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Towards a Constitution?
An Overview of the Iraqi Case

27 July   |   2005   |   Subject  Middle East & North Africa (MENA)

Regardless of whether we supported the occupation of Iraq, and irrespective of our views about the justification offered by our political leaders for this war, it is quite clear today that the land of ancient Mesopotamia is in an ever-deepening quagmire. Two recent reports - from the Iraqi Ministry of Health, and the Iraq Body Count (comprising a volunteer group of academics and researchers) - suggested that around 25,000 Iraqis have been killed since the war began some two years ago. The daily news coming out of the country is toweringly distressing.

Constructive instability: it seems that this is one of the principal regional dogmas guiding US foreign policy in the Middle East today as it tries to pursue what the writer and political analyst Giles Dorronsoro described in Corriere della Sera last week as 'the high-risk strategy of democratic destabilisation of the Middle East region'. Robert Satloff, the executive director of the influential Washington Institute for Near East Policy, is one of the chief proponents of this strategy that consists of exploiting elements within society that are calling for change, supporting their actions by mobilising local and international media in their favour, inventing a figurehead behind whom they can unite and increasing international pressure on their protagonist powers.

Unfortunately, and like many other strategies to date, this approach has also set different groups in the country against each other. As Walid Charara wrote in his analytical piece in Le Monde Diplomatique in July 2005, the US has supervised the reconstruction of Iraq's political system on the basis of community and ethnic representation. In the process, it has stirred tensions between different interests. It may genuinely have wanted to introduce a relatively representative government, but the fact that legislative elections went ahead despite a massive boycott by the Sunni Arabs suggests that the US is also pursuing a strategy of fomenting community rivalries. Most Sunni Arabs have bought into this scenario, which explains perhaps both the radicalisation of anti-US resistance and the increased violence between Sunnis and Shias - and one that could presage a bloody civil war. The US has not only played the sectarian card to weaken countries and forces opposed to hegemony, but has also set itself up as the instigator and arbiter of low-intensity civil wars. It may find it difficult to control the unleashed chaotic forces.

One hopeful way of deflecting those forces of attrition and division is the new Iraqi permanent constitution that has been on the drawing board for some months now. Pursuant to Articles 60 and 61 of the Transitional Law, as well as UNSC Resolution 1546, the 71-member drafting committee, headed by Sheikh Humam al-Hammoudi, is reportedly close to completing its arduous task. The parliamentary deadline for approval of the document by the National Assembly is set for 15 th August. This will be followed by the distribution of 5 million copies to Iraqi households, a nationwide referendum on 15 th October and fresh elections on 15 th December 2005. Many Iraqis, let alone the international community, are hoping that the constitution would not only entrench Iraqis' basic rights, but also boost the morale of the country and deflect the carnage by harnessing Iraq toward a democracy-driven political process.

To achieve this laudable goal, and to reach an accommodation in a country that has sunk into violence and turmoil, it would be necessary for each of the main ethnic and religious groups to accept less that its maximum aspirations. After all, a badly-drafted document could sow the seeds of a future conflict, and it is therefore crucial that the drafting committee (with its various subcommittees) ensure that the constitution would become a tool that advances human rights as well as enshrines the principle of equality before the law for all Iraqi citizens.

In this context, there are four concerns about the draft document, and I would divide them into the following areas:

  • Regional Autonomy
  • Women's Rights
  • Electoral Law
  • Natural Resources

>Arguably, the most contentious concern is that of regional autonomy. It seems there is a consensus that the Kurds would maintain their autonomy and the broad measure of self-rule they have enjoyed in the north since 1991, although there is opposition toward institutionalising this autonomy within the constitution. Many Iraqis, certainly the Sunnis, appear adamant that those Kurdish borders should not include the oil fields of Kirkuk. Moreover, those same people are also against granting autonomy to the Shiite south. In fact, the kernel of Sunni concern is that if the Kurdish north and Shiite south were to acquire autonomy, they will themselves be left with an impoverished region in the middle of the country that is barren of natural resources. However, the discussions to date within the different committee members indicate that there are strong forces both for and against a form of federalism in Iraq, with one tendency pointing toward a possible federation of largely autonomous areas.

