Rough Draft

Iraq’s interim constitution is a hopeful sign that political progress is possible there.


The fundamental problem in Iraq is the problem of governance.

Iraq’s prospects hang on the ability of its different — and in some cases sharply adversarial — ethnic groups to accommodate each other. So the news on Monday that the Iraqi Governing Council, after weeks of contentious negotiation, had succeeded in drafting a temporary Iraqi constitution, was greeted in and out of Iraq with something close to triumph.

(The triumph was short-lived, of course, because on Tuesday a bomb killed more than 140 Shiites, in the most devastating attack since the war.)

The U.S. approved the draft, and Colin Powell called it “a major achievement.” But everybody agrees that the document is imperfect. Some divisive issues — the format for elections and the composition of the interim government, for example — were put off until later.

The interim constitution will likely remain in place until 2005. It has all the elements of a Western-style democracy: an independent judiciary, civilian control of the military, and a system of checks and balances to prevent any branch of government from becoming too strong.

It also contains a bill of rights similar to the United States’ guaranteeing civil liberties like freedom of speech, assembly, and the press, which according to Adnan Pachachi, the top man the U.S.-appointed Governing Council, is “something that is unheard-of, unprecedented in this part of the world.”

Pachachi told the Washington Post that the constitution also features a broad social contract that may be more extensive than some in the Bush administration favor — certainly more extensive than they’d favor in this country. The document guarantees health care, education, and the right to strike, but not the freedom to bear arms.

The document calls for nationwide elections to be held no later than Jan. 31, 2005. In those elections, Iraqi voters would pick a 275-member national assembly, which would then choose a president and two deputy presidents. The three together would choose a prime minister, where much of the executive power would reside.
The constitution does not make clear — and nor was it expected to — what sort of government will rule between June 30, when the U.S. is set to hand over power to Iraqis, and the day the assembly is seated.

The constitution also ensures broad rights for women: it sets a 25 percent figure as a goal for women’s involvement in the national assembly.
“This has no precedent in the past or present time,” Dr. Raja Habib Khuzai, a female Shiite member of the council, said at the news conference announcing the constitution. “Not in the Middle East, and not in America.”

One major compromise centered around defining the role of Islam in Iraqi law and politics. Last month, L. Paul Bremer III indicated that he would strike down any attempt to set up an Islamic republic. The interim constitution designates Islam as the official religion of the Iraqi state but at the same time guarantees the free exercise of religion. Iraqi leaders did insert language that would forbid laws that undermine Islam. Islam is described as only “a source” of legislation among others, not “the primary source” of law, as some Iraqi leaders wanted.

What’s next? The IGC still needs to draw a plan to choose a structure for an interim government and hold elections; the U.S. proposed plan of a system of regional caucuses was criticized as unwieldy, inadequate, and confusing to most Iraqis. A U.N. fact-finding mission said that elections would not be feasible until the end of 2004. Grand Ayatollah Ali Sistani has called for elections on the U.N.’s timescale. There is also concern over a smooth transition of power from U.S. to Iraqis on the scheduled date of June 30, largely because of security issues.

But the Boston Globe points to the fact that Sistani’s involvement is a good sign that Iraqis — not Americans — are in control of major decision making:

“Now, as a UN advisory team and the senior Shi’ite Ayatollah Ali Sistani bargain in public over the calendar for elections of a representative government in Iraq, it appears that the reins are slipping from the hands of the Bush administration. This is a good thing — for Iraqis, for the United Nations, and for America. Sistani is playing a positive role when he rejects a US scheme to select an interim government and instead calls for democratic elections by the end of the year. These circumscribed interventions in secular politics do not mean Sistani is abandoning the quietist tradition that prevails among Shi’ite religious authorities. Unlike Iran’s Ayatollah Khomeini, Sistani and like-minded Shi’ite scholars teach that the clergy should hold itself apart from the world of politics.

Sistani’s departures from that rule aim not to create a theocracy in Iraq but to foster a birth of representative government. This is a crucial distinction. Sistani’s reasoning has consistently been that of a democratic patriot wary of US intentions. He has insisted that Iraqis be permitted to choose their own legislators, who will then form a government and write a permanent Constitution.”

The Economist points to the troubles to come in translating ideals into a permanent constitution:

“Also soon after the elections, in theory, comes the writing of a permanent constitution, to be endorsed in a referendum. This could be trickiest of all. It is one thing to draft a document with a planned lifespan of a year or two; forging a constitution for all time will be quite another. All of today’s difficult issues, such as Kurdish autonomy and the role of Islam, will resurface. So too will the balance between proportionate representation in government (as advocated by the majority Shias) and equal representation for all ethnic groups (as pushed by the Sunni Arabs and Kurds). America will have no official say in the permanent constitution, though it will doubtless hope that many of the liberal values endorsed this week will have become indispensable by then.”

The Washington Post comments on its editorial pages that while it’s encouraging that Iraqis were able to compromise to create this interim constitution, it’s valuable to remember that words don’t always lead to actions:

“The boast by U.S. and Iraqi officials that the Iraqi charter is unprecedented in the Middle East is only partly correct; sadly, several Arab autocracies, including Egypt, have written constitutions that also embrace Western principles of liberal democracy. Words on paper don’t always determine practice in the region, which is why the decisive political tests in Iraq still lie in the future.

But if yesterday’s accord signals a willingness by Iraq’s leaders to step back from maximalist demands and recognize the legitimate interests of other religious and ethnic groups, the prospect that Iraq will manage to turn a corner this year will be considerably brighter.”