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.

The only officially existing region today is Iraqi Kurdistan, but the draft constitution allows that any two or more governorates can form their own region. In practice, this is likely to lead to the formation of one large Shi'a region in the south of the country, in turn encouraging the formation of a Sunni bloc in the west.

The result would be a three-region Iraq, united in a loose federation yet split along sectarian lines. This outcome would in retrospect give the draft constitution the character of a lengthy epitaph for a united Iraq. Its prospect explains why Iraq's remaining nationalist elements -- including Iyad Allawi's party, the movement of Muqtada al-Sadr, as well as many Sunni groups -- are so opposed to the spread of the regional model beyond Kurdistan.

The Role of Religion

The second outstanding contentious issue is the role of Islam under the new Iraqi constitution. Here, there is some misunderstanding of the nature of the disagreements dividing the parties. For example, Article 2 of the draft constitution (which affirms that "Islam is the official state religion, and it is the principal source of legislation") worries many foreign observers, but the constitutions of secular states like Egypt and Syria contain almost identical provisions.

Moreover, Iraq's previous secularism under the Ba'ath regime was combined with recognised sharia courts which continue to exist today, although their jurisdiction is relatively limited compared with most other Muslim-majority nations.

The wording of Article 2 of the draft constitution is not particularly problematic as long as an option for legislation independent of Islamic jurisprudence exists. If Islam is the "principal" source, other sources could in principle operate; whereas if Islam were the "only" source, they could not.

This is precisely what the drafters have been arguing about. Indeed, the second sentence of Article 2 declares: "It is forbidden to enact laws which contradict the principles of Islam." This is perhaps the most strongly worded provision in any Arabic constitution, although similar wording can of course be found in the 1979 Iranian constitution, as well as the more recent 2004 Afghan constitution.

What effect would the current Article 2 have in practice? In theory, it would entail that all legislation contrary to Islam would be anti-constitutional and therefore liable to be revoked. In practice, the effect may not be so dramatic. Even in Iran's post-revolutionary fervour in the 1980s, most of the Shah-era legislation was for pragmatic reasons allowed to stand. So Iraq would probably not rehaul its legislation in light of Article 2; what is likely is that all future laws relating to matters like family law, divorce, and inheritance will have to be based on Islamic principles, regardless of the views of the country's lawmakers.

This issue has proved especially intractable in the constitutional negotiations. Several groups -- the Kurdish alliance, Iyad Allawi's party, the influential Association of Muslim Scholars and other Sunni organizations -- opposed the present wording of Article 2 as a threat to the secular nature of Iraqi society. Most Shi'a parties by contrast insist on maintaining the wording as it stands.

Women in the New Iraq

The third divisive issue in the constitutional talks, and one where the Islamic law debate will have its most immediate impact, is that of women's rights in Iraq. The negotiations over women's rights reflected almost exactly the debate over the deeply linked matter of Islamic law.

It should be emphasised that the equality of men and women is in no way incompatible with Islamic principles. The problem in the context of the constitutional drafting process in Iraq is that many of the parties -- including many of the women on the constitutional committee -- seek to implement a particular agenda and interpretation that is often far from liberal.

The first circulated draft of the constitution stated:

"The state guarantees the fundamental rights of women and their equality with men, in all fields, according to the provisions of Islamic sharia. The state assists women to reconcile duties towards family and work in society."

Some Iraqi and international women's rights groups balked at the obvious suggestion that women are in fact not equal to men; as a result, the second draft dropped the sentence relating to sharia. A later draft then abandoned any mention of women's rights. This left the issue to be covered by the draft constitution's non-discrimination clause ("All Iraqis are equal before the law, irrespective of their sex, race, sect, origin...").

The controversy continued, and the most recent draft has reintroduced the issue of women, declaring:

"The state shall guarantee the conformity between the role of women towards family and their work in society and their equality with men in relation to political, social, cultural and economic life so long as this does not contradict the fundamental principles of this constitution."

The impact of this article is far from obvious, since the wording suggests that equality between men and women will be dependent on other constitutional provisions. The most evident are Article 2 (compatibility with the principles of Islam) and the general non-discrimination clause.

Although there is space for tension between interpretations of these different provisions, the intention of the latest women's rights guarantee is clearly to make equality between men and women subject to Islamic law. Thus, if the current wording is maintained, it seems more than likely that Iraqi women will lose many constitutional rights and freedoms. Indeed, it would be nonsensical to suggest that men and women are equally subject to a non-discrimination clause.

The debate on women's rights has also seen some women, who may be potential losers under the new constitution, arguing essentially against their own interests by supporting sharia as one source of Iraq's law. Many of the women on the constitutional committee -- particularly those representing the United Iraqi Alliance, supported by Grand Ayatollah Ali al-Sistani, that was victorious in the January 2005 Iraqi elections -- consider that women should have fewer rights than men, and support the draft constitution's latest wording. Such women are being used as a tool of their own oppression.

A Week, or Much Longer?

It is apparent from these three problems that the constitutional committee has a huge amount of work to do if the latest deadline is to be met. The varied interests represented in the talks often appear to be irreconcilable, and the zone of possible agreement limited at best.

The week ahead may very well be make-or-break for Iraq's constitutional process: a final agreement that all parties can subscribe to in public (whatever their private doubts), or a more extenuated process that will reveal unbridgeable cracks of principle. Meanwhile, the Iraqi people -- boiling, tired, lacking work and basic services, concerned for the future of their country -- wait and hope for better times to come.

              

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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