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New Iraqi constitution - paper or reality? (includes summary of provisions)

03/08/2004

The long awaited interim Iraqi constitution was signed today, certainly a positive step on the way to Iraqi independence and democracy. You can read the English language version here. The Arabic is given here. You can find a detailed commentary on it here and a summary is given below.

The value of any constitution depends on the will and ability of the people to carry it out. The former Soviet Union had one of the most liberal constitutions in the world, but its provisions were not enforced. This basic law is an interim constitution, and by design it will not survive passed the initial phase of transition to Iraqi self-government.

How the constitution is implemented depends on the players in the Iraqi national field, and on their commitment to freedom and unity as opposed to sectarian goals and power politics. All the factions have legitimate fears, and both Kurds and Shi'a have suffered a long period of persecution that could result in backlash and infighting.

The claims of the Kurds for autonomy are known, and there is no doubt that some will press for independence. To tell the truth, one can scarcely deny that the Kurds, if they so desire, have the right to self determination. Further, if they really set their hearts on implementing that right, it is improbable that that they would be prevented forcibly from doing so. The question is, whether the Kurds of Iraq really want to isolate themselves. A great deal depends on what the rest of Iraq does.

The Shi'a, have long been an embattled group of second class citizens in Islamic society. So much so that they have developed a religious doctrine of Taqqiyeh , dissembling, which allows them to remain quiescent during long periods of persecution.

According to Amir Taheri, the Iraqi Baath party had a special genocidal plan for the Shi'ites, that was spelled out in a book by Taha Yassin al-Jizrawi, who later became vice president under Saddam Hussein: "Three That Allah Should Not Have Created: Shiites, Jews and Flies." Jizrawi noted that the Jews, who in the 1930s were almost a quarter of Baghdad's population, had been "flushed away." He points out the "speedy disappearance of flies" from Iraq, thanks to imshis, small pesticide vaporizers. He wrote, "Now we need imshis for the Shiites."

Shi'ite worship and gatherings were banned. Shi'ites were deported to Iran on various pretexts and Sunni Muslims were imported from outside. Like the Kurds, many tens of thousands of Shi'ites were murdered in 1987 and in 1991.

Now the Shi'a find that they are a majority in a free country, despite threats and provocations like the recent bombings in Karbala and Baghdad on the day of Ashoura. They can try to work together with others, or they can try to impose their rule. "Democracy" can be interpreted in strange ways in the Middle East. It is not uncommon for people to believe, for example, that if the majority want an Islamic Republic, then it is democratic to have an Islamic Republic.

The Shi'a leader, Ayatollah Sistani, has erected many difficulties in the face of the provisional government, and has refused to meet with US representatives, talking only through intermediaries. He only agreed to the present constitution with great reluctance, and because of the need, as he saw it, to get the USA out of Iraq and achieve Iraqi self-government.

Sistani is more or less an unknown quantity. He is an ethnic Persian, and he studied in the Iranian holy city of Qom under the same Ayatollah who was the mentor of Ayatollah Khomeini. He has suffered assassination attemps and many privations under the Baathist government, and steered a very careful path of quiet leadership during all those years. His opinions on role of religion in politics are not well known. Thus far, he has acted ostensibly out of concern for preserving national unity and the Islamic nature of the country. His concerns about special provisions that protect the autonomy of the Kurds are not unjustified. Of course, all bets are off after authority is ceded to the new government, which is scheduled to occur no later than the beginning of 2005.

Make no mistake. Sistani wields a great deal of power in Iraq. The Shi'a are 60% of the population and he is their leader. Like the Iranian Shi'a, the Iraqi Shi'a believe in the doctrine of Marj al Taqlid , a guide to be emulated. Sistani is the Marj. He is an ascetic, reclusive and scholarly leader, whose politics, are not well known by Westerners, but he is certainly the leader, as a recent Washington Post article attested:


"We consider him the leader. If he says die, we die. If he says live, we live," said Aufi Abid Rahi, a tribal leader.