Another major concern is the issue of women's rights, and whether Islamic Shari'ah law would determine family law issues such as marriage, divorce and inheritance or property and thereby supersede the 1959 law that accorded specific rights to women. A reassuring note is that the drafters of the constitution seem to have removed from the draft document Article 14 that would have provided that matters of family law would be judged according to the rulings of the family sect or religion - such as the Shiite and Sunni Muslims, Yezidis or Christian communities. However, women's organisations fear that the new language still appears to leave family law in the hands of clerics despite the reassurances that the new draft would allow the family to choose which set of family laws it preferred - regardless of its own religion. The main thrust here is to ensure that the new constitution would guarantee the rights of Iraqi women whilst blunting the desires of ethnic and religious factions pushing for narrower discretion.

A third concern that needs to be corrected is the electoral law. The draft constitution should decide whether national elections are going to be based on a system of provincial representation, as the Sunnis prefer, or a nation-wide system, which would immediately favour the majority Shiites and Kurds.

The fourth area of concern focuses on how the revenues from natural resources, namely oil, would be shared and whether local or federal authorities (or both) should control such revenue. The system that is adopted would largely determine the moneys that would go to the different coffers and communities within Iraq. The South is oil-rich, and the north relies heavily on the oilfields in Kirkuk - hence the dispute over who controls those oil fields and where do the revenues generated form the oil end up eventually.

Beyond those four concerns, I am also conscious of an ongoing debate within the numerous indigenous groups in Iraq that are often referred to in the West as minorities. The question is not only what constitutes a minority group in Iraqi parlance and understanding today, but also whether their involvement should be based on confessional grounds or whether they should acquire instead a political umbrella that distances them from being viewed solely in confessional terms. In this context, Lebanon is a case point that is at times mooted in discussions in different Iraqi fora since the constitutional amendments following the Taïf accords have attempted to focus - not too successfully though - on expertise and competence rather than on confessional divisions.

So where does one go from here?

One possible model for Iraq to follow could well be the South African Constitution that was drafted in the 1990's following the collapse of the apartheid regime. As some of the readers might well remember, the country agreed to a weak form of federalism that reserved a good deal of power for central government. In fact, the formulation of the South African Constitution has resulted in stable government since 1996. This is possibly due to the fact that a key commonality of many successful constitutions is the presence of an enlightened leadership that would take the long-term view and understand that compromise delivers the benefits of stable and effective governance. This is more successful than seeking maximalist outcomes at the expense of political unity.

It is quite obvious to those who have been following events in Iraq that the situation remains hugely uncertain, and that different factions read this draft constitution through their own lenses. Whether this document would point the way forward depends on whether Iraqis would succeed in putting aside their solipsistic interests and looking at the broader long-term picture. It also depends on whether Iraq's neighbours, let alone those fighting the war, would allow Iraq control of its future without undue interference. But above all else, the future depends on the nature of the constitution that would come out in the next few weeks. Would it truly enshrine and apply the rule of law?

As Rami Khouri, the syndicated political columnist and executive editor of the Lebanese Daily Star opined this week in Iraq's Imperatives Mirror a Fractured Arab World , 'democracy and freedom - noble as they are - are not the most immediate priority issues, nor even the medium-term urgencies, for most people in this region []. Those priorities, rather, focus on sovereignty and dignity first, which cannot happen under foreign guns.'

The Iraqi street, and its coffee or shisheh shops where the true pulse of the Middle East can be tapped, are still very unsure about their future - with or without a constitution. The way to gain the support of Iraqis across the spectrum is not only by strengthening governance, civil society and human rights. It is also by developing public services, boosting employment and security and reducing poverty. When engaging with Iraqis, it becomes obvious that power supplies, sewage systems, telephone lines, water and food are the prototypical indices for improvement in their lives. The constitution can only undergird those efforts, not be marketed as its substitute, or else constructive instability could well deteriorate further into destructive instability - which is even more lethal for the whole region.

© Dr Harry Hagopian   |   2005   |   27 July


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