Iraq’s Interim Constitution …The objectives and future scenarios ..

Abderrahim Sabir

 

In June 30, 2004 a “new Iraq government” will emerge to “administer” the daily affairs of the state and help pave the road for an elected parliament, the adoption of a permanent constitution, and a government by early 2005. These objectives limit the interim appointed government from making any long-term decisions that might impact or hinder the work of the upcoming elected bodies. But what role does the interim administrative law plays in this transitional process and to what extent is this law an interim law?

 

The US administration’s early declared objectives in Iraq were to build a model state for democracy and modernization in the Middle East, hoping for a domino affect vis a vie the other countries in the region. US officials believed that the spread of democracy in the Middle East will go through Iraq and that in itself will promote or rather radically change the US image in what many call a battle of minds and hearts. Unfortunately, the new Iraqi transitional administrative law – while having a very positive part dealing with civil liberties – might prove to be a source for unrest and destabilization not only Iraq but throughout the Gulf region.  

This essay attempts to examine the new Iraqi transitional administrative law, in order to assess the potential consequences and the various scenarios for a post-Saddam Hussein Iraq. In light of the continued violence and resistance in Iraq, the question of whether the declared intentions and objectives could be achieved through this process is already proving to be a very critical question. 

A Constitution is a document that describes a country’s identity, values, principles, institutions, governance system, legal systems and the sources that inspire the whole process. Accordingly, constitutional rules are frequently basics that give way to interpretations by next generations. It cannot be fully detailed since it is not a law or a regulation. It should include the principles and the aspirations of a nation.

 

The constitution represents a long-standing basic document that all the legal, political, economic, judicial regulations and institutions will be built on. Unlike other laws, regulations and policies, the constitution is not a document that encourages amendments and revisions whenever a new government or Parliament is in charge. It represents the wisdom and heritage of a nation to preserve and pass on to other generations.

 

Consequently, the vital question to be raised is who should draft this basic document? Undoubtedly any country in transition can build upon experiences of other countries that share some similarities. Nevertheless, the fact remains that the citizens of that nation are the ones who should chose what suits them, due to the mere fact that they are the ones who know quite well the heritage, aspirations, values, norms and customs of that country.

 

The newly drafted document is called “Iraq’s interim transnational administrative law.” In reviewing the document one cannot avoid raising the following question: does this basic law intended to establish order in Iraq and pave the way for an elected body to draft a constitution for the land or is it meant to be in itself a final constitution, as many in the media have referred to it. The answer to this question might clarify other questions that have been raised dealing with the future of Iraq.

 

If this document is a basic law that intends to pave the way for the upcoming elections, then most of its articles should be irrelevant, since the entire document represents the opinion of non-elected members, appointed by the occupation authority. On the other hand, if it is meant to be a final constitution for Iraq then this essay will show many of its shortcomings besides the fact of being drafted by a non-elected body.

 

The Governing Council, as an appointed body, does not have the legality or the powers to make decisions relating to the future of Iraq. Furthermore, the powers of the Governing Council depend on the whims of a foreign country’s administrator, Paul Bremer, who has the veto power over any of its decisions. This would be a reason as to why the document was not officially called a constitution either interim or final.

 

How provisional is the provisional law:

Article 1 states that the document is a “law of Administration for the state of Iraq for the transnational period”; article 2 stipulates that this transnational period is from June 30, 2004 until a government is elected pursuant to permanent Constitution no later than December 31, 2005 unless article 61 has been applied.

Accordingly, this is a provisional document intended to serve for a transitional period, but is this truly the case? When we move to the exception provided in article 61, serious questions arise on how provisional this law is.

 

According to article 61, the draft of the permanent Constitution will be submitted as a draft to the Iraqi people for approval. The Constitution will be adopted if the majority of voters in Iraq approve it, provided that 2/3 of the voters of 3 states do not reject it!

 

Article 53 says that there are 18 states in Iraq, 6 of which are under the Kurdish authority. Furthermore, Article 53 recognizes the existence of the Kurdistan government as the official government for the 6 states. Consequently, if the majority of Iraqis accept the Constitution while 2/3 of 3 Kurdish states reject it, which corresponds to 1/2 of the Kurdish voters and 10% of the Iraqi population, the Constitution will never be adopted and the provisional Law will remain indefinite, unless the 90% majority accept the terms of those 10% dissenting voices.