"If Sistani gives a word to fight, I will fight to the death," said Meshkur Abid Sayyah, another tribesman. "He's my marja."

Sistani wants elections, but it is hard to believe that he wants democracy. He wants elections in order to make the Americans keep their promise. Apparently, his main concern is to preserve the Islamic character of Iraq. In response to a question last year, he wrote "There is a grave danger in obliterating [Iraq's] cultural identity, whose most important foundation is the honorable Islamic religion." He explained that a proper government woud respect the religion of the majority, adopt its values and not conflict in any of its decisions with any of the stipulations of that religion."

Sistani's version of Islam prohibits music for entertainment and mixed gatherings of men and women, and instists that women must cover their hair.

It is unlikely that Sistani will find common cause with Persian Shi'ites. He is known to have resisted incorporation as a subordinate as the Ayatollah Khomeini. Najjaf, his seat, used to be the principle holy city of the Shi'a, but owing to repressions, it was eclipsed by Qom. Sistani may wish to renew the former glory of Najjaf. The main questions that should interest the US and the Iraqi people however, should be whether Sistani believes in velayet e faqih - rule of the jurisprudent, as applied in Iran, and whether he believes, as do his spiritial brothers in Qom, that the United States is the Great Satan. If the answer is yes to both, then there will be stormy times ahead for the USA and for democracy in Iraq.

Ami Isseroff

Unofficial Summary of the Iraqi Interim Constitution

Scope

The Transitional Administrative Law will be the Supreme Law of Iraq during the transitional period. It will expire when a government is elected, and a permanent constitution is instituted. This will happen no later than December 31, 2005, except as provided under Article 61.

Transitional Period
The transitional period will consist of two phases:


-- Phase I: On 30 June 2004, an Iraqi Interim Government will be vested with full sovereignty, and the Coalition Provisional Authority will dissolve. This Iraqi government will be formed through widespread consultation with the Iraqi people and will govern according to the Transitional Administrative Law and an annex to be issued before the start of the transitional period.

-- Phase II: The Iraqi Transitional Government will take office after elections for the National Assembly. These elections will take place as soon as possible, but no later than 31 January 2005.

Basic Principles
This Law is the Supreme Law of the Land.

Any previous law that contradicts this law is hereby nullified.

No amendment to this Law may be made except by a three-fourths majority of the members of the National Assembly and the unanimous approval of the Presidency Council. No ammendments may be made that abridge the rights guaranteed in Chapter 2 of this law or delay elections or infringe on the rights of any religion including Islam.

The basic principles of the constitution include:


-- The system of government in Iraq will be republican, federal, democratic, and pluralistic. Federalism will be based on geography, history, and the separation of powers, and not on ethnicity or sect.

-- The Iraqi Armed Forces will fall under the control of Iraq's civilian political leadership.

-- Islam will be the official religion of the State and will be considered a source of legislation. The Law respects the Islamic identity of the majority of the Iraqi people and guarantees the freedom of religious belief and practice of all individuals. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period.

-- Arabic and Kurdish will be the official languages of Iraq. The constitution elaborates the places where these languages will be used, including schools, public assemblies banknotes, official gazette etc. Additional languages may be taught in private schools.

Rights

The people of Iraq are sovereign and free. All Iraqis are equal in their rights and without regard to gender, nationality, religion, or ethnic origin and they are equal before the law. Those unjustly deprived of their citizenship by previous Iraqi regimes will have the right to reclaim their citizenship. The government will respect the rights of the people, including the rights:


-- To freedom of thought, conscience, and expression;

-- To assemble peaceably and to associate and organize freely;

-- To justice; to a fair, speedy, and open trial and to the presumption of innocence;

-- To vote, according to law, in free, fair, competitive and periodic elections;

-- To file grievances against officials when these rights have been violated.

Torture is forbidden in all forms.

