IRAQ'S CONSTITUTIONAL DEBATE
Ibrahim Al-Marashi*
This article analyzes the Iraqi draft constitution and the role played by each party in its creation. The demands and internal divisions of the various parties involved in the process are addressed, as well as the difficulty to reach a consensus. The possible outcomes of the December 15, 2005 vote and the future of the constitution are also discussed. The article concludes that these fundamental disagreements may preclude the possibility of reaching a final draft by consensus.
"We the sons of Mesopotamia, land of the audiences (both Iraqi and international prophets, resting place of the holy imams, the observers of this process) that in this very leaders of civilization and the creators of the land of the "two rivers," the world's first alphabet, the cradle of arithmetic: on our constitution was developed during the reign land, the first law put in place by mankind of the Babylonian leader Hammurabi. was written; in our nation, the most noble era However, in the land that produced the first of justice in the politics of nations was laid written law code, forging ahead with the task down; on our soil, the followers of the of drafting a constitution for the modern prophet and the saints prayed, the nation of Iraq has proven to be a hard task. philosophers and the scientists theorized and The experience has proved daunting as the the writers and poets created. " drafters of the constitution have faced pressure from two sides. The Commission -Preamble to the Iraqi Draft responsible for the draft strove to meet an Constitution released on August 29, 2005 August 15, 2005 deadline to produce the document due to increasing insistence from INTRODUCTION the United States, yet at the same time, The Iraqi draft constitution, opening with heeded demands from the Iraqi public, as the evocative "Nahnu abna' wadi al-rafidain" well as Sunni in the Commission, to draft the (We, the sons of Mesopotamia), ironically constitution in a less rapid, more inclusive and mimics the rhetoric of the deposed dictator transparent fashion. Saddam Hussein, who strove to develop a synthesized Iraqi-Arab-Mesopotamian Considering that drafting the constitution nationalism during his rule. Nevertheless, began in earnest in May 2005, the fact that a drafters of the preamble remind their document, albeit an imperfect one, was
139 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Ibrahim Al-Marashi released several days after the deadline is an unable to comprehend the text in the original impressive feat. Yet this impressive feat may be Arabic. The second fallacy, not only the very undoing of the charter, as questions underlining the debate on Iraq's constitution, have emerged about the integrity of a document but on the nation as a whole, is an addiction that was rushed in such a fashion. It could be to describe its society as divided by three neat said that Iraq is pursuing democracy at a monolithic blocs. These blocs are known as microwave oven's pace. "The 'timer' for Iraq the "Shi'a, Sunni, and Kurds" and obscure the to assume sovereignty was set on June 28, nature of the debate on Iraq's constitution. 2004, a few months later it held elections on The purpose of the following analysis of the January 30, 2005, and an interim assembly constitutional debate is to draw upon Iraqi will have to rush to write a constitution by and Arab media sources to elucidate the October 2005 to be voted on by the Iraqi trends in its internal politics, as well as to public."1 Indeed, the end result of this process analyze how international media coverage of is a constitution that emerged from this the constitutional process propagates the "microwave." The document was written under myth of Iraq's tri-ethnic division. "coerced consensus," with Arab Shi'a and Kurds, excluding Arab Sunni in the drafting HISTORICAL OVERVIEW commission from crucial negotiations in the Iraq's first constitution was drafted in 1925 process and leaving many controversial and during the British mandate. Five years had crucial issues unspecified for the sake of passed since the 1920 Iraqi revolt against the passing an upcoming referendum. British, and thus some deemed the document as a tool to legitimize indirect British rule.2 The United States had pressured the Iraqi One can say that history in Iraq repeats itself drafters to adopt a constitutional process that as some Iraqi factions complain that the would entice the Sunni to partake in Iraq's current draft serves as an American tool to political process. This was in order to manipulate and control Iraq's politics. Despite undermine the insurgents' social base of the complaints in the 1920s, the 1925 support, and thus expedite the exit of constitution was drafted after heated debate American troops from a quagmire in Iraq. among Iraqis, within not just the drafting Yet the very constitutional process that tried committee, but the public as a whole. The to bring harmony to Iraq's populace could document recognized Islam as the "official also serve as a decisive issue that might religion of the state," but provided freedom of plunge the country into full-scale civil war worship to all Iraqi communities. It stipulated between the Sunni, Shi'a, and Kurds, that Islamic law (Shari'a) would serve as "a essentially resulting in the constitutional source of law" with respect to personal status dismemberment of Iraq. issues affecting Muslims.3 Thus, the current draft constitution is essentially replicating the The debate on Iraq's constitutional process 1925 document, as it also recognizes Islam as suffers from two weaknesses. The first is that the religion of the state and Shari'a as "a observers of this process offer advice and source" of law for personal status issues. commentary without examining the debate occurring in Iraq itself. Others have failed The military coup of Abd al-Karim Qasim even to read the Iraqi constitution or are in 1958 overthrew the monarchy and
140 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate established the Republic of Iraq--a title which demonstrated that a proto-federal Kurdish the nation bears to this day. The coup also state existed on paper long before the safe ushered in subsequent "provisional" haven was established in the north of Iraq after constitutions designed to legitimize the the 1991 Gulf war. While this constitution successive regimes that promulgated the provided cultural and linguistic rights for the documents. While provisions on liberties and Kurds,6 such provisions meant little as the minority rights were explicitly mentioned, Saddam Hussein government attempted to they were never followed in spirit by these "Arabize" the various regions. This was "revolving-door" military dictatorships that achieved by deporting Kurds from Kirkuk and ruled Iraq from 1958 to 2003. The 1958 eliminating their villages bordering Iran, provisional constitution reiterated the role of culminating in the Anfal campaign that Islam as the state religion. While it exterminated entire segments of the Kurdish guaranteed freedom of worship, it also ended rural population. Iraq's parliamentary period and dissolved the powers of the former prime minister, Saddam Hussein attempted to pay lip concentrating all authority into the executive service to promises he made during the 1980- position of the President, a euphemism for 88 Iran-Iraq War to democratize Iraqi society dictatorial rule.4 This constitution more. In 1990, and the Ba'th drafted a acknowledged that the Iraqi nation constituted "permanent" constitution, but failed to two nationalities: Arab and Kurd. However, implement it due to the invasion of Kuwait such a clause failed to prevent tensions and its aftermath. Nevertheless, ratifying the between the Qasim government and the 1990 constitution would have served as a mere Kurdish leadership, resulting in a renewed formality, as Hussein effectively ruled Iraq armed rebellion in the north of Iraq. through Revolutionary Command Council (RCC) decrees, issued via various state-run The Ba'th Party coup in 1968 resulted in a newspapers and media outlets. The decrees provisional constitution two years later that could issue various laws and prohibitions, only cemented the party's monopoly over the to be overturned the next day at Hussein's political system, essentially decreeing that all whim. authority rested in the "Party" and the "Revolution." The 1970 constitution also This system remained intact until April acknowledged Arabs and Kurds as equal 2003 with the fall of the Ba'thist government. nationalities within the "Iraqi union."5 Four In the political vacuum that followed the years later, the Iraqi government established collapse of the state, plans were debated on the Kurdish Autonomous Region (KAR), in an how to draw up a new Iraqi constitution. attempt to placate the Kurds during the height During this chaotic interim period, Iraqi Shi'a of the Kurdish Democratic Party's (KDP) ironically complained to the author that they uprising in the north of Iraq. While the KDP were being ruled by two sets of new "RCC rejected the agreement, as it failed to include decrees"--Paul Bremer's Coalition the city of Kirkuk in the KAR, the Region Provisional Authority Orders and Grand remained "autonomous" in theory. Thus, this Ayatollah Ali Sistani's bayans, or religious
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Ibrahim Al-Marashi decrees. Ironically, Iraq's constitutional Council (IGC). After much debate within the process had its roots in one of these sets of Council, on March 8, 2004, this body decrees. ratified an interim constitution known as the Transitional Administrative Law (TAL). 7 The THE CONSTITUTIONAL WRITING TAL was treated with suspicion by Iraqi PROCESS critics of the post-war order. First, it was One of the dangers of viewing Iraq drafted behind closed doors by the IGC, a through a tri-ethnic prism lay in the body whose membership was seen as assumption that Iraq's Shi'a formed an ethnic unbalanced in favor of Shi'a exiles and group, a classification that led outside Kurdish parties. Second, the document's observers to fear that they would articles were overly influenced by the U.S. automatically follow the lead of their fellow authorities in Iraq. "ethnic" brethren across the border in Shi'a Iran. Yet, in the aftermath of the 2003 war, it Despite its imperfections, it empowered has been a Shi'a religious cleric of Iranian the two segments of Iraq's population which origin, Grand Ayatollah Ali Sistani, who has had been excluded from the political system ensured that Iraq's political process does not under the Ba'th. It met the Kurdish political mimic that of the Islamic Republic of Iran. parties' demand for autonomy and the Shi'a The Coa lition Provisional Authority (CPA) parties' demand for a political system that advocated that Iraq's first referendum would recognize their majority in Iraq's implement a system where members of society. Article 7 of TAL also satisfied the caucuses, handpicked by the Americans, religious Shi'a factions, as it stated, "Islam is the would be responsible for the elections and official religion of the State and is to be drafting the subsequent constitution. In considered a source of legislation," but not the reaction, Sistani issued a decree on June 30, only source of legislation. The TAL also 2003, stipulating that the democratic served to empower another disenfranchised elections are based on a "one person-one segment of Iraq's population--the Iraqi vote" system, and that those elected Iraqis women. According to the TAL, the January 30, should write Iraq's constitution. Fearing to 2005 election would aim to have women upset a cleric who held sway over large constitute no less than one-quarter of the segments of Iraq's majority Shi'a population, members of the Transitional National Assembly the CPA gave into his demand of direct (TNA). The TAL served as a interim governing elections, resulting in the January 2005 charter that would provide an outline for the referendum. process of drafting the current constitution that would replace the TAL itself. Elections The Transitional Administrative Law were to be held in January 2005 for a In the interim period, a document was national assembly that would then draft this needed to govern Iraq and serve as a guiding document by August 15. The draft document framework for the process of drafting the would then be voted on through a popular constitution. A month after Sistani's decree, referendum on October 15. If the constitution is the CPA appointed 25 Iraqis among various passed by a majority in this election, the TAL religious and ethnic communities to serve in states that a new referundum would be held for a body known as the Interim Governing a permanent National Assembly on December