 

We can conclude, then, that this document might turn to be the de facto permanent Constitution of Iraq as an agreement over its contents would be unfeasible. This might give an explanation as to why it has been drafted in such a detailed way as to go beyond the mandate and legitimacy of the non-elected council appointed by the occupation authority. With this in mind, we can proceed to examine the context of the document.

 

Identity:

It is customary to indicate in a constitution the identity of a nation, its heritage, and civilization. The history of Iraq goes back 5000 years, and its Muslims/Arab heritage 1400 years. Baghdad was the capital of the Abbasid state that ruled all the Middle East and most of North Africa. The Iraqi population is around 80% Arabs and 97% Muslims.[1] However, in the new transnational administrative law Iraq is not an Arab state!

 

According to article 7 of the transnational administrative law, Iraq is no longer an Arab country, rather it is a multi-national nation where the Arab people in it belonging to the Arab nation! A comparison between the old Iraqi constitution of 1990 and the new interim constitution is vital to explain the difference. The old Iraqi constitution reads in article 5 that “(a) Iraq is a part of the Arab Nation (b) the Iraqi People are composed of two principles nationalisms: the Arab Nationalism and the Kurds nationalism. (c) This constitution acknowledges the national rights of the Kurdish People and the legitimate minorities within the Iraqi unity”.

 

The identity of Iraq as an Arab country cannot be changed by a mere provision. Iraq is a founding member of the League of Arab states and its membership in all international organizations recognizes this identity. Its removal in the new interim constitution is quite questionable, to say the least, in its effects and the intentions behind it.

 

The Kurds, as a minority have the right to insist on preserving their identity and their own cultural heritage.  There is also an important need to rebuild trust between all the Iraqis. We cannot ignore or forget the brutal acts the former regime committed against the Kurds. But we should not accept what some are trying to suggest, that the practices of the old regime were of a racial nature between Arabs and Kurds or Sunnis and Kurds. Saddam Hussein’s brutal rule affected every home in Iraq, and was not selective as to who deserved his wrath. One of the most famous historical leaders of the region was Saladin who was a Kurd. Saladin gained power in Egypt (an Arab country) and started his war against the crusaders. If this shows anything, it should show the common and shared heritage of Kurds and Arabs. The New Iraq Transnational administrative law is trying to deepen a racial division and reject any attempt of unity in Iraq.

 

This ironically represents a good example for how the strategy of winning hearts and minds of 80% of the Iraqi’s population is being misguided by the neo-conservatives in Washington, and how the Iraq example as a model for democracy and modernization is becoming a mirage.

 

Governance:

Article 4 describes the governance system as “republican, federal, democratic, and pluralistic, and powers shall be shared between the federal government and the regional governments, governorates, municipalities and local administrations. The federal system shall be based on geographic and historical realties and the separation of powers, and not upon origin, race, ethnicity, nationality, or confession.”

While deciding to break the unity of the country and changing it to a federal system is outside the mandate and authority of a non-elected council, the assertion that this will not be based on race or ethnicity is commendable. Nevertheless, this assertion is neither possible nor really achievable in today’s Iraq.

 

Article 53, recognizes the government of Kurdistan as the official government of the Kurds territory (creating racial and ethnic division), and elaborates that the usage of government here means the Kurds Parliament, Kurds ministerial council and the judiciary authority in the Kurdistan territory.

Furthermore, Articles 26 and 54 provides the supremacy of the federal laws over any laws issued from any state except for Kurdistan, where the local government can alter these laws, and retains the rights to impose taxes and fees and keep control of internal security and police.

Moreover, this supremacy of the Kurdish government in governing their internal security apparatus as an independent part of Iraq raises questions as to the interpretations of Article 27 that prohibits the creation of any Militia that is not under the control of the provisional government, unless permitted by federal law. The Kurds have kept the Bishmiraka Militia all this time and they are not subject to federal law, which at the same time gives them the right to have internal security troops besides the police.

The federal government has been weakened furthermore by article 52 that states clearly that the federal system has to be based on a way that forbids the federal government from having a central authority. Ironically the drafters of this article found themselves in a position where they had to explain their rational. They stated that through breaking the central government and allowing local authorities in every territory and state to gain power a united Iraq will be created!

How federal is this federal system? How are race and ethnicity being used? What kind of unity can be founded on a constitution that divides the country based on race and ethnicity? What kind of cooperation can exist between the different states bearing in mind, the religious, ethnic divisions and the different external alliances between each group and foreign external powers?