In addition, Iraqis have rights consistent with all international treaties and conventions that Iraq has signed, and all other rights as befits a free people.

Federal Structure

The Transitional Iraqi Government will contain checks, balances, and the separation of powers. The federal government will have the exclusive right to exercise sovereign power in a number of critical areas, including the management and control of the following:


-- National security policy; independent militias shall be prohibited,

-- Foreign policy, diplomatic representation, and border control,

-- National fiscal, monetary and commercial policy,

-- National resources; revenues from which must be spent on the needs of all of Iraq's regions in an equitable manner.

Legislative Authority

The Transitional Legislative Authority will be vested in a National Assembly, which will pass laws and help select and oversee the work of the executive authority. The National Assembly will be freely elected by the people of Iraq, under an electoral system designed to achieve representation of women of at least one-quarter of its members, as well as fair representation of all of Iraq's communities.

Executive Authority

The Transitional Executive Authority will consist of the Presidency and the Council of Ministers, including the Prime Minister.

-- The Presidency Council will consist of the President and two Deputy Presidents, and will be elected by the National Assembly as a group. The Presidency Council will represent the sovereignty of Iraq, may veto laws, and make appointments. All decisions of the Presidency Council will be taken unanimously.

-- The Presidency Council will nominate the Prime Minister and, on the recommendation of the Prime Minister, will also nominate the Council of Ministers. All ministers will need to be confirmed in a vote of confidence by the National Assembly.

-- The Prime Minister and the Council of Ministers will oversee the day-to-day management of the government.

Judicial Authority
The Federal Judicial Authority will be independent. A Federal Supreme Court will be created to hear judicial appeals and to ensure that all laws in Iraq are consistent with the Transitional Administrative Law. It will consist of nine members, appointed by the Presidency Council upon the recommendation of an impartial Higher Juridical Council.

Local Government
Federalism and local government will ensure a unified Iraq and prevent the concentration of power in the central government that made possible decades of tyranny and oppression. This will encourage the exercise of local authority in which all citizens are able to participate actively in political life.

- The Kurdistani Regional Government will be officially recognized within a unified Iraq, and will continue to exercise many of the functions it currently exercises. Groups of governorates elsewhere in Iraq will be permitted to form regions, and take on additional authorities.

-- The governorates will have Governors and Governorate Councils, in addition to municipal, local, and city councils as appropriate.

-- All authorities not reserved to the Federal Government may be exercised as appropriate by the governorates and the Kurdistan Regional Government.

-- Elections for Governorate Councils throughout Iraq, and also for the Kurdistan National Assembly will be held at the same time as elections for the National Assembly, no later than 31 January 2005.


Security
Iraq's security will be defended by Iraqi Armed Forces, working together with the Coalition. Consistent with Iraq's sovereign status, the Iraqi Armed Forces will play a leading role as a partner in the multinational force helping to bring security to Iraq in the transitional period. The Iraqi Transitional Government will also have the authority to negotiate a security agreement with Coalition forces.

Permanent Constitution
The National Assembly will be responsible for drafting the permanent constitution.

After consulting with the Iraqi people and completing a draft, the proposed constitution will be submitted to the public in a referendum, which will occur no later than 15 October 2005. If the constitution is adopted, elections for a new government under the constitution will be held, and the new government will take office no later than 31 December 2005.

Article 61 - Detailed Procedure for Transition - Complete Article
A) The National Assembly shall write the draft of the permanent constitution by no later than 15 August 2005.

(B) The draft permanent constitution shall be presented to the Iraqi people for approval in a general referendum to be held no later than 15 October 2005. In the period leading up to the referendum, the draft constitution shall be published and widely distributed to encourage a public debate about it among the people.

(C) The general referendum will be successful and the draft constitution ratified if a majority of the voters in Iraq approve and if two-thirds of the voters in three or more governorates do not reject it.

(D) If the permanent constitution is approved in the referendum, elections for a permanent government shall be held no later than 15 December 2005 and the new government shall assume office
no later than 31 December 2005.