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15, which in turn would select Iraq's president administration. who would then select Iraq's prime minister. 8 Below this area, a strip of governorates However, an article within the TAL may has been referred to as the "Arab Sunni serve as the undoing of this constitutional Triangle," as the population of these process. Article 61 C states that the draft administrative units are predominantly Sunni constitution will be ratified under two Arab and witnessed most of the violence in conditions. First, a majority of voters must the aftermath of the war. The governorates approve of the text. Second, ratification include Salah al-Din (includes Saddam's would be blocked if two-thirds of the voters home town of Tikrit), al-Anbar (including the in three or more governorates were to reject restive towns of Falluja and Ramadi), and it. Diyala (including the restive town of The latter stipulation was believed to have been Ba'quba). included in the TAL text as a compromise to placate Iraq's Kurdish political parties in the Baghdad, the capital of Iraq, is located IGC. It was a Kurdish demand that a safety within its own governorate. Below the capital mechanism be included so that the three are the nine provinces of Karbala, Najaf, predominantly Kurdish governates of Dohuk, Babil, Qadisiyya, Wasit, Misan, Dhi Qar, Irbil, and Sulaymaniyya could veto the draft Muthanna, and Basra, where most of Iraq's constitution if it did not satisfactorily meet their Shi'a reside, but also containing significant demands for a federated Kurdish entity. pockets of Iraqi Arab Sunni as well. Ironically, what emerged as a Kurdish concession could serve as the Arab Sunni veto Many observers of Iraq have not only of the current draft constitution. divided it into three ethnic blocs, but also assume for a fact that Kurds, comprise 15 to Iraq is comprised of eighteen governorates 20 percent of Iraq's population, Sunni make (muhafazat). Starting from the north, the up 15 to 20 percent, and Shi'a some 60 three governorates of Dohuk, Irbil, and percent, with numbers adjusted for Iraqi Sulaymaniyya are predominantly Kurdish, Turkmen and other minorities. It must be and thus the Kurdish demand that the stressed that these numbers are only mere population in all three of these entities be guesses since a reliable census of Iraq's granted the power to veto the draft. Bordering population has not been conducted. this area are the governorates of Ninewa Obviously, the failure to conduct a census (where the predominantly Sunni Arab city of during the Saddam regime was because it Mosul is situated), and Ta'mim which could highlight the fact that a Sunni Arab includes the oil-rich city of Kirkuk. The minority ruled the country and would have Kurds have demanded that they maintain been inaccurate given that communities such federal jurisdiction over this city, yet the as the Turkmen were only recognized as problem remains that it is a divided city Arabs. The lack of a census led to an election among Arabs and Turkmen who are procedure in January 2005 where Iraq would unwilling to submit "their city" to Kurdish be treated as a single electorate. Therefore,
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Ibrahim Al-Marashi the exact numbers of Sunni in the center representing Iraqi Christian parties, gained only provinces are uncertain. However, it is one seat in the Assembly. The Front of Iraqi assumed or feared that they can rally two- Turkmen, a coalition group including the Iraqi thirds' of the population in the Ninewa, al- Turkmen Front (ITF), at first attempted to Anbar, Salah al-Din, and Diyala governates boycott the elections, but then ran at the last to block the draft constitution, exercising the minute and gained only three seats. The veto power granted to them by the TAL. The People's Union, a coalition dominated by the possibility of a regional defeat required the former outlawed Iraqi Communist Party, led by Shi'a and Kurdish politicians to include the Hamid Majid al-Musa, secured two seats.10 Sunni in the constitution-writing process. This was in addition to the hope that the After the elections, the TNA was integration of these alienated Arab Sunni responsible for establishing a government and would result in their calls to end the cabinet before drafting the charter, but this insurgency, a product seen as a result of their effort was seriously delayed by political exclusion from the political process. infighting. By May 2005, the Assembly appointed a 55-member committee made up Formation of the Constitutional of Shi'a, Sunni, and Kurdish legislators from Committee/Commission the TNA. The committee consisted of 46 men The January 30, 2005 elections resulted in a and nine women, with the UIA providing 28 victory for the United Iraqi Alliance (UIA), a drafters on the committee, while the KCL had coalition of predominantly Shi'a religious 15 members. The committee included only candidates, which received 140 of the 275 seats two Sunni, Abd al-Rahman al-Nu'aimi from in the Transitional National Assembly (TNA), the UIA coalition and Adnan al-Janabi from representing 48 percent of the vote. The the al-Iraqiyyun coalition led by Allawi.11 Kurdistan Coalition List (KCL), dominated by These mere two members reflected the Sunni' candidates from the Kurdish Democratic Party low numbers in the TNA. Moreover, the (KDP) and the Patriotic Union of Kurdistan politicians were seen as unrepresentative of (PUK), came in second with 75 seats or 26 the Sunni population as a whole, as al- percent. Thus the UIA failed to receive a Nu'aimi belonged to a Shi'a coalition and al- majority and formed an alliance with the KCL Janabi was associated with the Iraqi National to ensure the necessary two-thirds majority to Accord, an exile group that had little pass various motions. Al-Iraqiyyun ("The grassroots support among the Arab Sunni. Iraqis"), a coalition led by the former interim Prime Minister Iyad Allawi (who also served On May 24, the Constitutional Committee as the leader of the exiled opposition group held its first formal assembly, with less than the Iraqi National Accord), attempted to three months to write the constitution according provide a political platform that transcended to the TAL-established deadline of August 15, sectarian and ethnic affiliation. It received 40 2005. During this committee session they seats or 14 percent of the vote. The Sunni selected the UIA member, Humam Hammudi Arab factions called for a boycott of the as its chairman. Hammudi is a Shi'a cleric elections and the parties that did participate and member of the Supreme Council for the gained only 17 seats.9 The National Rafidayn Islamic Revolution in Iraq (SCIRI), the (Mesopotamia) List lead by Yunadam Kanna, dominant faction within the UIA. Despite his
144 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate clerical background, he did not seek to Principles; Rights and Freedoms; Institutions impose Islam as the source of legislation and of the Central Government; Institutions of the was content with the TAL, which stipulated Governorates Administrations, the that Islam be a source of legislation. Fuad Authorities of the Institutions; Constitutional Ma'sum of the KLC and member of the Guarantees; and Concluding Regulations.14 Patriotic Union of Kurdistan served as his These Committees would later regroup to first deputy chairman. Adnan al-Janabi, served bring those chapters into one document to be as a "second" deputy chairman, thus trying to debated within the Commission. Once a draft allocate the three position in order to placate the was agreed upon, the Commission would three largest segments of Iraq's society.12 submit it to the National Assembly. However, according to the TAL, the TNA Nevertheless, the Assembly and the does not have to vote on the draft Committee needed to find an ad-hoc constitution, before it is released to the public arrangement to co-opt more Arab Sunni and to be voted on in the October 15 figures into the process. This was despite the referendum. fact that those within the body were reluctant at first to include unelected Sunni, who may Goals of the Political Factions in the Writing have been sympathetic to the Ba'th or the Process insurgency. Parties that represented various 1) Shi'a Political Parties/UIA elements among the Sunni, such as the the For the Shi'a political parties, the core goal Iraqi Islamic Party, the Association of was to ensure the constitution guaranteed that Muslim Scholars, and the National Dialogue a future government reflected their majority Council, were seen by some on the Committee status and demographic weight in Iraq. Given as political wings of the Iraqi insurgents. While that the UIA is dominated by two Islamist the three groups have disavowed any links with parties, SCIRI and the Da'wa Party, they also the insurgents, they do have moral influence sought a role for Islam in the state. Given among them, and thus incorporating them into their connections to the Shi'a religious the political process was seen by some Iraqis, institutions in towns such as Najaf and as well as the United States, as the first step in Karbala, they aimed to ensure the document defeating the insurgency. acknowledged Iraq's Islamic identity and character. However, this factor has been Under U.S. pressure and deliberations misunderstood by outside observers of the between the TNA and a group of prominent constitutional process. None of these factions Arab Sunni leaders, 17 members from this ever stated that their aim to establish a community were given the opportunity to wilayat al-faqih ("rule of the jurisprudent") as participate in the body. The consititutional in neighboring Iran, nor do they intend to use drafting committee officially became a the democratic process to achieve this end. commission, a title to accommodate those not The Iranian system of government, although 13 elected into the National Assembly. Within led by Shi'a clerics, is not accepted by all this commission, subcommittees were formed Shi'a clerics, especially by Grand Ayatollah to write the different "chapters" (bab) of the Ali Sistani, nor by clerics in SCIRI or Da'wa. constitution. The committees included Basic
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Additionally, these Shi'a factions have their autonomous region to include the city of recently demanded that the constitution Kirkuk, but were willing to concede on this provide them with the right to form their own issue and debate it at a future date in the year federated state in the south, on the lines of a 2007. In the past, they have made their Kurdish federated entity in the north. aspirations for an independent Kurdish state known, but have used this as a negotiating Ayatullah Sistani, while responsible for tool simply to ask for the right to separation setting this process in motion, has remained from Iraq. They have also conceded on this quiet during the writing of the constitution demand and now have focused on insisting itself. Indeed, he has been described as that the document ensures a federated system belonging to the "quietist" school of Shi'a within Iraq to protect their status. The secular theology, which urges clerics to abstain from KDP and the PUK, the two most dominant taking an active part in the political sphere. factions within the KCL, have attempted to While Sistani has demonstrated that he has no block the Shi'a attempts to Islamicize a future aspirations for a political role, he is willing to state via the constitution. issue decrees regarding political affairs at crucial junctures, such as in June 2003. 3) The Sunni Parties/ AMS-IIP-NDC Contrary to rumors in the Iraqi media that he Coalitions condemned a federal Iraq, his edict issued on The Sunni Arab parties fared poorly during August 30 neither condoned nor condemned a the January elections due to their call for a federal system. 15 boycott. They faced the dilemma of influencing the writing of the constitution, via On the other hand, the young cleric their role in the Constitution Drafting Muqtada Sadr has called for the Shi'a clerical Commission, despite their low numbers in the establishment to play a direct role in Iraq's Assembly. The primary goal of Sunni politics. Despite the publicity he receives, he involved in this process is to prevent the has emerged only as a secondary figure passing of a constitution that will ultimately among the religious Iraqi Shi'a and Sistani serve as a prelude to the disintegration of has proven to garner more respect among this Iraq. They fear that a federal entity in the segment of the population. Sadr has rejected north and south could lead to the the constitution as a scheme designed to dismembering of the nation, leaving the divide Iraq, and has made common cause Sunni in a landlocked rump state, with no with the Sunni rejectionists opposed to this access to the oil facilities. Some parties are charter. 16 willing to allow a measure of decentralization for the Kurdish areas, as this has been a fait 2) Kurdish Political Parties/KCL accompli since 1991, but are not willing to In writing the constitution, the Kurdish see their fellow Arab Shi'a in the south form parties are unwilling to give up the de-facto a similar federal entity, which could autonomy they have enjoyed since 1991, and monopolize the oil resources in the vicinity of aim to formally enshrine this autonomy the city of Basra. Some of the Arab Sunni in within the constitution, if not expand the the constitution-drafting process are Islamists powers they already enjoy. They would also and agree with the Shi'a demand for a greater seek to extend the geographic jurisdiction of role of religion in the state. However, one
146 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate cannot discount the fact that some of these its articles. These three organizations have Sunni Islamists view the Shi'a as an agreed that it will mobilize its followers to unorthodox school of Islamist jurisprudence, reject the constitution released on August 28, and suspicions could remain if not in what has been referred to as the "get-out- pronounced in public. the-no-vote."