Through the abovementioned analysis, it is apparent that a Kurdish state is created on its own outside the authority of the federal government and the rest of Iraq, with a wealth of oil resources. Such a state will be surrounded by a hostile Turkey, Syria, Shiite Homeland Iran and the rest of Iraq, which will, undoubtedly view it with suspicion as a separate entity with the US as its protector. The interim constitution as it stands encourages separation and calls for a larger autonomy that might lead to independence or major conflicts. The Kurdish State could also become, and here lays the danger, an American implant of the new-conservators, to control Syria, Turkey, Iran and the rest of the Gulf States.

 

 Based on my reading of the so-called Basic law I do not foresee seeds toward a future united and democratic Iraq being planted. We can only hope that this will not lead to the Balkanization of Iraq. If this happens, a dangerous spiral leading to regional conflict may spread, creating chaos and instability.

 

Sovereignty:

Article 3 provides that this law cannot be amended unless ¾ of the National Assembly approves it and the Presidential Council unanimously approves it. Article 36 establishes the Presidency Council as consisting of a President and two deputies elected by the National Assembly (not directly elected by the people). It obliges them to take their decision unanimously. The choice of two deputies is intended to have the presidential council composed of the three major ethnic and religious parties (Kurds, Shiite, and Sunni). This belief is based on the selection process that requires 2/3 of the National Assembly’s voting. The ‘unanimous’ requirement paralyzes the Presidency Council and makes any amendments to the current law inconceivable. Hence, it confirms furthermore the point that this law is not meant to be provisional or interim.

Article 3 goes further to prohibit any amendments related to section two of the law. Section two introduces a very interesting Article. Article 21 prohibits the provisional government or any administrative or executive body from interfering in the civil society institutions and its cooperation with International civil society groups. In an Iraq in transition this article, while showing remarkable progress, could prove to be problematic in the short run.

Another issue of sovereignty powers in Iraq is that of the military. Article 59 (B) reads that “consistent with Iraq’s status as a sovereign state and its desire to join other nations in maintaining peace and security and fighting terrorism during the transitional period, The Iraqi Armed forces will be the principle partner in the multi-national forces operating in Iraq under unified command (no explanation is given as what the drafters meant by the unified command) pursuant to provisions of United Nations Security Council Resolution No 1511 (2003) and any subsequent relevant resolutions! The arrangement shall last until the ratification of a permanent constitution and the election of a new government pursuant to that constitution.”

 Moreover, 59(c) empowers the provisional government to make any binding international agreements related to the multinational forces under the unified command. Note that 59 (c) does not provide a time limitation to this agreement or specify any limitations to the provisional government in binding the elected government with any treaties related to foreign forces operating in Iraq either from a time perspective or from a quantitative perspective as to the number of the troops or its missions and authorities.

Accordingly, the constitution ensures limited sovereignty, empowers the governing council to legalize what started as an occupation authority and to make any future agreements binding to the new government in a way that goes beyond any mandate or powers the council has from a legal perspective. It has been reported lately that the newly established Iraqi Armed forces refused to carry out orders by US troops in seizing the city of Falluja. As the insurgent operations continues against the coalition forces, ordering the new Iraqi Armed forces to suppress these actions could intensify internal fighting among Iraqis which would have far reaching consequences for Iraq’s future stability.

In the middle of the stormy events that Iraq is facing, this document represents a seed for future conflicts across ethnic and religious lines. A change in the structure of the transnational administrative law is highly inconceivable. With all the tensions this will bring, we can assume that an independent sovereign Iraq might be a far off dream. If such conflict were to arise it will draw many foreign players to a wounded Iraq, all supporting a different ally.

By the end of the signing ceremony, Adnan Pachachi said "This is a great and historic day for Iraq; we have produced a document we can justly be proud of."[2] Shortly after, Ibrahim Jafari[3], read a proclamation that he said was endorsed by 12 of the 13 Shiites members on the Council, calling for renegotiation of parts of the document. "Our signature is linked to our reservations…which must be addressed in the future," said Ahmed Chalabi, one of the initial five Shiite dissenters.[4] These reservations are not to be found anywhere in the constitution which begs the question, if the majority of the council reject it, then who drafted it. Its internal contradictions have been building.  It is hard to predict what the new Iraq would look like. The Americans and the British are finding themselves in a real quagmire and they don’t have an exit strategy.  Iraq’s instability and the continued violence might cause the downfall of George Bush and Tony Blair, and does not bode well for a democratic and unified Iraq.  One can only hope that this bleak scenario of a civil war would not occur and that Iraq will regain its independence as a unified sovereign and democratic country that can become a local model for modernization and stability.

Abderrahim Sabir is the spokesperson of ACHR in USA