Iraq's Draft
Constitution
By Baghdad Burning
28 September, 2005
Baghdad Burning
The
final version (Version 3.0) of the Iraqi draft constitution was finally
submitted to the UN about ten days ago. It was published in English
in the New York Times on the 15th of September.
I blogged about
some of the articles in the first two chapters last week, so Ill
jump right to Chapter Three: The Federal Authorities. The first notable
difference between the final version of the constitution published in
the New York Times and the Arabic version published in Al-Sabah is in
article (47) under chapter three which sets down the general conditions
for the Council of Representatives. In the Arabic version,
there 6 conditions, while in the English one there are only five.
The condition that
isnt in the English version is the one mentioning that women should
make up 25% of the members of the Council of Representatives.
Article (47):
4- Voting laws aspire
to achieve womens representation on the Council of Representatives
of a ratio of not less than a quarter.
Previously, when
rights groups complained that the draft did not go far enough in ensuring
that women's rights were preserved and protected from an Iranian style
theocracy, supporters of the draft would point to the above clause and
say "see, women's rights ARE protected".
Upon reading the
Arabic version of the constitution, that is not necessarily true - the
key word in this phrasing is "aspire". This translates accordingly:
it isn't mandatory to have 25% women on the council-it is an aspiration,
like many of the noble aspirations set down on paper by our esteemed
Puppet government.
Almost two years
ago, the Governing Council (then headed by SCIRI puppet extraordinaire
Abdul Aziz Al-Hakim) came out with Decree 137 to abolish the Personal
Status Law. Womens rights groups rose up and demanded that Paul
Bremer turn the decision around- which he did. We were made grateful
that our secular laws were not abolished by the pro-occupation puppets!
With this draft
constitution, Decree 137 has virtually been brought back to life and
aspiring to have 25% of the Council of Representatives female isnt
going to compensate for that- especially when the overwhelming majority
of the above-mentioned women are from parties like Daawa and SCIRI.
Im wondering-
where is the outrage of pro-occupation, pro-war womens rights
advocates? Why the deafening silence, ladies?
According to Article
(58) in the same section, the Council of Representatives will be responsible
for the selection (through vote) of the president. Why shouldnt
presidential elections be through direct vote?
On the issue of
the President of the Republic, there is an interesting article in the
Executive Authority section of the same chapter. Article (65) lists
the conditions for the President of the Republic (which are the same
for the Prime Minister):
Article (65):
The candidate for
the president's post must:
1st -- be Iraqi
by birth from Iraqi parents.
2nd -- be legally competent and have reached the age of 40.
3rd -- have a good reputation and political experience and be known
for his integrity, rectitude, justice and devotion to the homeland.
4th -- not have been convicted of a crime that violates honor.
Be Iraqi by
birth from Iraqi parents is significant in that it emphasizes
that BOTH parents must be Iraqi (this is more pronounced in the Arabic
version of the constitution with the use of grammar abouwayn iraqiayn).
While this seems very natural it is noteworthy because it means that
secular American darling Iyad Allawi is out of the picture as candidate
for the presidency and the prime ministry. It is very well-known in
Iraq that Allawis mother is Lebanese from a prominent Lebanese
family (and related to Chalabis wife).
Saudi Arabia is
speaking up lately against Iranian influence in Iraq. Many suspect it
is because Saudi favorites like Ghazi Ajeel Al-Yawir and Allawi have
been sidelined and Iran-influenced politicians like Jaafari and Hakim
are now in power.
Not have been
convicted of a crime that violates honor is also interesting.
Does that mean its ok to have been convicted of other types of
crimes? Like Chalabi, for example- embezzlement- is that ok? Just what
crimes violate honor and what crimes keep honor intact
Federalism...
Chapter 5: Authorities
of the Regions is troubling. I have no problem with the concept of federalism.
Weve been accustomed to an autonomous Kurdistan for decades. The
current laws about federalism and regional policies in the draft constitution
might better be titled the Roadmap to Divide Iraq.
Article (115) is
especially worrying. It states:
Article (115):
Every province or
more has the right to establish a region based on a request for a referendum
to be submitted in one of the following ways:
1st -- A request
from one-third of the members in each of the provincial councils in
the provinces that wish to establish a region.
2nd -- A request from one-tenth of the voters in each of the provinces
that wish to establish a region.
This means that
any two provinces can decide theyd like to become a region
with laws and regulations differing from surrounding regions. Article
(116) fortifies this right with:
Article (116):
The region writes
a constitution for itself, defines the structure of the region's powers
and its authorities as well as the mechanism of using these powers in
a way that does not run contrary to the constitution.)
So basically, each
region will get their own constitution which must not run contrary to
the draft constitution. Also, according to the language article (4),
clause 5:
Article (4):
5th -- Any region or province can take a local language as an additional
official language if a majority of the population approves in a universal
referendum.
The abovementioned region may take on its own local language.
