The Iraqi Interim Constitution: An Overview

 March 11, 2004

by Robert Nolan

This week's long-awaited signing of an interim constitution by the Iraqi Governing Council (IGC) offered a glimpse into what its signatories called a "new Iraq", and gave temporary respite from the ongoing violence that has defined the nation since its liberation by American-led forces nearly a year ago. However flawed the temporary document may be, its signing was viewed by most as the first official step towards Iraqi sovereignty - a goal backed from Washington to Baghdad and pretty much everywhere in between.

Drawing heavily from the liberal constitutions of Western nations, Iraq’s "Law of Administration" until a permanent constitution can be drafted by elected officials includes a bill of rights, outlines the role that Islam will play in the new Iraq and establishes three distinct branches of government that will rule the federal state.

While the formula may sound familiar, the challenges confronting the founding fathers of the new Iraq, as well as those who hope to push it along, are less so. Satisfying the demands of majority Shiite leaders, federalist Kurds seeking guarantees on autonomy and curbing ongoing violence are just a few. For those representing the various Iraqi factions, however, this week was an inaugural introduction into the democratic process known as compromise. "Not everybody got what they wanted," said Coalition Provisional Authority chief Paul Bremer. "But that is the way democracy works."

Bill of Rights

Most importantly, Iraq’s interim constitution will govern the affairs of the war-torn nation from July 1, when the U.S.-led Coalition Provisional Authority (CPA) will hand over power to a sovereign Iraq, until an elected assembly can draft and pass a permanent constitution. Elections for Iraq’s new legislative body, known as the National Assembly, “shall take place by 31 December 2004 if possible, and in any case no later than by 31 January, 2005,” according to an English version of the document posted on the CPA Web site. Once elected, the National Assembly, of which women will make up 25 percent, will be largely responsible for the creation of two other distinctive government bodies: “The Presidency Council; the Council of Ministers, including the Prime Minister; and the judicial authority.”

The interim constitution also outlines an extensive 13-article bill of rights, which some say goes even further than those set forth in the American Constitution. Article 12 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. Discrimination against an Iraqi citizen on the basis of his gender, nationality, religion, or origin is prohibited. Everyone has the right to life, liberty, and the security of his person. No one may be deprived of his life or liberty, except in accordance with legal procedures. All are equal before the courts.”

Such provisions embrace full rights for women and the return of Iraqi refugees who fled the Saddam Hussein regime, and states that income from Iraq’s natural resources will be distributed equally among the federation so that all may benefit from Iraq’s wealth. “People may say this was borrowed from the Western world and does not have any deep roots in Iraq,” said Sunni council member Adnan Pachachi, in addressing the rights of the new constitution. “My answer to that is that these are universal rights,” he told Bloomberg News. “It is a fairly liberal bill of rights,” said Feisal Istrabadi, a senior adviser to Pachchi who helped write the draft. “Which on the other hand does not attempt to divorce itself from the cultural and social milieu in Iraq.”

The Role of Islam

The constitution also declares Islam as the official religion of Iraq. Article 7 (A) states that, “Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice.”

While some Shiite groups called for an even stronger inclusion of Islam, others contend that the language relating to Islam in the interim constitution is cause for concern. “The troubling part of that passage really is a provision that no law may be passed by the national parliament which is contrary to the Islamic legal code,” said Juan Cole, a professor of Middle East history at the University of Michigan. “The Islamic code can be interpreted in many different ways. But if you had authorities who were more fundamentalist in power, they could actually use that provision to attempt to circumscribe many of the liberties specified elsewhere in the document,” he said on the News Hour with Jim Leher.

Other analysts, however, proclaim that the law carries more symbolic weight than legal power. “Absent any structure that has the authority to issue authoritative interpretations of Islam, the article by itself will have little impact on the Iraqi legal order,” writes Middle East Institute Adjunct Scholar Nathan Brown in his commentary and analysis of the document. “It may at most lend symbolic support to those who call for a greater measure of Islamic legal influence.

Kurdish Autonomy and Shiite Concerns


The most widely reported obstacle to this week’s signing was a last minute refusal to take part by Shiite leaders, led by Grand Ayatollah al-Sistani, over a provision in the constitution that they say gives unfair advantages to Iraq’s Kurdish faction. The provision, outlined in Article 61, states that the general referendum on a permanent Iraqi constitution “will be successful and the draft constitution ratified if a majority of the voters in Iraq approve and two-thirds of the voters in three or more governorates do not reject it.”

The Kurds of northern Iraq -- who lived in a self-governed region protected by no-fly zones from the end of the Gulf War in 1991 until last year – hold exactly three governorates under the current system, giving them, in effect, veto power over any new constitution. “This law places obstacles to arriving at a permanent constitution for the country that preserves its unity and the rights of its people, in all their ethnicities and sects,” said al Sistani, according to al Jazeera. “Any law prepared for the transitional period will not have legitimacy until it is approved by the elected national assembly.”

Al-Sistani’s long support for direct elections stems from the fact that Shias are the majority ethnic group in Iraq, and could easily consolidate power through elections. Al Sistani “drove home the point that the Shia have no fear of elections and are, in fact, eager for them,” write analysts at Stratfor.com. “This is intended to make it clear to the Kurds and Sunnis that whenever the election takes place -- and regardless of the rules – they will have to accommodate the Shia. And so will the Americans, al-Sistani is saying.”

The minority Kurds, on the other hand, were mostly ecstatic with the outcome of the interim constitution, which allows them to retain a certain amount of their long-desired autonomy. This includes, according to The Economist, the ability to “maintain a militia separate from the Iraqi national army.” “The Kurdistan leaders have the right today to stand tall before their people,” said Massoud Barzani, a Kurdish leader who sits on the IGC, in the International Herald Tribune. “This is the first time that we Kurds feel that we are citizens of Iraq.”

Still, many point out that the issue of Kurdish autonomy is far from resolved. “The degree to which the Kurds will retain a certain amount of autonomy from Baghdad still has not been worked out. This document simply recognizes the status quo and puts off the negotiations about that until next year,” said Juan Cole of the University of Michigan. “We had in January riots in Kirkuk, a northern city, over the possibility that it might be joined to the Kurdish provinces -- that hasn't been resolved.”

Security and the U.S. Role

Hovering over Iraq’s democratic ambitions, of course, remain vital issues of security. No constitution, experts say, can take hold until Iraqi insurgents and terrorist groups are brought to heel by a coordinated and sustained effort. Indeed, ten rockets were fired on the compound where the signing of the interim constitution was to take place last week, and recent attacks on Shiites suggest that those who hope to deter a democratic transition seek to do so by fomenting a civil war.

Skeptics and realists alike also point out that other issues inadequately addressed in the interim constitution -- such as a special court established for war criminals and the role the U.S. will play in Iraq following the handover of power – are bound to arise again in the near future. “All of today’s difficult issues, such as Kurdish autonomy and the role of Islam, will resurface. So too will the balance between proportionate representation in government (as advocated by the Shias) and equal representation for all ethnic groups (as pushed by the Sunnis and Kurds). America will have no official say in the permanent constitution, though it will doubtless hope that many of the liberal values written into the interim document will have become indispensable by then,” writes The Economist. “It is one thing to draft a document with a planned lifespan of a year or two; forging a constitution for all time, and having it approved by voters, will be quite another.”


Source:Foreign Policy Association.




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