After the collapse of the primarily Arab The National Dialogue Council formed in Sunni-dominated Ba'th, this segment of early 2005, but not in time to affect the Iraq's population fell into a political vacuum January elections. Officially it is not a formal with no united leadership to represent their party and describes itself as a coalition that views. Some segments aligned themselves includes former military officers, Arab Sunni with tribal leaders, others with the Islamist tribal leaders, and low-level Ba'thists. Its parties that slowly began to emerge, while spokesman, Salih al-Mutlaq took part in the others depended on Sunni insurgent groups drafting process, but has emerged as one of to make their voices heard. A number of the most critical opponents of its text. parties, associations, and coalitions have developed, competing to serve as the united The Iraqi Islamic Party was formed after voice of the Sunni. The three most outspoken of the fall of the Ba'th. Its leader Muhsin Abd them are the the Iraqi Islamic Party (IIP), the al-Hamid had served on the interim Iraqi Association of Muslim Scholars (AMS), and Governing Council, but took a critical stance the National Dialogue Council (NDC). The toward the United States after its attack on organizations were relatively new to the Iraqi Falluja in November 2004, and has criticized political landscape, and while the IIP fluctuated some provisions of the draft constitution. between its call for boycotting or participating in the January elections, the AMS was adamant The Association of Muslim Scholars that Iraqis should not vote in an election while (AMS) has emerged as a prominent group the nation was under occupation. These groups representing the interests of the Arab Sunni, strengthened their calls for a boycott after the though it has not declared itself as a political US-led assault on Falluja in November 2004, as party. This organization attempted to barter it primarily affected Arab Sunni residing in that the "political participation" of the Sunni sect town. However, these groups did not represent in the Iraqi elections to avoid an impending all Sunni in Iraq, even though the media may attack on al-Falluja in November 2004. Since represent them as the "voice of the Sunni." the attack took place, the AMS urged its followers to boycott the January elections, Some members of the IIP-AMS-NDC and remains critical of the constitution as coalition were among the additional 17 well. figures added to the drafting committee of the constitution. However, their inclusion did not A smaller organization that has criticized lead them to support the ultimate product, as the charter among this coalition is the they argued they were kept out of key General Conference of Iraqi Sunni (Al- negotiations and failed to agree on several of Mu'tamar li-Ahl al-Sunnah al-Iraq). It is led
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Ibrahim Al-Marashi by Adnan al-Dulaymi. The organization's fellow Sunni members, arguing that they had name is astonishing in the Iraqi political not been provided with adequate security. scene as it is one of the first groups that has They returned to the process a week later, but adopted the term "Sunni" in its title. While it complained of being excluded from the is known among Iraqis that groups like SCIRI negotiations afterwards. Such sessions were and Da'wa are predominantly Shi'a, or the often tense at times, riddled with racist and IIP, AMS, and NDC are predominantly sectarian comments. Nathan J. Brown, who Sunni, this is one of the first factions that has has followed the process closely, states how, taken a specific sectarian affiliation in its "Another deputy (and former defense title. 17 minister) lacked even this subtlety when he alluded to an attempt to 'Persianize' Iraq--a 4) Non-Aligned Factions clear reference to the attitude among some Other political factions involved in this Arab Sunnis that the Shiite are not fully process do not fall into one of these three Iraqi."18 During the January election debate, categories. Secular groups, such as the Iraqi the author scanned close to 500 media pieces National Accord or the Iraqi Communist from the Iraqi press and noticed how political Party, to name a few, are interested in leaders avoided using sectarian terms like ensuring that the constitution guarantees "Sunni" and "Shi'a," rather hinting at or liberal freedoms, human rights, and women's referring to such differences indirectly. In progress, even though the three reading over the same amount of media aforementioned factions have promised to pieces to analyze the constitutional debate, enshrine such rights in the process. These sectarian and ethnic terms proliferate the groups have participated in writing the draft Iraqi discourse and the delays in the but with varying degrees of influence, as they constitutional process have been blamed on have no mass political movement or armed the intransigence of rival ethnic and sectarian militia behind them. Nevertheless, this fact Iraqi groups. may be Iraq's Achilles heel, in that the three dominant factions within this writing process After failing to meet the original August are based on ethnic or sectarian affiliations, 15 deadline, Iraqi leaders pushed the due date and no movement has emerged to transcend to August 22. On that day, Hammudi, head these lines. While categorizing Iraq's society of the Iraqi Constitution Drafting into three main blocs is erroneous, their Commission, made a statement to reporters political factions are beginning to crystallize saying, "As you know, it is not possible to along these lines. convince or please all parties, but much of what they demanded was achieved in this Setbacks during the Writing Process constitution. We hope this constitution will Several setbacks delayed the writing be a real step toward stability."19 However, process and thus the TAL imposed the the National Assembly Speaker, Hajim al- August 15 deadline, which passed without the Hasani, broke the news at this conference that draft being finished,, much to the concern of the draft constitution was still incomplete: observers in the United States. The Sunni "The draft constitution was accepted today. Arabs walked out of the Commission in order There are however, as I have already to protest the July 19 assassinations of two mentioned, certain unresolved issues when it
148 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate comes to the endorsement of the draft- issues been disconnected from the drafting process. that require broader deliberations so that we Ghaith Abd al-Ahad, an Iraqi writer, may arrive at a constitution that is acceptable recounted how a Kurdish parliamentarian told to all Iraqis."20 What the Commission him of their isolation from the public as they submitted to the National Assembly on drafted the document in the heavily August 22 was an incomplete draft that barricaded green zone, "We [politicians] don't needed additional time to resolve outstanding know what's happening in the streets outside differences. On August 28, the Commission and the people outside don't care about what voted to approve a final draft text that did not are we doing here because of the violence have the support of the Arab Sunni members, they are suffering from." Ahad questioned the underlining that consensus was not reached essence of the writing process, "Does it by all three parties involved in the drafting matter if Islam is the main source of process. legislation or only a source, when Shi'a militia in the south of Iraq are enforcing hijab Voting on the Draft Constitution on women, banning alcohol and transforming A copy of the draft constitution released the south into 'Iran lite'?"22 on August 28 will most likely be distributed to every household based on the information Before the public votes on the document, from the UN ration card system, the same the Iraqi Independent Electoral Commission, basis used to register voters in the January created to provide the framework for January elections. Brown warns of another weakness 2005 elections, must establish the procedures in the drafting process: for the October referendum after the TNA passes the legislation for this process. The First, while elite bargaining is an question remains as to whether they will use essential element to any successful the same electoral system in which the entire outcome, it has largely supplanted any nation of Iraq was regarded as a single participatory process. Most electoral district, in order to avoid carrying communication has been one way: out a census. In January, a strict nation-wide many participants have spoken in formula of proportional representation was detail about the content of the used. The Sunni objected to this formula, as negotiations, making the process less they could not muster enough votes in their secretive but also risking the governorates to obtain seats in the Assembly. hardening of positions. Only a very An alternative could emerge where each small number of Iraqis will be able to governorate (muhafaza) would be regarded as contribute to the process with an electoral district, and assembly seats anything other than a "yes" or "no" would be given in proportion to the vote in vote.21 each governorate. Such a system could result in greater Arab Sunni representation in the Such a vote will be granted on October 15, provinces of Ninewa, al-Anbar, Salah al-Din, 2005. Even some of the Iraqis involved in the and Diyala. process have admitted that the public has
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On October 15, if a majority of voters Federalism nationwide approve the draft, it will be The TAL perscribed that Iraq adopt a federal ratified, and then elections for a permanent structure, a clause that the Kurds demanded. The National Assembly will be held on December UIA has followed suit by claiming they have a 15. If two-thirds of the voters in three or right to form their own federal entity. The Sunni more of Iraq's 18 governorates reject the rejectionists of the constitution fear that document, then according to the TAL, the federalism will ulitmatley lead to the current TNA will be dissolved and elections dismemberment of Iraq. The first article of the will be held by December 15 to form another Iraqi Consitution states that Iraq is a federal Transitional National Assembly. This would Republic: essentially start the whole process over from prior to the January 2005 elections. The new Chapter One: Basic Principles TNA would have to draft an entirely new Article 1: The Republic of Iraq is an constitution within a year. Some Arab Sunni independent, sovereign nation, and prefer this option, as it would allow them to the system of rule in it is a rectify their past mistake when they democratic, federal, representative boycotted the January elections, and would (parliamentary) republic. grant them greater input into a new draft constitution. However, this scenario would The Arabic word for representative, trouble the United States as it could niyyabi, is followed by the Arabic word for ultimately delay formulating an exit strategy "parliamentary" in parentheses, (barlamani), from Iraq. essentially utilizing an Arabized English word to erase any doubts about the drafters' THE ARTICLES OF THE intentions. However, the word used for CONSTITUTION AND THE IRAQI "federal" is ittihadi, and the drafters avoid DEBATE using the Arabized English word for The drafters of the constitution were able "federal," fidirali. Ittihadi could roughly be to reach a broad consensus on the division of translated as "federal," but could also be powers of Iraq's government among three translated as "unionist." The base of the independent branches: a legislative, word, ittihad, can mean "oneness," "unity," or executive, and judicial. Yet the precise an "alliance." Al-Ittihad, or The Union is the checks and balances among them still have to name of the Arabic daily of the PUK, as well be dealt with later. The constitution provides as the title of a newspaper in the United Arab for a parliamentary democracy in which the Emirates, which outside observers often leaders are elected by the assembly. forget is a successful example of an Arab federal nation. It seems the drafters used The constitution is divided into six ittihad as opposed to fidirali to stress that the chapters, with 139 articles all together. The constitution is designed to unite the nation, controversial articles within the Constitution rather than dismember it. revolve around six issues: federalism, sharing of oil revenue, the role of Islam, women's The power of the center, or the "federal rights, de-Ba'thification, and Iraq's identity. 23 authority," defined as al-sultat a –itihadiyya, is stated in a separate chapter:
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Chapter Four: Powers of the Federal Regions Authorities Article 107: The federal authority will Article 113: The federal system in the maintain the unity of Iraq, its republic of Iraq is made up of the integrity, independence, sovereignty capital, regions, decentralized and its democratic federal system. governorates, and local administrations. Article 108: The federal authorities will have the following exclusive Article 114 (1): This constitution powers: shall endorse the Kurdistan region, along with its established authorities, (1) Drawing up foreign policy, as a federal region. diplomatic representation, negotiating international accords and agreements, (2) This constitution shall endorse any negotiating and signing debt new regions that are established in agreements, drawing up foreign accordance with its provisions. sovereign economic and trade policies. Article 116: One governorate or more have the right to form a region, based (2) Drawing up and executing on a request for a referendum, which national defense policy can be presented in one of two ways: including setting up and operating the armed forces to a) A request by a third of the ensure the protection and members of each of the governorate security of Iraq's borders and councils in the governorates that its defense. desire to form a region.
b) A request by 1/10 (one-tenth) of The constitution stipulates that the Federal Authority will control all domains regarding the voters in each of the governorates that desire to form a region. international affairs and national security.
Article 117: Each region shall draft its This power of the Federal Authority, own constitution and define the contrasts with the Regional Authority, sultat region's authorities and al-aqalim, whose powers are stated in responsibilities and the mechanisms Chapter Five: to carry out these responsibilities in a
way that does not contradict this Chapter Five: constitution. Authorities of the Article 118 (1): The governments of Regions regions have the right to practice Part One: legislative, executive, and judicial
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powers according to this constitution, Turkmen fear that federalism will leave them except in what is listed as exclusive in an entity in the center of Iraq with little powers of the federal authorities. resources, or worse will lead to the collapse of the Iraqi state.