Article (117) has
a clause that authorizes regional authorities to:
Article (117):
5th -- The regional government shall be in charge of all that's required
for administering the region, especially establishing and regulating
internal security forces for the region such as police, security and
guards for the region.)
So heres a
riddle: what do you call a region with its own constitution, its own
government, its own regional guard and possibly its own language? Its
quite simple- you call it a country.
Article (137) of
the Transitional Guidelines in Chapter 6 says:
Article (137):
The Transitional
Administration Law for the Iraqi State and its appendix are voided upon
creation of the new government, except for what appears in paragraph
(a) of Article 53 and Article 58 of the Transitional Administration
Law.)
The above article
refers to the Transitional Administration Law set out by Paul Bremer
during the very early days of the occupation. This is one of the only
clauses that shall remain:
Article 53 [Kurdistan
Regional Government]
(A) The Kurdistan
Regional Government is recognized as the official government of the
territories that were administered by the that government on 19 March
2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala
and Neneveh. The term "Kurdistan Regional Government" shall
refer to the Kurdistan National Assembly, the Kurdistan Council of Ministers,
and the regional judicial authority in the Kurdistan region.
This is outrageous
because the areas administered by that government on the
19th of March, 2003 are highly disputed. Kirkuk, Diyala and Nenevah
(Mosul) are certainly not parts of the autonomous Kurdish region, no
matter what the Kurdistan Regional Government decided on the 19th of
March, 2003- the very beginning of the war.
And Kurdistan is
really the least of Iraqs worries. There is talk of possibly setting
up an autonomous region in the south that will be run by pro-Iran extremists
Daawa and SCIRI. Should provinces like Karbala and Najaf decide
to form a region in the south, America can congratulate itself on the
creation of an extended Iran. Already, these provinces are running on
their own rules and regulations, with their own militias.
Federalism is ok
when a country is stable. Its fantastic when countries or troubled
regions are attempting to unite. In present-day Iraq it promises to
be catastrophic. It will literally divide the country and increase instability.
This is especially true with the kind of federalism they want to practice
in Iraq.
Federalism based
on geography is acceptable, but federalism based on ethnicity and sect?
Why not simply declare civil war and get it over with?
Ive been reading
and re-reading the Iraqi draft constitution since the beginning of September.
I decided to ignore the nagging voice in my head that kept repeating,
A new constitution cannot be legitimate under an occupation!
and also the one that was saying, It isnt legitimate because
the government writing it up isnt legitimate. I put those
thoughts away and decided to try to view the whole situation as dispassionately
as possible.
It was during the
online search for the *real* draft constitution that the first problem
with the document hit me. There are, as far as I can tell, three different
versions. There are two different Arabic versions and the draft constitution
translated to English in the New York Times a few weeks ago differs
from them both. I wish I could understand the Kurdish version- I wonder
if that is different too. The differences arent huge- some missing
clauses or articles. Then again, this is a constitution- not a blog
one would think precision is a must.
The constitution
is basically in seven parts: Preamble, Chapter 1: Basic Principles,
Chapter 2: Rights and Freedoms, Chapter 3: Federal Authorities, Chapter
4: Powers of the Federal Authorities, Chapter 5: Regional Authorities,
and Chapter 6: Transitional and Final Guidelines.
I scanned the preamble
once without bothering to re-read it every time I saw a new version
of the constitution. It is somewhat long and dark and reads more like
a political statement than the opening lines of what should be a document
that will go down in history. I later realized that this was a mistake.
In the varying versions, the preamble differs in its opening lines,
as freelance journalist Alexander Gainem notes in the following article:
Furthermore, confusion
has been added by the existence of two versions of the same draft, each
with a different introduction in Arabic. The first begins, "We
the peoples of Iraq..." while the second version starts off with
"We the peoples of the valley of two rivers..." It is unclear
which version will be submitted to the United Nations but there is stark
distinction between the two versions. The latter would seem to indicate
that people living in Iraq are not constitutionally obliged to call
themselves Iraqi and this could potentially open the door for changing
the name of the country at some point.
Beginning with the
first chapter, Basic Principles, there are several interesting articles.
Article (2) seems to be the biggest concern for journalists and analysts
abroad. It states:
Article (2):
Islam is the official religion of the state and is a basic source of
legislation, and no law that contradicts its fixed principles and rules
may be passed.
No law can be passed that contradicts the principles of democracy, or
the rights and basic freedoms outlined in this constitution.
The constitution respects the Islamic identity of the majority of the
Iraqi people, and guarantees the full religious rights for all individuals
and the freedom of creed and religious practices.
Now, Im a
practicing Muslim female. I believe in the principles and rules of Islam
I practice- otherwise I wouldnt be practicing them. The problem
is not with Islam, the problem is with the dozens of interpretations
of Islamic rules and principles. Islam is like any other religion in
that its holy book and various teachings may be interpreted in different
ways. In Iraq we see this firsthand because we have ample example of
varying Islamic interpretations from two neighbors- Iran and Saudi Arabia.
