The Iraqi Consitution: A Divider, not a Uniter

Mouna Naïm analyzes Iraq's draft Constitution for Le Monde

The Great Gap in the Draft Iraqi Consitution
LE MONDE | 09.09.05 | 13h49

An act presumed to be fundamental for the country took place when the final draft of the Iraqi Constitution was presented to Parliament. However, perspectives remain uncertain, even somber. Instead of uniting the Iraqi people around a common vision, the document of August 28th has deepened their differences.

Government and parliamentary officials were nevertheless smart enough not to put the text to a vote. Without a vote, informal discussions were able to continue in an attempt to bring about a convergence of viewpoints in order to give the document widest possible acceptance and to avoid its defeat during a popular constitutional referendum scheduled for October 15th at the latest.

But let’s take a look at the facts. The original schedule underwent innumerable delays. The drafting of the Fundamental Law required lengthy, drawn-out discussions among the leaders of Iraq’s political parties to iron out fundamental differences, inevitable in a multi-ethnic and multi-religious country, where certain Shi’a groups and the Kurds had particularly suffered under the former dictatorship. And the end of the day, the supporters of a secular republic were forced to compromise, those who wanted an Islamic state has to soften their demands, and those who wanted ultra-decentralized management of Iraq’s oil and gas resources had to accept some centralized control.

Unless it is amended, the draft Constitution is essentially a mish-mash of Kurdish and Shi’a demands. It provides for the creation of a “federal”, “parliamentary” and “democratic” republic where Islam is a main source of laws and no act of legislation may violate its principles nor those of a democracy. An unlimited number of governorates, having extensive executive, legislative and administrative powers, may be set up within the federal regions with little input form the populations concerned.

The central government will manage Iraq's natural wealth but with some prerogatives--as yet undefined-- granted to the regions which were the most harshly treated by the former régime. That is, Kurdistan and Shi’ite areas. Iraq as part of the “Muslim World” has been accepted, but not as part of the "Arab World". Only Iraq’s Arab people may claim that privilege. Arabic and Kurdish are recognized as official languages throughout the country.

Sunni Arabs in particular, but also some Shi’ite and secular personalities and factions, object to a federal system and instead favor large-scale administrative decentralization. They are prepared to recognize an autonomous Kurdish region in the north of the country, previously provided for but never implemented by a 1970 accord between the central government and Kurdish leaders and subsequently confirmed by the events of 1992 when the international community placed a quarantine on the former régime. Right or wrong, they are afraid of a joining of Iraq’s Shi’ite regions, which stretch from southern to central Iraq, and which, bordering on Iran, risk becoming a sort of extension or avatar of the Islamic Republic. In the central regions of Iraq, where Sunnis are the majority, there are no petroleum deposits and Sunnis fear that they will become the country's odd-man-out.

Whatever one’s judgment of Sunni objections and fears and even granting the best of intentions to the drafters of the Constitution, the document contains the seeds of division of Iraq along communitarian lines. It is a hybrid text, which juxtaposes federal regions and governorates which, able to unteather themselves, can benefit extraordinarily from administrative decentralization.

The text also seeks to mollify its objectors. But it is difficult to combine declarations of principle and democracy (the people are the source of authority and legitimacy of the law) with the assurance that Islam, which is spiritual dogma, will be the main source of legislation. Even if there is no provision to put in place a Supreme Guide to monitor institutions in Iraq, as is the case in Iran, isn’t the country left with the outline of a system which is a sibling of that of neighboring Iran whose contractions were bound to be exposed one day? Furthermore, it is hard to see how equality of all before the law and and before justice can accommodate itself with the freedom of each person to adhere to the tenets of his faith. Isn't that a way of introducing, with one foot in the door, religious tribunals?

More fundamentally, the question is raised of how a country, which since the 1960s has lived under one dictatorship or another, of which Saddam Hussein’s regime was the most cruel, can transform itself overnight into a decentralized state under a radical form of federalism in the absence of any democratic culture. Especially since the country remains under foreign occupation, no matter what label is affixed to the presence of the multinational force under US command.

Finally, wasn’t an interim Constitution more than adequate for a period during which the country might heal its wounds? Was it necessary at all costs to rush into drafting a Constitution to suit a schedule dictated by US considerations under the patronage of US Ambassador Zalmay Khalilzad and by pressures placed on President George W. Bush by the US public--spectacularly overriding interests of Iraq itself?