Thus, in theory, if the Shi'a residents in Abd al-Aziz al-Hakim, leader of SCIRI and any of Iraq's nine southern governorates were head of the UIA Coalition, argues that the to form a federal entity, referred to as a Shi'a have no interest in dismembering Iraq: "region" (iqlim) in the constitution, they have "One of the principles the Unified Iraqi the option to do so as long as they can find Coalition embraces is the need to maintain, another governorate willing to join. In other and not to encroach upon, the unity of Iraq. words, two governorates could form their This means rejecting any constitutional own entity or all nine can unite in this provision that might harm the unity of Iraq. " manner. However, article 121 of the 24 He has argued that federalism will prevent constitution states that the capital Baghdad the tyranny of the minority such as that of the cannot join any one of these federal units. Ba'thist centralized state
The legislation in these federations cannot Mas'ud Barazani stated since the Kurds contradict any of the articles of the current have made concessions on declaring draft constitution, and technically, no independence, they should at least be given federated unit can separate from Iraq as that federated status : "The Kurds have accepted to would violate the charter. While the draft be a part of Iraq, even if our people want demands that regional laws do not contradict independence and self-determination. With the constitution, the constitution itself is this sacrifice we ask that our conditions be vague and allows any future region guaranteed."25 considerable autonomy in establishing its own regional constitution. Thus, if the south Al-Mutlaq of the NDC said, "There is a formed its own region, it could establish disagreement on federalism. We still believe courts based on Islamic law to deal with that the current formula of federal system in personal or family matters. Iraq means that Iraq will be divided into sectarian and ethnic cantons. There will be a While stating various Iraqi positions on Shiite region, a Sunni region, and a Kurdish these points would prove to be too region. We completely reject such a thing, voluminous for such an analysis, the author and we will never accept it."26 The Iraqi has chosen arguments from the media survey Turkmen view on federalism announced by for each of Iraq's communities that the Iraqi Turkmen Front Representative in summarize their positions. The Kurds and Turkey, Ahmet Muratli, is as follows: "If the Shi'a political factions have maintained an borders of the Kurdish and the Shi'a regions alliance during the constitutional debate as are going to be delineated within a federative they both strive for a document that will structure, then ours should be clear as well. create a federal Iraq. However, while this We want the region that extends from Tal majority allowed them to draft this Afar to Mandali to be included within the constitution, both Arab Sunni and Iraqi new structure as the Turkmeneli ("Turkmen
152 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate nation") Federation. He also stated that them and will vary out the following historically Kirkuk has been included within duties: the Turkmeneli region and said that they should administer the city. 27 (1) Verifying the fair distribution of international grants, aid, and loans Revenue Sharing according to the need of regions and The issue of sharing oil revenues is governorates that are not organized connected to the articles dealing with into a region. federalism. The fear of the Sunni rejectionists is that they will have no guarantees to Iraq's However, mention of the exact oil in the south and north, especially if the percentages of the distribution is avoided Shi'a decide to form a federal entity in the directly in the following articles: future. Thus, the drafters attempted to assuage Sunni fears through various articles Chapter Four: Powers of the Federal in the constitution. The Preamble states: Authorities
Terrorism and "takfir" (declaring Article 109: Oil and gas is the someone an infidel) did not divert us property of all the Iraqi people in all from moving forward to build a the regions and governorates. nation of law. Sectarianism and Article 110 (1): The federal racism did not stop us from marching government will administer oil and together to strengthen our national gas extracted from current fields in unity, set ways to peacefully transfer cooperation with the governments of power, adopt a manner to fairly the producing regions and distribute wealth and give equal governorates on condition that the opportunity to all. revenues will be distributed fairly in a manner compatible with the The constitution declares in its first lines to demographical distribution all over distribute wealth fairly. The constitution calls the country. A quota should be for an independent body to oversee the defined for a specified time for distribution: affected regions that were deprived in an unfair way by the former regime or Part Four: Independent later on, in a way to ensure balanced Bodies development in different parts of the country. This should be regulated by Article 104: A public commission to law. monitor and allocate federal revenues The issue of the oil-rich city of Kirkuk has shall be established according to a law. It will include experts from the been controversial. The Kurds wish to federal government, regions, and administer it under its federal jurisdiction, for governorates and representatives for both sentimental and economic reasons, yet
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Ibrahim Al-Marashi the Arab side has been unwilling to concede The Shi'a and Kurdish factions are united on this issue. The constitutional solution was on the issue that they should profit from to delay the issue altogether: Iraq's oil resources. Both communities rarely benefited from the state's largesse during the Chapter Six: Final and Transitional Ba'thist era, and the revenues even helped Guidelines finance Saddam Hussein's repression of the north and south. In their view, a federation Article 136 (2): The responsibilities will prevent a tyrannical center from placed on the executive power of the monopolizing Iraq's oil resources and allow transitional government provided for for fair distribution of revenues according to in Article 58 of the Transitional Iraq's demographic structure. Some Sunni Administration Law for the Iraqi State would argue that Iraq's oil revenues were are extended to and will continue for dominated by the Tikriti clique in the Ba'th the executive power elected according and thus the Sunni in general did not benefit to this constitution until the from this wealth any more than did the Shi'a completion of (normalization, census, or Kurds. A federalist system that gave and ending with a referendum in control of oil to the Kurdish north and Shi'a Kirkuk and other disputed areas to south would only continue to deprive the determine the will of the people) in a Sunni of their rightful share in this resource. period no longer than December 31, 2007. Hussein al-Shahristani of the UIA argues that "those who did not participate in the Any oil contracts negotiated between the elections," a euphemism for the Sunni, Kurds and another party prior to the believe that "natural resources belong to the constitution remain valid: Iraqi people and that these resources should be run by the central federal government." He Article 137: Laws legislated in adopts the Shi'a line saying, "As for the Kurdistan since 1992 remain in effect, revenues, they should be equally distributed and decisions made by the to all Iraqi areas in proportion with the government of the Kurdistan Region - population and the needs of these areas."28 - including contracts and court The Sunni rejectionists have avoided stating decisions -- are effective unless they publicly that they oppose federalism for the are voided or amended according to mere economic reason of losing access to oil. the laws of the Kurdistan Region by Usually their comments are made subtly such the concerned body, as long as they as that of Adnan Dulaymi of the General are not against the constitution. Congress of the Iraqi Sunni, who said, "Respectable brethren, we call on all of you The preceding article seems to serve as a to show solidarity with us and cooperate with concession to the Kurds, who have already us to confront anyone who wants to fragment negotiated contracts with two Turkish firms Iraq and dissipate its resources. The resources to develop their oil resources. of Iraq are for all Iraqis."29 The Kurdish
position over oil revenues has focused less on demanding a percentage as opposed to stating
154 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate their demand for the oil-rich city of Kirkuk, does not exhibit an indefinite article as a realizing that if it fell under their federal separate word. In the constitution, Islam is "a jurisdiction their percentage of oil revenues source" (masdar), opposed to "the source" would increase substantially. Nevertheless, (al-masdar) of legislation. The following Iraqi President Jalal Talabani and leader of three sub-clauses guarantee that no law can the PUK has grudgingly accepted the fact this contradict the the principles of Islam, issue will not be resolved until 2007, "We democracy, or the rights cited in the called for a quick political solution to the constitution, mimicking the language of the issue of Kirkuk, but agreed to postpone this TAL. The charter also guarantees the Islamic solution to the end of 2007."30 identity (hawiya al-Islamiyya) of the majority of the Iraqi people and the full religious The Role of Islam rights for all individuals, as well as the The constitution attempts to define the freedom of creed and religious practices of precise role of Islam in Iraq, yet many of its people like Christians, Yazidis, and articles dealing with this issue remain Mandaean Sabians. ambiguous. The constitution seems to have followed the TAL which defines Islam as "the Further articles dealing with freedom of official religion of the State" that "is to be worship include, Article 39: "Iraqis are free considered a source of legislation:" in their adherence to their personal status according to their own religion, sect, belief Chapter One: Basic Principles and choice, and that will be organized by law." Article 42, no. 1 states, "The followers Article 2 (1): Islam is the official of every religion and sect are free in: (a) The religion of the state and is a basic practice of their religious rites, including the source of legislation: Husayniyya rites." The last clause was most (a) No law can be passed that likely inserted at the behest of the UIA, contradicts the fixed principles of acknowledging the fact that the martyrdom Islam. ceremonies commemorating the death of (b) No law can be passed that revered Shi'a figure Imam Husayn were contradicts the principles of forbidden by the Ba'th in the past. democracy. (c) No law can be passed that One of the most controversial articles contradicts the rights and basic among outside observers of this process deals freedoms outlined in this constitution. with the role of Islamic clerics in the
judiciary: The words "a basic source of legislation" is translated as masdar isas li-ltashri'. Chapter Three: The Federal Powers Ironically, the intense debate in outside Part Three: The Judiciary circles of definite or indefinite articles, or in Second: The Supreme Federal Court other words whether Islam is "the source of legislation" or "a source of legislation" is not Article 90 (2): The Supreme Federal reflected in Arabic. The language simply
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Court will be made up of a number of National Assembly, the party managed to judges and experts in Shari'a (Islamic amend many clauses to make them in line Law) and law, whose number and with the constants of Islam and the how they are selected will be defined aspirations of the Iraqis."32 In an interview, by a law that should be passed by Mas'ud Barazani was asked his opinion of the two-thirds' of the parliament United States turning a "blind eye" to the members. emerging role of Islam in the constitution. His response was: "The Kurds are struggling Outside observers have claimed that Article to achieve a new, federal, and democratic 90 could allow the clergy to dominate this Iraq. We will try to assert our positions and branch of the government, thus replicating will not retreat an inch. We will not allow the system applied in Iran and Saudi Arabia. Iraq to become an Islamic state."33 Nevertheless, there is a law controlling this process which suggests that the Iraqi clergy Women's Rights will not dominate this branch in a fashion The debate of women's rights in the similar to its neighbors. constitution has been connected to the issue of the role of Islam, based on a notion that a On the issue of the role of Islam in the charter with Islamic elements and symbolism state, the Shi'a and Sunni parties have found will automatically deprive Iraqi women of common ground in relation to the PUK and their rights. While such a connection may KDP. The Kurdish parties are secular and seem alarmist, nevertheless the articles believe that an Islamicized state will merely dealing with women's rights are few. One attempt to subsume the Kurdish identity right guaranteed to women that seems under the banner of Islam. Al-Hakim of revolutionary in the Arab region is Chapter SCIRI has advocated a role for Islam in the One: Basic Principles, Article 18, no. 1, constitution: "This is one of the pivotal issues which states, "An Iraqi is anyone who is born given the fact that the overwhelming majority to an Iraqi father or an Iraqi mother." In most of Iraqis are Muslims. Islam, consequently, Arab countries, citizenship is passed down has to be adopted as a main source of along patrilineal lines. Such an article has legislation, and no laws that violate Islam been criticized by male chauvinists in Iraq must be enacted." However he attempts to declaring their outrage that a woman could mollify opponents, "At the same time, we grant her child Iraqi citizenship if she is have to heed the democratic practices so as to married to a non-Iraqi. remove fears that Islam contradicts with such practices, and to stress that Islam does not Article 20 of this chapter also states that, seek to restrict the public freedoms stipulated "Citizens, male and female, have the right to in the Iraqi constitution."31 participate in public matters and enjoy political rights, including the right to vote and Tariq al-Hashimi of the predominantly run as candidates." This article is guaranteed Sunni, Iraqi Islamic Party opposes federalism by another provision inherited from the TAL, but agrees with the role of Islam in the allowing women a certain quota in the charter: "Within this framework and in National Assembly. Chapter Three dealing coordination with the forces outside the with "Federal Powers" covers "Legislative
