Thursday, August 25, 2005

The Proposed Draft of the Iraqi Constitution (as of 8/25/05)

Click HERE (PDF file) if you would like to read the actual Draft of the Iraqi Constitution being debated this week.

Key issues of concern for the Sunni minority members include:

Federalism: I'm sure what the key sticking points are in the document. I know that the Sunni participants are concerned that the current Draft provides the opportunity for "Regions" and "Provinces" to exercize a wide range of discretionary authority. For example, "Article (133): It is permissible to delegate the federal government's authorities to the provinces or vice versa, with the two parties' approval, and this is regulated by law." It seems that here, certain "provinces" could be granted powers otherwise granted only to the federal government in the constitution. I don't know what this means. It almost sounds that, by agreements, certain areas of Iraq could legislate and govern almost independently of Baghdad?

A related concern is that generated by "Article (150): Laws legislated in Kurdistan since 1992 remain in effect, and decisions made by the government of the Kurdistan region--including contracts and court decisions--are effective unless they are voided or amended according to the laws of the Kurdistan region by the concerned body, as long as they are not against the constitution."

The fact that the constitution also permits existing "provinces" to join together by common consent and form larger "regions" means that all the northern Iraqi provinces could join to form one vast region comparable to a "Kurdistan" and the southern provinces could unite as one vast region dominated by Shi'ites. In these two powerful regions, minority citizens would have little influence on regional affairs which would also, of course, include the two sections of Iraq's vast oil reserves.

The few provinces with sunni majorities (I believe there are three of them) could also unite to form one region as well, but there would be little economic wealth or even large swaths of productive agricultural land in these areas. Sunnis have a good reason to feel threatened by these possibilities.

Division of Federal Power

Sunnis are concerned over the amount of power being granted to the president and his/her cabinet. Since it is unlikely that a Sunni will ever hold this office, their only hope to wield influence over policy and power will be through the council of representatives (where they one day might be able to block legislative matters requiring a 2/3 majority.) Accordingly, the more power granted to the council of representatives, the happier the Sunnis will be.

Former Baathist Party Members

The Constitution specifically targets former Baathist Party members for ostracism from the new government. Articles (7) & (145-3rd) & (148-3rd-c & d) and continues the de-Baathification Committee until dissolved by law. Article (145-1st & 2nd).

It is notable that Article (7) specifically names "the Saddamist Baathist Party" as the pariah. Being a "Baathist" in and of itself will not disqualify anyone. Syria, for example, is governed by a Baathist Party. This appears to allow for a little bit of wiggle-room for folks who worked for Saddam's party or government but was not a member of his party.

Other Matters

I am still somewhat baffled over the lack of specificity in the second legislative body called the Council of Union in Article (63). It seems as though this will be a body that reviews proposed legislation that may affect a particular region and make recommendations of some sort to who? The Council of Representatives? The President?

I am also baffled by Article (151) that reads, "A proportion of no less than 25% of the seats in the Council of Representatives is specified for the participation of women."

Since the Constitution states that each member of the Council of Representatives will represent approximately 100,000 Iraqis, that means, with a population of over 26,000,000, there will be 260 members + or - in that Council. The Constitution requires that at least 65 (25%) of them be women.

If the Representatives are freely elected as per Article (48) "by general, direct secret ballot" how in the world can they legally require that at least 65 women get elected?

Overall Impression

I feel that the opening general, foundational principles and rights laid down in in the Preamble and in Articles (1)-(48) are extrememly commendable and, indeed, visionary. Even with the provisions designating that "Islam is the official religion of Iraq and is a basic source of legislation" (Article 2) the rights of other religions are also fully affirmed (note that it says, "a" basic source..... and not "the" basic source of legislation. This is a very big distinction).

I also do not feel threatened by the inclusion of experts on Sharia being included on the Supreme Federal Court (Article 90) although I could change my mind should future legislation designate them as a majority of this Court's members).

In any case, read the text for yourself. By next Monday, God willing, Iraq will have a Draft Constitution endorsed by Kurds, Shi'ites and Sunnis to present to the Iraqi people for their approval.