Who will decide which religious rules and principles are the ones that
shouldnt be contradicted by the constitution?
In the old constitution
that was being used up until the war, the Temporary Constitution
of 1970 which came into implementation on the 16th of July, 1970, the
only reference to Islam is in Article (4) which simply states: Islam
is the religion of the state. There is nothing about its role
in the constitution.
In one version of
the constitution printed in some newspapers in August was another potentially
problematic article in the first chapter. It was numbered Article (12).
As far as I can tell, it isnt in the English version of the constitution-
and has possibly been lifted from the final version. Article (12) states
(and please excuse the translation):
Article (12):
The religious Marjaia is respected for its spiritual role and
it is a prominent religious symbol on the national and Islamic fronts;
and the state cannot tamper with its private affairs.
Marjaia in
Arabic means reference. Basically, this article discusses
the religious reference which should mean, I suppose, any
religious Marjaia in Iraq. However, in Iraq, any time the word
Marjaia is used, it is in direct allusion to the Shia religious
figures like Sistani and the other Marjaia figures in Najaf and
Karbala.
Why is it that the
state can have no influence on the Marjaia but there is no clause
saying that, in return, the Marjaia cannot tamper in matters of
state or constitution? The Marjaia has influence over the lives
of millions of Iraqis (and millions of Muslims worldwide, for that matter).
The laws of the Marjaia for some supersede the laws of state.
For example, if the Marjaia declares the religiously acceptable
marrying age to be 10 and the state declares the legal age to be 18,
wont that be unconstitutional? The state cannot pass laws that
do not agree with the basic principles and rules of Islam and for millions,
the Marjaia sets those rules.
The most interesting
article in Chapter 1, however, was in the first draft of the constitution
published on August 22 by some newspapers but it isnt in the final
draft (at least its not in the New York Times English version).
It is numbered Article (16), in the version of the draft constitution
it appeared in:
Article (16):
It is forbidden
for Iraq to be used as a base or corridor for foreign troops.
It is forbidden to have foreign military bases in Iraq.
The National Assembly can, when necessary, and with a majority of two
thirds of its members, allow what is mentioned in 1 and 2 of this article.
This one is amusing because in the first two parts of the article, foreign
troops are forbidden and then in the third, theyre kind of allowed
well sometimes- when the puppets deem it necessary (to keep them in
power). What is worrisome about this article, on seeing the final version
of the draft constitution, is its mysterious disappearance- in spite
of the fact that it leaves a lot of leeway for American bases in Iraq.
Now, in the final version of the constitution, there is nothing about
not having foreign troops in the country or foreign bases, at the very
least. The now you see it/ now you dont
magical effect of this article, especially, reinforces the feeling that
this constitution is an occupation constitution.
When we get to Chapter 2: Rights and Freedoms, the cutting and pasting
really begins. Upon first reading it, many of the articles and clauses
sounded very familiar. After a few, it hit me that some of them were
taken almost word for word from the Temporary Constitution of 1970,
implemented up until the war (this constitution having been based on
the constitution before it).
Ironically, well
over half of the section Rights and Freedoms was lifted
from the 1970 Temporary Constitution, making the moral of the story:
Its not the fancy words in the constitution, its the government
that will actually implement said words.
The rights of women
in the new constitution are quite murky. In one version, printed in
the New Sabah newspaper in August, there is a clause about the state
guaranteeing the rights of women in their family, social and economic
setting and equality between men and women in order to allow women to
make substantial contributions to the state as long as it does not contradict
the constitution! This article is not in the final draft.
In the final draft
of the constitution, women are mentioned as having the right to vote
and run for government. The rest of the references to women are hardly
flattering- women are mentioned in context with children and the
elderly. In the 1970 constitution, women arent mentioned
at all. References are made to Iraqis or citizens-
this does not single out women as needing special attention or care
because they are less capable people needing male guidance or surveillance.
Example:
Article (30):
1st -- The state guarantees social and health insurance, the basics
for a free and honorable life for the individual and the family -- especially
children and women -- and works to protect them from illiteracy, fear
and poverty and provides them with housing and the means to rehabilitate
and take care of them. This shall be regulated by law.
Women's rights won't
be apparent until the Personal Status Law is defined clearly. Former
Iraqi Personal Status Law was the most advanced in the region. It secured
advanced rights for Iraqi women. This, like everything else, is subject
to change and the following article makes this very clear:
Article (39):
Iraqis are free
in their adherence to their personal status according to their own religion,
sect, belief and choice, and that will be organized by law.
Basically, Iraqis
will be able to practice their own personal status laws according to
religion and sect. This article, in itself, is a can of worms in the
making and only a set of lawyers and a group of Muslim religious scholars
will ever be able to explain the implications properly.
Ill blog more
tomorrow about the issue of federalism, and the coming referendum- this
post is already long enough.