A Constitution or an Epitaph?

By Zaid Al-Ali, openDemocracy.net. Posted August 17, 2005.

The Iraqi constitutional committee could not come to an agreement on the issues that separated it by the Monday's deadline: the role Islam should play in the constitution, federalism as a model of government, the rights of women, even the official name of the new Iraqi state. The result is that the national assembly has given the negotiators a week's extension, until August 22 -- a period both long enough (in principle) to resolve differences, and short enough to sustain the pressure to do so.

The fact that none of the major issues have been settled is a worry, both for the Iraqi political process and for a George W Bush administration determined to see the negotiations end quickly. But the manner in which the process was extended is also significant.

The Transitional Administrative Law (TAL) of 2004, passed by Paul Bremer -- head of the United States-appointed Coalition Provisional Authority set up following the end of the Saddam Hussein regime in April 2003 -- has operated in Iraq as a sort of interim constitution. It sets out the political timetable that the Iraqis are supposed to follow until a new constitution is passed and a permanent government is formed. The terms of the TAL specify that the drafting process should have been completed on 15 August 2005, but also indicate that the national assembly could request a six-month extension if a draft could not be completed by that date. However, the TAL makes no provision for a one-week extension. The national assembly's last-minute intervention is therefore its own invention.

The one-week extension has been presented as an amendment of the Transitional Administrative Law itself. This explanation is problematic. For example, Article 32(c) of the TAL provides that the national assembly cannot vote on a bill in the first four days after a bill is presented to it. An amendment passed in the final moments before the August 15 deadline expired clearly does not meet this four-day requirement. The national assembly, in other words, violated the TAL in order to amend it.

The Americans were desperate to avoid this type of development, and are especially disturbed by it. In practice, it means that the Iraqis are starting to deviate from the path that the occupation authorities had set for them. If a final constitution is indeed agreed on 22 August, the effect could be considered "benign". But what if no agreement is reached and the national assembly seeks a further extension? The pressure the Bush administration applied to secure agreement by 15 August did not work, and it may be no different next time around.

The scale of the differences that still divide the parties on three significant issues -- federalism, religion, and women -- reinforce the sense that meaningful agreement will be hard to reach.

Federalism or Centralism?

The first fundamental issue yet to be resolved is whether Iraq should become a federal country, and if so of what kind. It raises a number of vital subsidiary questions, such as the control and distribution of oil revenues.

The latest version of the draft constitution provides for four different levels of government:

• the federal government in Baghdad
• the "regions", one of which is Kurdistan
• the eighteen "governorates", based on the pre-2003 governmental structure
• the "local administrations", designed for governance of cities.

The major difference between this structure and the system ruled by the Ba'ath party is the existence of new regions and their associated powers. Before the invasion of 2003, Iraq's state bureaucracy was based on an unelected and unaccountable central government, which appointed governors in each of the country's eighteen governorates. The draft constitution provides for an elected federal government accountable to the country's parliament, but envisages this co-existing alongside (also elected and accountable) regional governments.

Zaid Al-Ali is an attorney at the New York Bar and specialises in international commercial arbitration. He is also an editor at IraqEconomy.org.

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