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Powers." In the section dealing with "The the Sunni population fear that this would Council of Representatives," or serve as a discriminatory measure, given that Parliament, Article 48, no. 4 states, "The this segment of Iraq's population primarily elections law aims at achieving a filled the ranks of the Party. One of the first representation percentage of women that is articles of the constitution deals with this not less than one quarter of the council's issue: members." Chapter One: Basic Principles Most of Iraq's factions have championed Article 7 (1) : Entities or trends that women's rights, if only playing lip-service to advocate, instigate, justify, or them. Local women's rights' movements such propagate racism, terrorism, "takfir" as the Pioneering Women Institute and the (declaring someone an infidel), [and] Iraqi Women's Movement have attempted to sectarian cleansing are banned, influence the constitutional writing process. especially the Saddamist Ba'th in Iraq The head of the latter organization and its symbols, under any name. complained about her inability to do so: They will not be allowed to be part of "Through our close follow up during the last the multilateral political system in few weeks, we found out that some Iraq, which should be defined prominent Iraqi political forces are according to the law. determined to neglect and ignore our 34 demands in the constitution draft." A The use of the "Saddamist Ba'th" or Al- number of outside observers on the Ba'th Al-Saddami, emerged as a compromise constitutional debate argue that the inclusion between the Sunni participants and the Kurds of Shari'a provisions in the constitution and Shi'a drafters on the Commission. The automatically discriminates against women, word, Hizb ("Party") was dropped to assuage based on the assumption that Islamic law is the fears of low-level Ba'thists, some of inherently anti-women's rights. Nevertheless, whom joined the party out of coercion or for support for the inclusion of Shari'a in the the purpose of employment. However, one of constitution has come from some of the Iraqi the final chapters establishes a body to deal women in the TNA. For example, one such with the de-Ba'thification of Iraq: Turkmen woman, Fayha al-Abadin, said that 90% of women's rights in the constitution Chapter Six: Final and Transitional were approved. Yet she acknowledges her Guidelines support for Islamic provisions in the charter: Article 132: "We demanded that no article should be in The National De-Ba'thification conflict with the principles of Islam."35 Committee will continue its work as an independent body in coordination De-Ba'thification with the judiciary and the executive While the Kurdish and Shi'a drafters of the power and the executive authorities in constitution agreed on clauses that stipulate the framework of the laws regulating the de-Ba'thification of Iraq, elements among its work. The committee is linked to
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the Parliament. His statements underline one of the realities in Saddam's Iraq, where social The National De-Ba'thification Committee mobility or the opportunity to obtain an in Arabic is al-haya't al-wataniyya al-aliyya advanced degree was tied to membership in li-lijtithath al-ba'th. The "de–" construction the party. does not exist in Arabic; the term used to express the term de-Ba'thification, "ijtithath Iraq's Identity al-Ba'th," means to "tear out" or "uproot" the The constitution drafters struggled with Ba'th, in the same manner in which one defining Iraq's relation to the surrounding would "uproot" a tree for example. region. Kurds objected to wording that mentioned Iraq as an Arab state or part of the Shi'a and Kurds agree on the de- greater Arab nation. Moreover, Iraq's Ba'thification process, as they suffered the neighbors, particularly Iran and Turkey, brunt of the party's excesses. Yet the drafters would raise objections to Iraqi Kurds have made an effort to distinguish between declaring themselves part of the Kurdish Ba'thists who were Saddam loyalists and nation in the charter. The compromise was those who were merely low-ranking reached in the Chapter One Article 3 which members. Ibrahim al-Ja'fari, prime minister states: "Iraq is a multiethnic, multi-religious of Iraq and a Shi'a from the Da'wa Party, and multi-sect country. It is part of the argued that the de-Ba'thification measures Islamic world and its Arab people are part of were not necessarily discriminatory against the Arab nation." The word for "multi-ethnic" the Sunni, as some Sunni also suffered under is conveyed in Arabic as "muta'dad al- the rule of the Ba'thists. Al-Ja'fari adds that qawmiyyat," or a "multitude of nations." prominent Ba'thists included the Shi'a as While I have used the Foreign Broadcast 36 well. One Sunni in the Iraqi National Information Service's translation throughout Accord stated his reservations about de- the text of the charter, I would translate the Ba'thification: last phrase "its Arab people are part of the Arab nation" as, "and Arab people in it (Iraq) It is important to purge Iraq of the are part of the (greater Arab Nation)," or in criminals, whether they belonged to Arabic, al-Umma al-Arabiyya. the Ba'th or were tools in the former regime's hands, but not to uproot the A sub-clause in the same article states Ba'th Party as an Arabist ideology that that, "It shall be forbidden to withdraw the is still operating in several Arab Iraqi citizenship from an Iraqi by birth for countries and to allow those who did any reason. Those who have had their not take part in murders under the citizenship withdrawn have the right to former regime to continue their reclaim it and this should be regulated by normal lives and play a role in law." Such a clause refers to the Taba'iyya, or building the new society. The Iraqis who have Iranian ancestry and the majority of these are university Shi'a Fayli Kurds, whose citizenship was teachers, doctors, writers, and revoked during the Ba'thist era based on 37 military." accusations that they were not "true Iraqis" but in fact Persians. Article 4 states, "Arabic
158 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate and Kurdish are the two official languages for Iraq (al-lughatan al-resmiyyatan) and that Security Iraqis are guaranteed "the right to educate In terms of security, the Iraqi constitution their children in their mother tongues, such as stipulates that the military and intelligence Turkmen, Assyrian, Syriac, or Armenian, in service is not to interfere in the political arena government educational institutions, or any and must focus on national defense. A rarity other language in private educational in Arab constitutions, the Iraqi charter institutions, according to educational acknowledges an area of security often regulations." neglected in the region--human security. Article 35 no. 3 states, "Forced labor, slavery, Al-Mutlaq of the NDC was angered over and slave trade is forbidden, as is the trading the phrasing of Iraq's Arabness albeit stating, in women or children or the sex trade," all "They changed it to read that Iraq is part of problems that are rampant in post-Saddam the Islamic world only, as though we are Iraq. ashamed of our Arab character."38 Iraq's Vice President Ghazi Al-Yawir, while critical of Chapter One Article 9, no. 1 (b) states that the draft constitution's demands for "forming military militias (milishiat) outside federalism, nevertheless defended the the framework of the armed forces is deletion of the constitutional phrase, "The banned." The KDP and PUK have been Arabs in Iraq are part of the Arab people." reluctant to dissolve their militias, as has Al-Yawir defended this action as reflective of SCIRI which renamed its armed wing, the Iraq's identity and said, "We say that Iraq is Badr Brigade, the Badr Organization as a part of the Arab and Muslim world. The means of circumventing such legislation. world is not a race but a culture, geography, Former Prime Minister Iyad Allawi warned and history. Iraq is an active part in the Arab of such attempts by Shi'a and Kurdish parties world."39 to annex their militias as single units into the Iraqi Army, and urged their dissolution.40 While Arab Sunni may be a minority in Barazani on the other hand stated his refusal Iraq, some factions feel that connecting their to disarm his militia of Kurdish fighters, cause with the greater Arab Sunni world is a otherwise known as Peshmerga: "The militia means of empowerment. Hence, various Iraqi must not be disbanded in order to be Arab Sunni leaders have repeatedly called for absorbed within the Iraqi central army. The Arab League involvement in post-Saddam Peshmerga have to remain to defend the Iraq. This trend does not preclude the Iraqi country's north."41 Sunni organizations have Shi'a from Arab nationalism as well, but the complained the constitution would not Sunni's calls for greater Arab support can be guarantee protection from these militias viewed as a defense mechanism in post- which they accuse of operating against them Saddam Iraq. Thus, the constitutional on behalf of the Ministry of Interior. During phrasing of Iraq's Arab identity bears directly the constitutional writing process, a member on the Arab Sunni's minority position in Iraqi of the General Congress of Sunni in Iraq society. accused these militias of kidnapping Arab
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Sunni in Al-Mada'in District in Baghdad and as rivals the success of his policy in questioned how the charter would protect Iraq, as the success of U.S. strategy them from militia excesses.42 depends solely on the submission of the Iraqi draft constitution on IRAQI PERCEPTIONS OF THE schedule. President Bush is forgetting AMERICAN ROLE that the Iraqi people are the referee U.S. officials have pinned their hopes on a and have the first and final word on successful constitution that could quell the whether to endorse the draft Sunni insurgency. Nevertheless, these same constitution or not. 43 officials hoped that the January elections would also quell the same insurgency, yet The commentary underlines the perceptions violence only seemed to increase. One can of the American role in the process as a argue that the election failed since it did not means of satisfying Bush's domestic agenda. incorporate the Sunni into the political As a result, Iraqi leaders have stressed that scheme. At the same time, the constitution the United States did not pressure them has been rejected by the Sunni, thus it seems, during the drafting process in the hope of on the surface, that this charter will change giving the document the appearance of a little. In this regard, examining Iraqi purely Iraqi charter, as opposed to the TAL. perceptions of the United States is crucial. An Ibrahim al-Ja'fari, Iraq's prime minister examination reveals that while distrust of the denied any pressure: "Personally, no one has United States remains, Sunni will begin to put pressure on me, and I do not allow partake in the political process, albeit to anybody to blackmail me. The only one that defeat the constitution in a referendum. has the legitimate right to convince me is my Ironically, the Sunni's rejectionist "no" vote people."44 Abd al-Aziz al-Hakim, leader of may emerge as the best option for the United SCIRI, denied that the Americans influenced States. While it will delay the political the process. In a TV interview, he stated: process, it may finally incorporate the disenfranchised Sunni into the political Perhaps you still remember when the establishment and empty the ranks of the Americans occupied Iraq, they wanted insurgency. the Iraqi constitution to be drafted in locked rooms and then be presented An article in the Iraqi weekly al-Furat before the Iraqis for implementation. described the Iraqi dilemma over the But there was a clear national stand American role in the draft constitution against this. The religious authority process: insisted that the constitution be drafted by Iraqi hands and approved The most important thing is to please by the Iraqi people. This is what we President Bush and submit the draft agreed on. The elections were held constitution on schedule. This is in and this Assembly was born. 45 order for the U.S. president to appear on television screens the following His statement was a clear day, with a striking Hollywood smile, acknowledgement that this process emerged announcing to his competitors as well as a result of Sistani's legacy.
