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The Iraqi Constitution
Phyllis Bennis
Institute for Policy Studies
16 March 2004 - Anniversary of the Murder of Rachel Corrie
The signing of the interim Iraqi "constitution" by the Governing Council
represents a significant step in US efforts to legitimize its invasion and
occupation of Iraq. By achieving the codification in a US-supervised process of
an ostensibly "Iraqi" legal document, the US as occupying power is hoping
that its planned June 30th "transfer of power" will be accepted globally as the
"restoration of sovereignty to Iraq". In fact, that "transfer of power" will
not end the US occupation, will not lead to the withdrawal of US troops,
and will not result in any real sovereignty for Iraq. The constitution itself
implies recognition of its impotence, as it recognizes that all "laws,
regulations, orders, and directives" issued by the US occupation authorities will
remain in force.
The new Iraqi constitution lacks legitimacy. It was drafted under US
supervision by a body hand-chosen by the US military occupation authorities, and
subject to final approval by the US proconsul, Paul Bremer. Its acceptance
by the Iraqi population remains uncertain; its ability to actually set the
terms for laws to govern the country during the interim period after June 30
remains unknown; its relevance to any truly independent government created after
the interim period remains in doubt. As a result, any examination of the
Constitution must include its legitimacy/illegitimacy, as well as the content of
its provisions.
The constitution describes only a vague process to select the new
transitional government to which the US will "transfer power" on June 30th. It is to be
chosen through "a process of extensive deliberations and consultations with
cross-sections of the Iraqi people conducted by the Governing Council and the
Coalition Provisional Authority and possibly in consultation with the United
Nations". No method of conducting such "extensive deliberations" is included,
and given the Governing Council's failure so far to have engaged in serious
wide-ranging consultations with Iraqi society regarding their own governance, it
is unlikely to change any time soon. Crucially, the mandated "consultations"
are to be conducted equally between the existing US-appointed Governing
Council and the US occupation authority itself - thus insuring that the Governing
Council will remain either fully in place or with a self-selected successor
body to replace it. The role of the UN is dismissed as "perhaps" being included
in consultations.
The Iraq Governing Council holds on to power. Since the constitution says
nothing about how the interim government will actually be selected, the unspoken
understanding is that the Governing Council -perhaps enlarged by additional
US-selected individuals, perhaps in its current form-will remain the center
of Iraqi authority. Many current members of the Council have made clear their
desire to hold on to power, knowing that (since most of them spent the last
decade or two or three outside of Iraq) they would be unlikely to win any kind
of election. As a result, the United Nations and others have suggested that
the interim government operate with a very narrow mandate - essentially "keeping
the lights on and paying the bills of the street-sweepers". Specifically,
the suggestion was that the interim government make no decisions regarding major
economic or foreign policy issues. However, the constitution as drafted
provides no limits on what issues the interim government, in whatever form it
takes, may decide - including continuing the US-initiated privatization policies,
negotiating major replacement oil contracts, and most significantly signing a
Status of Forces Agreement with the US to provide an Iraqi "invitation" to
the 100,000+ US troops who will remain in Iraq.
The constitution calls for a federal system of government, in which despite
language to the contrary, the sectors are almost certain to be determined by
Iraqis' ethnic and religious identity. The division of Iraqis into Shia',
Sunni, Kurdish, Turkoman, Assyrian, Christian identities is the basis for the
US-created Iraqi Governing Council, and is the likely basis of the division of
power within a "federal" Iraqi system. This causes three major problems: 1)
there is no representation for Iraqis who identify first as Iraqi citizens, and
only secondarily as Shia'a, Kurds, or whatever. 2) The ethnic/religious quotas
assume that all Kurds, Shia'a, Sunni, Assyrians, or others represent
monolithic political blocs. 3) A system based on ethnic or religious sectoral
interests is inherently unstable, in most cases giving minority and majority
populations too little or too much power, and undermining national identity as Iraqis.
Lebanon's years of confessional (religiously determined) division and war
demonstrates the potential dangers.
The constitution, for example, would give Kurds, who represent about 20% of
the population, a veto over acceptance of the future permanent constitution.
This would take place in the context of Kurdish opposition to any future
constitution, since Kurds constitute the majority in three provinces, and the interim
constitution insures that a law, or permanent constitution, would fail if it
is opposed by a majority of people in at least three provinces.
Along with the problem of forcing a religious or ethnic identity for people
wanting to assert and build a national Iraqi identity instead, it is not at all
clear that most Iraqis support the kind of federal system imposed in the
constitution. There is little indication that any serious effort was made to
consult with large sectors of the Iraqi people before determining such a drastic
framework.
The constitution creates a federal system but leaves vague what powers remain
with the national government and what devolves to the regions. The central
government is given responsibility for foreign policy, national security,
fiscal and monetary policy, and control of oil and other natural resources. But
there is no limit identified as to what powers a "federal region" may assert.
The Kurdistan Regional Government, the only federal region identified, is to
have broad, yet vaguely defined powers of self-government: legislative and
judicial independence, the Kurdish pesh merga militia to remain in force. The
Kurdish government will also "retain regional control over police forces &internal
security", implying that the pesh merga could remain a permanent force
independent of the central Iraqi government.
The constitution asserts a set of individual political rights, as well as
economic and social rights significantly advanced, though not absolutely
unprecedented, in the Arab world. Those rights include freedom of speech and
association, assembly, religion, travel, the right to demonstrate and strike, access
to the courts, open trials and the presumption of innocence. There are
prohibitions against unlawful arrest, slavery, torture and trying civilians before a
military court. However, the prohibition on establishing "special or
exceptional courts" is already undermined by the special court established to try
Saddam Hussein and other accused war criminals.
In terms of economic and social rights, the constitution includes "the right
to security, education, health care, and social security", and states that the
government agencies "within the limits of their resources" shall strive to
provide prosperity and employment opportunities to the region".
The text calls for a "goal of having women constitute no less than
one-quarter of the members of the National Assembly" that will be selected [by as yet
undetermined means] to draft the final constitution, and states that, "All
Iraqis are equal in their rights without regard to gender, sect, opinion, belief,
nationality, religion, or origin, and they are equal before the law".
While the US has launched a major propaganda campaign regarding the
"unprecedented in the Arab world" nature of these guarantees, in fact a number of
Arab states actually have similar constitutional rights. The problem comes -as
is the case in the US, Europe and elsewhere-not so much in the written law as
in its implementation. In this regard, Iraq is unlikely to be very different.
The relationship between religious law and individual liberty remains
unclear. Islam is to be relied on as "a source" for Iraqi laws, and the constitution
states that no law may contradict either Islamic law or the guarantees of
individual rights. This was a compromise between those urging that Islam be
regarded as "the source", implying that Islamic sharia' law should be the sole basis
for new laws, and those, especially women, concerned that Islamic law would
undermine the constitution's individual rights. Islam was also identified as
the state religion of Iraq (similar to most Arab constitutions), though
religious freedom included in the individual rights. US officials including Paul
Bremer had already announced they would veto any constitution that in their
view would make Iraq an "Islamic state".
Issues missing from the constitution. The new document does not address
crucial questions even for the interim period itself. It does not identify the
means of choosing the new interim government beyond "deliberations and
consultations". It leaves undefined the future legality and power of sectarian militias
that currently exist in a legal vacuum. The language states that militias and
armed factions outside of the to-be-created Transitional Government "are
prohibited, except as provided by federal law", implying that a law drafted in the
future granting the Kurdish Pesh Merga forces or a Shia'a militia or anything
else would be deemed within the constitutional framework.
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