The Illegality
Of Iraqs Constitution
By Dahr Jamail
08 October, 2005
Upsidedownworld.org
US
influence in the process of drafting a constitution for Iraq is excessive
and "highly inappropriate", a United Nations official says.
"It is a matter
of public record that in the final weeks of the process, the newly arrived
US ambassador [Zalmay Khalilzad] took an extremely hands-on role,"
Justin Alexander, legal affairs officer for the office of constitutional
support with the United Nations Assistance Mission to Iraq told Inter
Press Service (IPS). "Even going so far as to circulate at least
one US draft."
Alexander, who oversaw
the recent proceedings in Baghdad, added: "This involvement was
highly inappropriate for a country with 140,000 soldiers in country."
Zaid al-Ali, a legal expert who also oversaw the drafting process in
Baghdad, made a similar case at a meeting at the International Association
of Contemporary Iraqi Studies in London.
"There are
three ways in which the occupation intervened in the context of Iraq's
constitution-writing process," he said. "First, the occupation
authorities selected and affected the makeup of the commission that
was charged with drafting Iraq's transitional law and its permanent
constitution. Second, the occupation determined the limits and parameters
within which the constitution was to be drafted. Third, the occupation
authorities intervened directly in order to safeguard its interests
in the context of the constitutional negotiations."
Al-Ali said it was
significant that one article in the draft constitution on foreign military
bases was dropped from the final version. "One article contained
in a previous draft provided that setting up foreign military bases
in Iraq was to be forbidden, and that the only way in which this could
be deviated would have been by a two-thirds majority vote in parliament."
Shiite cleric Moqtada
al-Sadr said that the alliance between the Sunni Association of Muslim
Scholars and the large movement of Shia rejected the draft and the "political
process which had been led by occupiers and their collaborators".
The group said in
a media statement, "We consider this draft as a next step of this
process which does not represent the peoples' will." The alliance
also expressed "major suspicions about the honesty of the next
referendum, which will take place under occupation and with neither
international nor Arabic and Islamic supervision."
Dr. Marinos Diamantides,
senior lecturer of law at the University of London, said the entire
drafting process could be illegal under international law.
"One could
argue the entire process is against the law," Diamantides told
IPS. "According to the 1907 Convention for the pacific settlement
of disputes, the occupying power has a duty to maintain the legal system
of the country it occupies. This is the first time ever that an occupying
power has dismantled the internal law system of the country it occupies."
He also pointed
out that, ironically, the Sunnis now have the power to derail the upcoming
referendum by a two-thirds vote in three provinces. That power was originally
intended to give the Kurds the power to veto the constitution.
When Iraq's Kurdish
and Shia-dominated parliament recently approved the draft, Sunnis immediately
began campaigning for a "no" vote in the upcoming October
referendum. If the draft were to pass the referendum, it would be followed
two months later by election for a new government.
At least four provinces
are predominantly Sunni, and Sunni clerics have urged their followers
to reject the draft if it does not meet Sunni demands.
Adding further complexity
to the already muddled situation, Denis Halliday, former UN humanitarian
coordinator in Iraq during the sanctions, believes that even the United
Nations has no place in occupied-Iraq.
"The UN doesn't
have a position in Iraq today," Halliday told IPS. "Once the
invasion took place, the UN became collaborators with the enemy [the
United States]."
Halliday, who had
resigned from his UN post in protest against "genocidal sanctions",
added: "This lesson should have been learned in August 2003, when
our office in Baghdad was blown up, as we were collaborators. The UN
has simply become a tool of the US, and Iraqis can no longer distinguish
between the US and the UN."
Justin Alexander
said Iraq might need a new constitution. "If Iraq creates a progressive
and effective constitution and laws to implement the constitution, then
this could benefit Iraqis. But in the absence of mutual reconciliation
and an end to the occupation, this is all futile."
-This article was
originally published in www.upsidedownworld.org