy and modernization is becoming a mirage.
Article 4 of the interim law describes the governance system as "republican, federal, democratic, and pluralistic, and powers shall be shared between the federal government and the regional governments, governorates, municipalities and local administrations. The federal system shall be based on geographic and historical realties and the separation of powers, and not upon origin, race, ethnicity, nationality, or confession."
While deciding to break the unity of the country and changing it to a federal system is outside the mandate and authority of a nonelected council, the assertion that this won't be based on race or ethnicity is commendable. Nevertheless, this assertion is neither possible nor really achievable in today's Iraq.
Article 53 reinforces racial and ethnic division by recognizing Kurdistan Regional Government as the official government of the Kurdish territory and elaborates that the usage of government here means the Kurdistan National Assembly, the Kurdistan Council of Ministers, and the regional judicial authority in the Kurdistan region. Furthermore, Articles 26 and 54 provide the supremacy of the federal laws over any laws issued from any state except for Kurdistan, where the local government can alter these laws and retains the rights to impose taxes and fees and keep control of internal security and police.
Moreover, this supremacy of the Kurdish government in governing its internal security apparatus as an independent part of Iraq raises questions as to the interpretation of Article 27, which prohibits the creation of any militia that isn't under the control of the provisional government, unless permitted by federal law. The Kurds have kept the Bishmiraka militia all this time and they aren't subject to federal law, which at the same time gives them the right to have internal security troops in addition to police.
The federal government has been weakened even further by Article 52, which clearly states that the federal system should inherently forbid the federal government from having a central authority. Ironically, the drafters of this article found themselves in a position where they had to explain their rationale. They stated that, through breaking the central government and allowing local authorities in every territory and state to gain power, a united Iraq will be created.
How federal is this federal system? How are race and ethnicity being used? What kind of unity can be founded on a constitution that racially and ethnically divides the country? What kind of unity and cooperation can be forged between states bearing that are divided by religion, ethnicity, and the different external alliances between each group and foreign external powers?
From this analysis, it is apparent that a Kurdish state, replete with oil reserves, is being established outside the authority of the Iraqi federal government and the rest of Iraq. This state will be surrounded by a hostile Turkey, Syria, Shiite homeland Iran, and the rest of Iraq, which will undoubtedly view it with suspicion as a separate entity for which the United States acts as protector. The interim basic law as it stands encourages such separation and calls for a larger autonomy that might lead to independence or major conflicts.
Based on my reading of the so-called basic law, I don't foresee seeds toward a future united and democratic Iraq being planted. We can only hope that this won't lead to the Balkanization of Iraq. If this were to happen, a dangerous spiral leading to regional conflict may spread, creating chaos and instability.
Article 3 provides that this basic law cannot be amended unless three-quarters of the National Assembly approves it and the Presidency Council unanimously approves it. Article 36 establishes the Presidency Council as consisting of a president and two deputies elected by two-thirds of the National Assembly-not directly elected by the people. The law obliges the council members to act unanimously. The choice of two deputies is intended to have the Presidency Council composed of the three major ethnic and religious parties: Kurds, Shiite, and Sunni. The "unanimous" requirement paralyzes the council and makes any amendments to the current law inconceivable. Hence, it further confirms the point that this basic law is not meant to be provisional or interim.
Article 3 goes further to prohibit any amendments related to section two of the law. Section two introduces a very interesting provision. Article 21 prohibits the provisional government or any administrative or executive body from interfering "with the right of the Iraqi people to develop the institutions of civil society, whether in cooperation with international civil society organizations or otherwise." In an Iraq in transition, this article, while showing remarkable progress, could prove to be problematic in the short run.
Another issue of sovereignty in Iraq is that of the military. Article 59 (B) reads:
Consistent with Iraq's status as a sovereign state, and with its desire to join other nations in helping to maintain peace and security and fight terrorism during the transitional period, the Iraqi Armed Forces will be a principal partner in the multi-national force operating in Iraq under unified command pursuant to the provisions of United Nations Security Council Resolution 1511 (2003) and any subsequent relevant resolutions. This arrangement shall last until the ratification of a permanent constitution and the election of a new government pursuant to that new constitution.
Moreover, 59(c) empowers the provisional government to make any binding international agreements related to the multinational forces under the unified command. Note that 59 (c) does not provide a time limitation to this agreement or specify any limitations to the provisional government in binding the elected government with any treaties related to foreign forces operating in Iraq, either from a time perspective or from a quantitative perspective as to the number of troops or their missions and authorities.
Accordingly, the basic law ensures limited sovereignty, empowers the Interim Governing Council to legalize what started as an occupation authority, and makes any future agreements binding to the new government in a way that goes beyond any mandate or powers the council has from a legal perspective. It has been reported lately that the newly established Iraqi Armed Forces refused to carry out orders by U.S. troops in seizing the city of Falluja. As insurgent operations continue against the coalition forces, ordering the new Iraqi Armed Forces to suppress these actions could intensify internal fighting among Iraqis, which would have far-reaching consequences for Iraq's future stability.
In the middle of the stormy events Iraq is facing, this interim basic law represents a seed for future conflicts across ethnic and religious lines. A change in the structure of the transitional administrative law is highly inconceivable. With all the tensions this will bring, we can assume that an independent sovereign Iraq may be a far off dream. If such conflict were to arise it would draw many foreign players to a wounded Iraq, all supporting different allies.
By the end of the document's signing ceremony, IGC member Adnan Pachachi said, "This is a great and historic day for Iraq; we have produced a document we can justly be proud of."2 Shortly after, Shiite council member Ibrahim Jafari3 read a proclamation that he said was endorsed by twelve of the thirteen Shiite members on the council, calling for renegotiation of parts of the document. "Our signature is linked to our reservations . . . which must be addressed in the future," said Ahmed Chalabi, one of the initial five Shiite dissenters.4 These reservations are not found anywhere in the interim basic law, begging the question: if the majority of the council want to renegotiate parts of the document, who drafted it?
The internal contradictions of this document are building. It is hard to predict what the new Iraq will look like. The United States and Britain are finding themselves in a real quagmire and without an exit strategy. Iraq's instability and the continued violence doesn't bode well for a democratic and unified Iraq. One can only hope that this bleak scenario of a civil war won't occur and that Iraq will regain its independence as a unified sovereign and democratic country that can become a local model for modernization and stability.
2 Council member and a key architect of the charter. Washington Post http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A39476-2004Mar8¬Found=true
3 Council member and one of the signatories.