(E) If the referendum rejects the draft permanent constitution, the National Assembly shall be issolved. Elections for a new National Assembly shall be held no later than 15 December 2005. The new National Assembly and new Iraqi Transitional Government shall then assume office no later than
31 December 2005, and shall continue to operate under this Law, except that the final deadlines for
preparing a new draft may be changed to make it possible to draft a permanent constitution within a
period not to exceed one year. The new National Assembly shall be entrusted with writing another
draft permanent constitution.

(F) If necessary, the president of the National Assembly, with the agreement of a majority of the members' votes, may certify to the Presidency Council no later than 1 August 2005 that there is
a need for additional time to complete the writing of the draft constitution. The Presidency Council shall then extend the deadline for writing the draft constitution for only six months. This deadline may not be extended again.

(G) If the National Assembly does not complete writing the draft permanent constitution by 15 August 2005 and does not request extension of the deadline in Article 61(D) above, the provisions of
Article 61(E), above, shall be applied.

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Original text copyright by the author and MidEastWeb for Coexistence, RA. Posted at MidEastWeb Middle East Web Log at http://www.mideastweb.org/log/archives/00000218.htm where your intelligent and constructive comments are welcome. Distributed by MEW Newslist. Subscribe by e-mail to mew-subscribe@yahoogroups.com. Please forward by email with this notice and link to and cite this article. Other uses by permission.

by Moderator @ 07:14 PM CST [Link]

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Replies: 4 comments

apparently, iraq's 1924 constitution, created by a constituent assembly that i believe was under british supervision, was also a very good constitution. it's interesting that the english version begins with the iraqi people, which you don't find till you get to the 3d paragraph of the arabic version. doubtless, most western readers will recognize the idea, that the source of law is the people--not religion, nor the constitution itself. whether or not iraqis will accept this idea is something else again. one of the most striking things in the debate over 'islamist democracy' is that apparently none of the so-called islamist democrats are at all familiar with either classical liberal theory, or even more contemporary debates. compare this to how much western scholars know and write about islamic law throughout the ages. the iraqis need more than a constitution; they need iraqis scholars and journalists explaining what a constitution is. otherwise, they're going to wind up with guys like azzam tamimi claiming how "democratic" hamas is because they elect their own councils.

lee smith

Posted by Lee Smith @ 03/08/2004 08:35 PM CST

A pity that Iraq cannot be a secular state instead of being a religious one. Maybe the Shias could form part of Iran and the rest tie in with Jordan or Syria.

Posted by Aotearoan @ 03/11/2004 12:01 AM CST

I don't see anything about an individual's right to bear arms, which is fundamental to a free nation. Without this right, it is only a matter of time until tyranny occurs again.

The most frightening part of the interim constitution is the phrase:

"Islam will be the official religion of the State and will be considered a source of legislation."

Without a true separation of church and state, true freedom will not exist. There should be no consideration of religion when it comes to justice. For democracy to occur, there must be a total separation of church and state and the people must have the right to bear arms.

Posted by TheShmoo @ 03/13/2004 04:10 PM CST

The right to bear arms is not necessary for a free nation to function properly.

England has functioned for over a century now banning firearms for regular citizens. Even normal police (bobbies as they are called in England) function without guns, using only their billyclubs.

Japan and Mexico have similar bans on normal citizens bearing firearms.

Tyranny does not seem to be gaining momentum in England, Japan, or Mexico

Japan even has a "pacifism" clause in its own Constitution in which it resists sending its troops anywhere in the world. It's military is almost exclusively for self-defense now. When Japan does send troops, it is for peacekeeping purposes. It is never for attack purposes.

It is interesting that the crime rate in England, Japan, and Mexico is lower per 1000 people than in the U.S. where such a right is stated in the Second Amendment.

Posted by Walter A. @ 03/14/2004 07:39 AM CST


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