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from any justification." 49 Jiburi's party is Mahmud Uthman, a non-aligned Kurd who sympathetic to the Sunni rejectionist view first sat on the IGC and later on the and demonstrates how some figures and Constitution Drafting Commission, argued in media outlets among the Arab Sunni have an interview with the Sharqiyya network that softened their stance towards the United the Americans believe that anything that States. relates to Iraq relates to America. Yet, he stated that U.S. Ambassador Zalmay However, among the sample of 500 Khalilzad played an impartial role during the broadcast and print media articles used for process.46 Ironically, al-Hashimi of the this analysis, the negative views far rejectionist Iraqi Islamic Party described the outweighed the positive. While Hashimi's U.S. in a positive manner in an interview views of the U.S. role among the Sunni with the Milan-based paper, Corriere della rejectionists were positive, the NDC and Sera. He said, "In this mess over the AMS criticized the constitution as an constitution, for once they have conducted American tool to divide the nation. Salih al- themselves well." Prior to the January Mutlaq of the NDC states, "President Bush, elections, his party condemned the United who wants to tell the American people: I States as heavy-handed "occupiers," but have the elections held on the day I during this interview he said, "Instead, in this decided."50 Thus he views the Iraqis' failure impossible birth, the Americans have to meet the August 15 deadline as a means of conducted themselves like impartial resisting U.S. demands to accomplish the midwives." He acknowledged that the United draft by "a sanctified deadline."51 He further States, for once, intervened on behalf of the states that the rush in the constitutional Arab Sunni, who pushed for their inclusion process was due pressure from "Bush and on the drafting committee.47 In fact, al- Iran," ironically working together when it Hashimi maintained a dialogue with the comes to Iraqi issues, in his view. American side and held a meeting with the U.S. ambassador to express the views of his The AMS represents the more extreme party vis-à-vis the Unified Iraqi Coalition and views within the Sunni rejectionist spectrum. the Kurdistan List. 48 Al-Kubaysi, a cleric associated with the group, said in an interview with al-Jazira, A writer in the Baghdad paper, Al-Ittijah "We are, therefore, the weaker link and we al-Akhar, representing the views of the must not agree to write a constitution in Misha'n al- Juburi's Iraqi Homeland Party agreement with Rumsfeld, Khalilzad, or acknowledged that the United States has others. Iraq does not need a state whose age begun to work on behalf of the Arab Sunni. is no more than two and a half centuries. We She says, "The goal of Washington is that the are an ancient nation in history. We are the commitment of Sunni to the constitution will first to write the alphabet and enact help in reducing the urge of Sunni resistance constitutions."52 Al-Basa'ir, the newspaper and in the meantime, to deprive Jihadists, issued by the AMS, stressed that the who come across the borders to fight in Iraq, constitution was heavily influenced by
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Ibrahim Al-Marashi unwanted American input. An editorial ethnic groups should first try to find a way of writes, "Some of these people even stated that living together that reflects the power- the Americans have told them: We will come political realities in Iraq as accurately as up with a constitution for you if you do not possible, modifying and adjusting it to the reach an agreement,"53 alleging that the actual situation at a later date."56 A Canadian United States made such an implicit threat to daily describes Iraq's social fabric as the some of the drafters. following: "After all, Iraq is a nation of 27 million split along three vast fault lines: Shia DEBATES OF COALITION MEMBERS and Sunni Muslim Arabs, and Kurds. Saddam ON THE CONSTITUTION held it together, just barely, with a reign of Iraq's "Ethnic Divide" and the Constitution terror."57 Such a statement glosses over more The necessity of re-examining Iraq's visible "fault lines" in Iraq, such as class, constitutional debate outside of a narrow tri- rural-urban, religious-secular, and tribal ethnic prism is evident in how various media divisions within the three communities. The outlets provide disinformation on the subject. comment in the daily also alludes to another An editorial in London's The Sunday generalization in that these three communities Telegraph demonstrates how BBC coverage were kept together through a reign of terror, stresses these divisions between Iraqis. ignoring the fact that the three communities During an interview on the constitution, Dun managed to co-exist from 1921 to 1979, al-Zubaydi took offense when James before Hussein's rise to power. Naughtie on the BBC's Today program introduced him simply as "a Sunni." Zubyadi Essentializing Iraqis into three ethnic responded, "May I ask you to describe me as categories has led to other erroneous an Iraqi, not as a Sunni," emphasizing that his commentaries on Iraq's constitutional debate. Iraqiness formed the basis of his loyalty.54 The most prominent among them is the Even the Arab media could not resist falling notion that Iraq's Shi'a, as an ethnic group, into the trap of debating Iraq's constitution will automatically seek to emulate the system through a tri-ethnic lens. In an interview with of governance in Shi'a Iran via the draft the Dubai-based al-Arabiyah weekly constitution. In another German daily an program, "Plain Arabic" Iraqi President Jalal editorial states, "The Shiites are more likely Talabani was asked whether the Sunni will to listen to their (political) brothers in faith in boycott the referendum on the constitution on Iran. They had relied on them already back in October 15. Talabani said, "First of all, I 1991, when they dared rise up against would like to correct the term Sunni. I am a Saddam after the liberation of Kuwait and the Sunni, too. Most of the Kurds are Sunni. I United States failed to come to their think you mean the Sunni Arabs." 55 assistance. At the time, Shiite underground fighters of the Sciri and Dawa parties found The reported schism between Iraq's Sunni shelter in Tehran. " It is still debatable and Shi'a Arabs are essentially based on whether the Iranians played a role in the 1991 sectarian differences, nevertheless these uprising, and in fact some Shi'a have groups are described as monolithic ethnic mentioned to the author their resentment over entities in certain media outlets. For example, Iran not intervening to protect them from the one German daily states: "The three large onslaught of Iraq's Republican Guards who
162 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate ultimately quelled the rebellion. While Iran "Iraqi Perceptions of the American Role" in granted sanctuary to SCIRI and Da'wa, they this process has demonstrated that American also provided such arrangements for the pressure on the drafters could ultimately secular, Kurdish Sunni KDP and PUK in the undermine the constitution's legitimacy past. The editorial continues by stating: "The among the Iraqi masses. objectives of the three major ethnic groups differ so much that they are impossible to The letter continues to say, "The world meet in a central state. The Shiites want a has seen how similarly worded constitutions- second Shiite-Islamic republic."58 One of the in neighboring Iran and Saudi Arabia, for few Shi'a clerics who has urged the creation example-have led to disastrous restrictions on of a second Islamic republic is Muqtada al- the rights of women, ethnic minorities and Sadr, who has stated that Iraq should be religious minorities, including some based on theocratic rule similar to Iran. Muslims, to practice their religion-or not to Nevertheless, he had no role in writing the do so- as they choose."61 The letter proves constitution and has rejected the document, unnecessarily alarmist and ignorant of the thus contradicting the editorial's comments. regional realities of the Middle East. First, the drafter of this letter is unaware of the fact that The United States Saudi Arabia has no constitution. Second, This process has been closely watched in such a comment is misleading, as its fears the the United States, perhaps as much as in Iraq mention of Islamic law or Shari'a in the Iraqi itself. As Brown stated, "A diverse group of constitution. However, such mention of official and unofficial actors have lobbied the Islamic law is not unique among constitutions American government (in order to pressure of Arab countries that are otherwise the constitution drafters) on a variety of considered secular. The Syrian, Kuwaiti, and matters related to women's rights, minority Egyptian constitutions have all introduced rights, religious rights, and Islam." 59 Two Islamic law as a source of legislation. It was cases of American commentary on Iraq's the constitution in Ba'thist Iraq that resisted constitution deserve special attention. this trend in the Arab world. 62
Freedom House describes itself as, "a non- The U.S. Commission on International profit, nonpartisan organization, is a clear Religious Freedom (USCIRF), an voice for democracy and freedom around the independent federal agency, addressed a world." On August 4, 2005, the chairman letter to Ambassador Zalmay Khalilzad in wrote a widely circulated letter to Secretary late July. 63 The letter stresses the need to of State Condoleeza Rice stating, "To ensure secure the religious rights of Iraqi Christians a truly free Iraq, the United States must apply such as "Chaldo-Assyrians… [and] Baha'is in effective pressure on drafters to respond to the constitutional drafting process." The last Iraqi civil society groups pushing for statement is surprising given that while inclusive, democratic constitutional Baha'is are present in Iran, the author has language." 60 Nevertheless, the never heard of a Baha'i population in Iraq. aforementioned section in the article, entitled, The letter continues to criticize the Iraqi draft
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Ibrahim Al-Marashi for its omission of parts of "language found enough "no" votes among the Iraqis to ensure in the TAL." It concludes, "And on the draft constitution would emerge as an substance, the United States cannot, and artifact of Iraq's history. The tone of both the should not, stand silent."64 While the TAL Freedom House and USCIRF letters ignores was one of the most progressive documents the reality that it is not the Americans, but the in the region, the way it was drafted proved Iraqis who are responsible for writing a to be unpopular among the Iraqis. The TAL document that suits the realities and was never designed to serve as a basis for the complexities of their nation. permanent constitution, hence the title, "Transitional Administrative Law." United Kingdom The debate within the U.K. fluctuates This commission later published an op-ed between media reports optimistic about the in the Washington Post, stating, "In a constitutional progress and those who predict significant rollback from language in the the document will lead to Iraq's demise. An interim constitution, known as the editorial in the London Times entitled, Transitional Administrative Law (TAL), "Freedom and Unity" stresses that the draft current drafts would threaten regional Iraqi constitution "represents genuine stability and thwart stated U.S. goals of progress." Another commentary in the same promoting freedom and democracy." 65 While paper may serve as one of the more realistic the region has rejected the clauses calling for assessments of a constitutional process that federalism in the draft constitution, it seems has been generally misunderstood: unlikely the charter itself could destabilize the region, especially in comparison to the In any case, the criticism of the Iraq destabilizing effects that have occurred in the constitution-in-progress is overdone. wake of the actual 2003 war. The op-ed It is not a perfect model of further exaggerates the threat posed by the democracy; it was never going to be. Islamists in Iraq's constitution by stating that But neither does it enshrine an "Sharia jurists who may have no education or Iranian-style Islamic law. Not the experience in civil law- placing Iraq's least important evidence for that is judiciary in the company of those in Iran, that Iraq's Shia leadership, having Saudi Arabia, Afghanistan and Pakistan, watched with disdain and alarm which allow judges without traditional legal events to their east, have no desire to training to decide matters pertaining to model their country on the powder- constitutional law."66 The op-ed concludes keg theocracy next door.67 with the following: "The United States has fought a war of liberation for Iraq, at great Opposed to this commentary, critical cost in blood and treasure. It must not settle editorials from numerous London dailies now for anything less than the vision overplay the fear that the constitution is Iraq's articulated by Rice: 'a strong and vibrant and first step towards evolving into an Islamic vital democracy here in the heart of the Republic. An editorial in the London The Middle East.'" Nevertheless, a heavy U.S. Guardian states, "The Islamisation of Iraq, hand in drafting the constitution, as the op-ed through the proposed enshrining of a role for calls for, would have certainly garnered clerics in the courts and law-making, takes
164 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate the Shia-controlled south closer to the commentator states, "In the present Iraqi theocratic Iranian model."68 This recurring situation, elevating the sharia to the status of theme of Iraq's Shi'a attempting to emulate a fundamental constitutional norm enables Iran's Shi'a state is further evidence of how the Shiite majority groups to pass legislation the notion of Iraq's tri-ethnic prism manifests that can shape an Islamic republic. One itself in the media. different from the Iranian, but still an Islamic republic." While the commentator fears an In a commentary in the London Islamic republic can emerge in Iraq, at least Independent, Patrick Cockburn writes, "Once he acknowledges that the Iraqi Shi'a would be again, a single development--whose long- unlikely to mimic Iran's system of term significance is unclear--is being governance. oversold as a breakthrough on the road to establishing a new Iraq." 69 Cockburn is A more objective perspective is offered in correct as the handover of sovereignty in June the same paper via an interview with Emma 2004 and the elections in January 2005 were Bonino, an EU observer in Afghanistan. She viewed by the United States as states: "Almost all countries with an Islamic "breakthroughs" in ending the violence in majority include references to Islam in their Iraq, but have proved otherwise. However, constitutions," and that "This is the case in the writing of the constitution has differed in the overwhelming majority of the other that it has brought participants from all Islamic countries, in which the presence of segments of Iraq's society into the process. Islam in the legislation does not restrict civil Even if the Arab Sunni rejectionists will rights." Bonino, who has experience in the ultimately reject the draft charter, taking part region, further adds that while the Iranian in the referendum will be the first step in revolution gave a strong role to the Shi'a legitimizing Iraq's post-Saddam political hierarchy in Iran, she acknowledges, "I am structure, which would serve as a substantive still convinced that this is not the aim of al- breakthrough. Sistani, and of the Iraqi Shi'ites: they have never espoused the model of Khomeini's Italy theocracy. "70 Italy is often the "forgotten Coalition member" or "the forgotten occupier" REACTIONS FROM IRAQ'S depending on one's perspective. In fact, the NEIGHBORS AND THE REGION debate within Italy on Iraq's political The Arab World processes is quite robust, often with fresh Relations between Iraq and the Arab insights that are neglected in the international world can be characterized as tense. This debates on Iraq. Nevertheless, one media state of affairs is amply evident in the Arab piece demonstrates how Iraq's constitution media. At the regional level, disagreements has been misrepresented in the Italian debate. still exist between Iraq and the Arab League, In a commentary in Rome's La Repubblica given that the body criticized the ICG as an entitled, "Thus Dies a Lay Country, with the "unelected entity" and has refused to send an White House's Seal of Approval," the ambassador to Baghdad more than two years
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Ibrahim Al-Marashi after the war. Amr Musa, secretary general of province that has seen little benefit from an the Arab League, declared that the "entire equal allotment of Saudi oil.72 Arab Nation" opposed the Iraqi constitution on the day of its release and argued that a Of Iraq's neighbors, tensions between Iraq constitution that would lead to a federal Iraq and Syria are particularly tense, and this has was "a recipe for chaos."71 Amr Musa's been evident in the Syrian media. Jalal declaration may have been alarmist, given Talabani, president of Iraq, expressed his Iraq was a founding member of the body and outrage over an article that appeared in the would be unlikely to withdraw. Syrian paper Tishrin :
Some states in the Arab world fear It was dripping with poison against federalism, especially those with Shi'a the Iraqi people and their cause and populations such as Bahrain and Saudi glorifying the terrorists describing Arabia. The Saudi media has launched a them as resistance men. The paper vitriolic campaign to condemn articles was supposed to defend the Iraqi referring to federalism in the Iraqi people and their cause or at least constitution. A Saudi editorial in the Jedda- condemn those who kill the Shiite and based Arab News argues that the Iraqi draft Sunni Arabs. If they want to solve constitution serves as a "disaster in waiting." their problem with the Americans, This article, like many in the Saudi press they are welcome and this is their own have fallen into the trap of classifying Iraqis business. But is killing the women, into a tri-ethnic prism: "The two sides-- children, and people in mosques and Sunnis opposing federalism and Kurds and churches an Arab resistance?73 Shiites insistent on it--are so entrenched in their positions that the very outcome the Syrian papers have also vehemently Sunnis fear from federalism--that it will lead criticized the constitutional articles dealing to the breakup of Iraq--has moved a step with a federal Iraq. The Damascus based al- closer to reality." The article claims that the Ba'th paper featured a commentary arguing, Sunni are the champions of "the notion of "But the American objective of dwarfing Iraq Iraq," ignoring the Arab Shi'a who fought in through the recipe of federalism as a prelude an eight-year war with Iran to defend the to dismantling the Iraqi state as we have Iraqi nation. The article further states, "What known it since its establishment in 1921 and worries the Sunnis, and rightly so, is a federal ending the Iraqi national entity is not easy to system that gives the Kurds and the Shiites realize." 74 all the oil wealth because the oil is in the Kurdish north and the Shiite south. The criticisms of Iraq's constitution in the Federalism can work provided that enough of Jordanian media deal less with federalism Iraq's oil wealth is allocated centrally to and more with the fear that Iraq seeks to ensure that everyone benefits." Ironically, in emulate Iran's system of rule. An article in Saudi Arabia such a formula has not been the paper Al-Ghadd claims that the "Shi'a applied where most of the oil lies in the Seek Implementation of Wilayat al-Faqih. " predominantly Shi'a dominated al-Hasa The basis of his article is based on a single unnamed Iraqi source who alleges that SCIRI
166 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate will attempt to emulate Iran's Wilayat al- fetched, given that Sistani refuses to meet an Faqih system. 75 American official and such an edict was a mere rumor that Sistani later denied. Turkey The dominant themes in the Turkish media Iran vis-à-vis its constitutional process are the fear Within the region, the Iranian media have that federalism will result in an independent been the most supportive of Iraq's Iraqi Kurdish state which could destabilize constitutional process. This seems unusual the Kurdish population within its own given the heterogeneous fabric of Iran, where borders, and that an Islamic Republic could Azeris, Kurds, and Arabs have expressed emerge in its southern neighbor that would desires for various degrees of autonomy in ultimately form an alliance with Iran and the past. Nor do the Iranian media seem threaten Turkey and its secular system. For enthusiastic that another Islamic Republic example, Turker Alkan in a column for the will form on its borders. Perhaps the support paper Radikal claims that, "From that for Iraq's constitutional process lies in the perspective clergymen will inevitably play a realization that it will expedite an American determining role in Iraq's politics just as in exit from Iraq, which seems to be the Islamic Iran." He also claims that a "religion-based Republic's overriding security concern. constitution," will lead to a government similar to "the Taliban, the Saudi For example, the state-run Islamic government, or the Iranian regime."76 In the Republic of Iran News Agency (IRNA) Turkish daily, Cumhuriyet, Mustafa Balbay released a news item on August 22, urging offers a commentary under the title, Iraqi leaders to reach a consensus on the draft "Iraqnam," a play on the words "Iraq" and constitution, warning that failure to do so "Vietnam." He repeats a claim made in would only further destabilize the country.79 numerous media outlets that the Iraqi Shi'a The day after, Iran's Foreign Ministry seek an Islamic state through the constitution: Spokesman, Hamid-Reza Asefi, praised the "The Shiites, for their part, want an imam at Iraqi constitution as "very valuable" and the apex of the administration of the state. No encouraged its development.80 The IRNA TV matter who becomes government, they want network also gave an indirect congratulatory an imam above them."77 The author argues message to the United States by stating, "The that the Kurdish demands for a federal Iraq U.S. acceptance of the Iraqi people's desire to were dropped after Sistani allegedly issued an have an Islamic society is a great edict condemning federalism: "After this achievement for the Iraqi nation."81 statement the Kurds appeared to have shelved their demands for a federation. It seems to us Assessing the International Debate on Iraq's that it was the Bush administration that made Constitution al-Sistani… issue this statement."78 It is The purpose of the section was to unclear if the author is being sarcastic or highlight the dilemma over misinformation in conspiratorial minded, but the notion that the the media outlets vis-à-vis the constitutional U.S. ordered Sistani to issue the edict is far- debate. Many of these commentaries seek to
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Ibrahim Al-Marashi lobby and influence the United States in IMPLICATIONS FOR CONTINUING taking a greater role in drafting the document. VIOLENCE Not only are such commentaries erroneous, The United States seems optimistic that but the act of international lobbying itself the constitutional process will undermine could undermine the legitimacy of the Iraqi support for the Iraqi insurgency by including constitution as a charter developed by the elements among the disenfranchised Sunni in Iraqis, for the Iraqis. the political process. These Sunni have indicated their willingness to engage in this A large portion of the reporting of Iraq's process, albeit to defeat a constitution they constitutional debate is based on fears of an find detrimental to their community's interest. Iraqi Islamic Republic or a disintegrating While a unanimous rejection of the charter Iraqi state. Such commentaries are counter- could be viewed as a defeat by some productive and fail to give moral support to American circles, the very fact that these elements within the process, elements which Sunni opposed the document with ballots as seek only security for their nation rather than opposed to rifles could serve as a victory in a "second Iran" in the Arab world. Such itself. Yet at the same time, the constitution misinformation has had disastrous effects on could fail to unite the country's various Iraq's communities, especially the Kurds and factions if it is unable to deliver their core Shi'a. The prevalent thinking in the United demands. This would only swell the ranks of States during the 1980s and 1990s was that the insurgency and exacerbate Iraq's the Iraqi Shi'a were an ethnic group that otherwise violent political dynamics. would automatically follow Khomeini's lead after the 1979 Revolution. Such misguided Hammudi, chairman of the constitutional analysis influenced policy makers in the process, stated in regard to the October United States and could be attributed as one elections, "All Iraqis of all political shades of the reasons why the United States failed to will participate in the referendum. They will intervene during the 1991 uprising in the say yes or no. We will all participate in the south of Iraq. This matter is merely parliamentary elections at the end of the year. speculative at this point, but had the United The healthy sign in the political process in States had a better understanding of the Iraqi Iraq is that all have finally agreed that the Shi'a in 1991 and supported the revolt at that ballot boxes are the right way to maintain juncture, perhaps the entire 2003 Iraq war order and political activity instead of could have been avoided. Nevertheless, while bombings, plotting, and killing." 82 His it is useful delving into the past, the letters statement acknowledges that there are from Freedom House and the Commission on factions that oppose the constitution, but their International Religious Freedom indicate that mere presence in the election process would such misperceptions are still present and serve as a victory in itself. could undermine American support for various Iraqi Shi'a factions who have a Elements within Iraq's Sunni community genuine interest in a democratic constitution, who have expressed sympathies with the rather than a theocratic regime. insurgency, stated that they are currently willing to take part in the "Get-Out-The-No- Vote." Al-Luhaybi, a tribal leader in the NDC
168 Middle East Review of International Affairs, Vol. 9, No. 3 (September 2005) Iraq's Constitutional Debate who has expressed his objections to the However, the al-Qa'ida Organization in the constitution, has said, "We will strongly Land of Two Rivers (Tanzim Qa'idat al-Jihad participate in the elections, even if ballot fi Bilad al-Rafidayn) has vowed to kill boxes are blown up. We will participate, even anyone taking part in this process, regardless though, we are threatened by extremists." 83 of their sect or ethnicity. The Media Division of Abu-Musa'b al-Zarqawi's al-Qa'ida of Mizhar Hamdani, a tribal chief in another Jihad Organization in the Land of the Two insurgent stronghold south of Baghdad, Rivers, released audio clips from officials in (between the towns of al-Yusufiyya, al- their Legal Council that provide their Mahmudiyya, and al-Latifiyya) stated, "The religious legitimization for striking at anyone guerrilla movement will not hold its fire over taking part in the constitutional process. The the coming months, but on the day of the first "edict" by Shaykh Abu-Islam al-Qahtani referendum, the day of our victory, it will stated that the punishment is death for those look on from the sidelines."84 His comments who "chose to write a constitution to manage indicate that those willing to reject the life's affairs instead of God's constitution."86 constitution will not be deterred from The edict demands that, "the soldiers, violence. While the insurgents threatened to policemen, followers and supporters of those target anyone taking part in the January apostates" (i.e., the United States and the elections, especially in the Sunni dominated Iraqi government) repent immediately and areas where they operate, it remains to be join their forces. seen if they will allow voters to cast their ballots in the October 15 referendum. The second "edict" released by Shaykh Insurgents did kill three members of the IIP Abu-Hamza al-Baghdadi is entitled, "The while they were attempting to place posters in Constitution, the Creed of the Infidels." It Mosul that were encouraging voters to reject argues that "the election is a wicked the constitution. They were killed on charges outgrowth of the many outgrowths of of being "infidels" and "opponents of Islam. " democracy, which is the greatest act of Tracts have circulated in the Sunni areas polytheism in this day and age," and that all threatening to kill anyone registering to vote Muslims are ordered to not believe in in the upcoming elections. In towns such as democracy or a constitution. He argues that, al-Ramadi in the al-Anbar province, tribal "writing the constitution is one of the most leaders have offered to provide security for contradictory things to monotheism and those willing to vote on the draft charter. In God's religion and that the one who writes it this town, Hasan Zeidan, head of the National has placed himself as equal with the Creator Front of Iraqi Tribes, which is part of the of heaven and earth, with whom no human NDC stated, "There are people who are trying has the right to legislate laws because to cause the electoral process to fail. But this legislation is one of the distinctive qualities time we are ready to participate until the end, of God." 87 The edict specifically addresses even if that risks seeing the polling stations Iraq Sunni stating, "So you Sunnis in the explode!"85 Land of the Two Rivers, the right thing to do is that your arms should bear the slaying
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Ibrahim Al-Marashi swords to battle the worshippers of the cross, the Ba'th, politics in Iraq has shifted from a the Americans, and their supporters among clan that monopolized power to a plurality of the apostate blasphemous rejectionists" (i.e., competing ethnic and sectarian based parties, the Shi'a). Such a statement indicates that opposed to issue-based parties. While Iraqi Arab Sunni could be targeted during the differences between various ethnic and vote, despite the fact that some may be voting sectarian groups have been ever-present in to reject the document. In al-Qa'ida's opinion, Iraq, these differences were never articulated Arab Sunni should not even take part in the in public debate, nor used as a basis to vote, as the only means to expel the United criticize the other. This past tendency all but States from Iraq is via armed struggle. ended with the constitutional debate, where Regardless of the outcome of the ethnic and sectarian labels proliferated in the constitutional process, this faction within the political discourse. The prospect of a civil insurgency will continue its violent campaign war is still a matter of debate, but a "civil war until it has achieved its goals, which would of words" has definitely emerged within this be akin to a Talibanesque state in process. The violence which has gripped Afghanistan. post-Saddam Iraq prevented the emergence of a stable politic process, creating a vacuum CONCLUSION which forced Iraqis to seek refuge, The purpose of this analysis aimed to protection, and representation via their demonstrate that the draft constitution did not sectarian and ethnic parties. While the media receive consensus among all parties, despite has over-simplified Iraq's social divisions concessions from all sides, and that reaching along the lines of Sunni, Shi'a, and Kurd, the such consensus may be impossible given the post-war chaos has preordained Iraq's demands articulated by the various parties. destiny, where misperceptions are slowly The issue of federalism is the core demand of becoming reality. the Kurdish and Shi'a political parties in the Assembly, but would not satisfy all the Arab One of the most persistent misperceptions Sunni factions. Kurds conceded on Shi'a is that the Shi'a of Iraq, as a monolithic demand for a greater role of Islam in the group, will use the constitution as a means constitution, in exchange for a greater degree for their parties to establish a separatist of autonomy in the north, creating a federal Islamic Republic. Similar thinking proved system to which the Sunni parties objected. unfounded during the Iran-Iraq War, as the While bargaining among three parties was Shi'a of Iraq resisted Khomeini's exhortations difficult, the parties themselves suffer from to revolt against the Iraqi government, divisions. Secular Shi'a like Iyad Allawi and proving that their national loyalties overrode religious figures such as Muqtada al-Sadr their sectarian identity. Moreover it oppose federalism, yet some Arab Sunni were demonstrated that some Shi'a were simply involved in writing those very articles. resistant to the Ayatollah's vision of an Islamic Republic in Iraq. Yet, in the chaos Examining the constitutional debate in that has become the post-Saddam political Iraq has revealed a troubling phenomenon in order, the Shi'a--who have been considered Iraq's politics--its increasing ethnic and ethnically Arab just like Iraq's Sunni--are sectarian nature. In the aftermath of the fall of emerging as an independent ethnic group.
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This evolution parallels that of the Bosnian Muslims, another religious community which The question remains as to how the Iraqis emerged as an ethnic group during their civil will vote on October 15. The UIA and KLC war. will urge their various constituencies to vote for the constitution on that day. While Kurds Elements of the Iraqi Shi'a, at one time, will most likely heed the call to support a were the vanguard of the Arab nationalist document that guarantees the autonomy they movement in Iraq. In the beginning it was have strived for, elements among the Shi'a those Shi'a who swelled the ranks of the Arab may heed Sadr's call that the document is a Socialist Ba'th Party. The UIA's calls for a foreign tool designed to divide the Iraqi federation indicate a new trend in Iraqi nation. As long as a majority in the political thinking. In the 1980s and 1990s, predominantly Shi'a and Kurdish governates Shi'a parties claimed the entire nation of Iraq vote in favor of the charter, the UIA and KLC as theirs, as they were the majority after all, would have achieved their aims. The voting and they dismissed any notion of attempting pattern in the predominantly Sunni areas to form a pro-Iranian Shi'a mini-state in the remains as a "wild card." The NDC-IIP-AMS south of Iraq. The recent calls for federalism coalition has promised to mobilize the Sunni could be viewed as an indirect against the charter, yet they do not have disenchantment with the Iraqi nation. The similar access to funds nor to Iraqi media insurgency and increasing violence in the outlets as do the parties in the Assembly. center has spurned them to at least keep the They have resorted to "getting-out-the-no- peace in their areas and to leave the Arab vote" through traditional means via Friday Sunni to their fate. The Shi'a parties are speeches at the mosques and holding protests. unlikely to call for secession from Iraq. However, like the Kurds, they have shown One can view both outcomes of the that they want to disassociate themselves constitution vote as a success, as elections from the instability in the center, and a will be held on December 15 regardless. If federated region in the south could be an the constitution passes, elections for a "insurance policy" if the center does collapse. permanent assembly will be held on that date and the political process will enter a new In this post-Saddam structure, the few phase. If the constitution is rejected, it would secular parties that have attempted to not necessarily indicate a failure for Iraq. transcend these ethnic and sectarian The Iraqis would have gained experience in differences include the Iraqi National Accord the drafting process and would have learned and the Iraqi Communist Party, both of which what a new constitution needs to succeed a lack a large base of grassroots support and public referendum. Granted, the process will were unable to heavily influence the outcome start over, but the Sunni have stated that they of the constitutional process. Even if the will not make the mistake of boycotting the constitution passes on October 15, it will not elections and will seek to influence Iraq's solve this problem entrenched in Iraq's new constitution via its politicians rather than political landscape. via its insurgents.
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Ibrahim Al-Marashi
* Ibrahim Al-Marashi (Ph.D. Oxford 10 ICG, "Iraq: Don't Rush the Constitution," University) is a visiting faculty member at ICG Middle East Report, No 42. June 8, Sabanci University in Istanbul, Turkey and a 2005, pp. 2-3. Fellow at the Institute for Middle East 11 Ibid. Progress. 12 Ibid. 13 Nathan J. Brown, "Iraq's Constitutional NOTES Process Plunges Ahead," Carnegie Endowment for International Peace, July 2005, p.7. 1 Ibrahim Al-Marashi, "Iraq's Microwave 14 "Iraq: Shiite Leader Shaykh al-Ya'qubi Democracy," Zaman, July 11, 2005. Comments on Constitution Draft," Al-Furat www.zaman.com. (Baghdad), Aug 18, 2005, p. 3, translated by 2 For a historical overview of Iraq's Foreign Broadcast Information Service constitutional processes see Charles Tripp, A (FBIS). History of Iraq (Cambridge: Cambridge UP, 15 "Al-Sistani Denies Issuing Statement 2000) and Phebe Marr, The Modern History of Objecting to Federalism, Constitution" Al- Iraq (Boulder, Colorado: Westview Press, Najaf News Network (Internet), Aug. 31, 2004). 2005, translated by FBIS. 3 International Crisis Group (ICG), "Iraq's 16 Radio Free Europe/Radio Liberty, "Sunnis Constitutional Challenge," ICG Middle East Weigh in on Draft Constitution," Iraq Report, Report, No. 19 (November, 2003), p. 17. Vol. 8, No. 30, Sept. 2, 2005. 4 Ibid. 17 "Iraq: Sunnis Reject Draft Constitution, 5 Ibid., p. 11. Warn against Portioning," Al-Jazira Satellite 6 Ibid. Channel Television, Aug. 24, 2005, translated 7 The text of the TAL can be viewed at the by FBIS. CPA's website www.cpa-iraq.org. While the 18 Nathan J. Brown, "Iraq's Constitutional CPA was dissolved after sovereignty was Conundrum," Carnegie Endowment for handed over to the Iraqis in June 2004, the International Peace, August 31, 2005, p.2. website will maintain its contents for 19 "Iraqi Officials on Draft Constitution "historical purposes" until June 2006. Discussions, Presentation to Assembly," Al- 8 International Crisis Group, "Iraq's Transition: Sharqiyah Television (Baghdad), Aug. 22, On A Knife Edge," ICG Middle East Report, 2005, translated by FBIS. No. 27 (April 2004), pp. 24-28. 20 "Iraq: National Assembly Speaker Outlines 9 For an overview of Iraq's Election Debate Pending Issues in Draft Constitution," Al- see Ibrahim Al-Marashi, "Boycotts, Sharqiyah Television, Aug. 22, 2005, Coalitions and the Threat of Violence: The translated by FBIS. Run-Up to the January 2005, Iraqi Elections," 21 Nathan J. Brown, "Final Update on Iraq's Middle East Review of International Affairs Constitutional Process," Carnegie News, Issue 1, (January 2005), Endowment for International Peace, August http://meria.idc.ac.il/news/2005/05news1.htm 12, 2005, p.3. l. 22 "UK Commentary Says Iraq's Political Process Failing due to 'Greed, Isolation,'" The
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Observer, Aug. 28, 2005, transcribed by 31 "Leading Iraqi Figure Al-Hakim Justifies FBIS. Extension of Constitution Deliberations," Al- 23 The Arabic text of the constitution was Iraqiyah Television, Aug. 16, 2005, translated found on the Iraqi website, "Encyclopedia of by FBIS. the Two Rivers," Mawsu'at al-Nahrayn, 32 "Al-Jazira : Iraqi Islamic Party Press
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41 "Italy: Iraqi Kurdish Leader Barzani Urges 52 "Iraqi Sunni Cleric Reads Statement, Secular Constitution for Iraq," La Repubblica Answers Questions on Draft Constitution," , Aug. 22, 2005, translated by FBIS. Al-Jazira Satellite Channel Television, Aug. 42 "Sunni Leader Statement Names 24, 2005, translated by FBIS. Requirements for Acceptable Draft 53 "Paper Strongly Criticizes Iraqi Leaders, Constitution," Al-Jazira Satellite Channel Accuses Them of Being Liars, Hypocrites," Television, Aug. 24, 2005, translated by Al-Basa'ir (Baghdad) , Aug. 24, 2005, p. 1, FBIS. translated by FBIS. 43 "Iraqi Constitution: Writer Criticizes US 54 "UK Editorial Accuses BBC of Not Intervention, Draft Constitution," Al-Furat, Covering 'Reality' of Iraq's Democratic Aug. 27, 2005. p. 12. Progress," The Sunday Telegraph, Aug. 28, 44 "Iraq's Al-Ja'fari Denies US 'Pressures,' 2005, transcribed by FBIS. Views Sunni Stand on Ba'th, Federalism," Al- 55 "Iraqi President Discusses Draft Iraqiyah Television, Aug. 28, 2005. Constitution, Security Situation, Saddam's 45 "Leading Iraqi Figure Al-Hakim Justifies Trial," Al-Arabiyah Television, Aug. 28, Extension of Constitution Deliberations," Al- 2005, translated by FBIS. Iraqiyah Television, Aug. 16, 2005, translated 56 "German Daily Sees Iraqi Draft by FBIS. Constitution as Chance to Make 'Fresh 46 "Constitution-Drafting Committee Member Start,'" Die Welt, Aug. 29, 2005, p. 6, on Pending Issues; Sunni, Kurdish translated by FBIS. Demands," Al-Sharqiyah Television, Aug. 57 "Canada Daily Praises Iraqi Efforts to 18, 2005, translated by FBIS. 'Shape Their Own Destiny' in Constitution," 47 "Iraq's Al-Hashimi Calls US 'Impartial The Toronto Star, Aug. 24, 2005, translated Midwives' in Constitution Talks," Corriere by FBIS. della Sera, Aug. 28, 2005, p. 9, translated by 58 "German Daily Sees Lack of Time, FBIS. Federalism as 'Dilemmas' in Iraqi 48 "Al-Sharqiyah: Sunni Representatives End Reconstruction," Frankfurter Allgemeine, Meeting with US Envoy on Constitution," Aug. 29, 2005, p. 1, translated by FBIS. Al-Sharqiyah Television, Aug. 27, 2005, 59 Nathan J. Brown, "Constitutional Drafting translated by FBIS. Update," Carnegie Endowment for 49 "Iraq: Writer Warns US, Iraqi Leaders International Peace, August 8, 2005, p. 1, against Excluding Arab Sunnis," Al-Ittijah al- translated by FBIS. Akhar (Baghdad), Aug. 27, 2005, p. 17, 60 Text Available from the Freedom House translated by FBIS. Website, 50 "Iraqi Constitution-Drafting Committee
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July 26, 2005, available at Al-Ghadd (Amman), Aug. 19, 2005, p. 15,
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