Thursday, April 15, 2004

still busy

I'm still busy, however here's a little something I banged up. It's on the Iraqi Interim constitution. Now it was written before the current crisis, so it may be outdated. I am a bit late too, the constitution has been available for over a month.

Comment away.

thoughts on the iraqi constitution
The interim constitution is strongly federal and modeled on the US constitution, but borrows elements from Canadian federalism, a US-inspired Bill of Rights, a ceremonial presidency and strong prime-minister much like India, Germany, and Israel, and an elected national assembly that resembles Great Britain’s along with an independent judiciary much like the United States . The constitution is very much a hybrid of several constitutions.

The Constitution’s very federalism designed to decentralize power may be Iraq’s undoing. The country’s divide along ethnic and religious identity lines are strong and may be the likely base of division in the federal system. Preservation of minority rights are an important thing in any democracy and represents the heart of the democratic process according to some. Even now, the current 25 member Iraqi governing council is divided in much that way: along ethnic and religious lines. The current constitution assumes that all ethnic groups within Iraq represent singular political blocs. This system could prove to be unstable, as the lesson of Lebanon has proven . In addition, the nation’s many minorities are granted rights to maintain their previous autonomy given under Saddam, much like the Kurds.

Minority rights are strongly protected at the expense of the majority Shia population who make up 60% of Iraq’s population. Because the Kurds have a permanent veto, it allows them to have the upper hand over the majority Shia, who would likely dominate any Iraqi Assembly by sheer force of numbers, as they do constitute a majority of Iraq’s population. The Shia have objected to the Kurdish veto that allows their provinces of the nation to reject any constitution that does not coincide with their interests . For the Kurds, however, this clause is non-negotiable . This could represent a time bomb waiting to go off.

In addition, the Kurdish autonomy also presents a problem to the Constitution. Saddam’s regime largely left the Kurds alone following the 1991 War with the United States and its UN allies. The new constitution also does much of the same. The Kurdish region has legislative and judicial independence and vaguely defined powers of local government. Article 54 of the interim constitution provides these rights to the Kurds . It implies, since Article 54 allows the Kurds to maintain their own internal security forces that they could operate independently of the central government located in the capital of Baghdad.

Article 7 states that Islam is the central basis of Iraqi law, along with the democratic process. However, the constitution is vague on where individual liberty and religious law coincide. Here in the United States, individual liberty such as who has the right to marry whom, sexual practices in private between consenting adults, the use of “God” and religion in public forums and women’s right to choose are all heavily controversial topics and the American constitution is largely secular in language and origin. It also does not state which branch of Islam will make up the basis of Iraqi law. Given that the Shia are the majority of the population, it can be inferred that the Shia could legislate a more conservative version of Islam into law however the Kurdish and Sunni veto could override this. Also, as the Shia trend toward a more religious state and the Kurds trend toward a more secular state , this could hasten a further divide in the nation.

The transition period between June 30 and January of 2005 is without clear leadership. The current Iraqi Governing Council, handpicked by the United States, will likely retain control over Iraq while elections are prepared for January. The constitution does not provide limits on what this council may do or decide for Iraq. The constitution officially goes into effect on July 1, 2004, yet there will be a period of several months where the three branches of government enumerated upon are not active. The Council will apparently also retain much of its deal making status, including if it chooses, an invitation to allow US and Coalition Forces, currently numbering more than 100,000, to remain in Iraq. In addition, the interim constitution was imposed by a handpicked governing council and its creation was supervised by the United States. The general resentment of the United States within Iraq could cause a resentment of the constitution by the Iraqi people, who may or may not embrace the interim constitution’s federalism. Given recent violence and unrest, this could unravel any attempts at bringing true democracy to the war-torn region.

The Interim Constitution is imperfect in addressing these major issues. While it should be commended for protecting the rights of women and minorities, a move fairly unprecedented in the Arab World, it is fairly vague in other major areas. It does not address the problems that the veto given to the Kurds and other minority groups could cause given that an elected Assembly would likely be largely Shia due to population demographics. The interim constitution does not state if the current Iraqi Governing Council will be re-elected or appointed given there is a several month period before elections where the three branches enumerated in the constitution are inactive. It also leaves vague in areas concerning religious law and individual liberties. Lastly, it does not explicitly state that the United States will actually turn over full sovereignty to Iraq, something that many have called for inside and outside of Iraq.

What the Interim Constitution should have added was a transition process during the period from US handover to the elections to be held no later than December 15. Elections could have been held sooner than December which would perhaps allow for an easier transition to democracy. The Iraqi Governing Council will get all of the authority that is currently held by the Coalition Provisional Authority and this could open up a source of tension within Iraq between various competing groups. The powers of the Council who will oversee the transition to the democracy laid out in the interim constitution are not explicitly enumerated and it is possible that these 25 people handpicked by the United States will be ruling the country for period of several months while elections are prepared. This does not correctly represent the Iraqi people, as it can be assumed that they will probably have to lay the foundation to many of Iraq’s new democratic institutions and they were not elected by an Iraqi electorate.

Iraq’s interim constitution does a good job in protecting minority rights. However it gives some minorities too many rights at the expense of the majority. The Kurds did give up many concessions when they signed the interim constitution such as control over Kirkuk and control over revenues from oil extracted from their region . However, their veto power of whatever an elected assembly comes up with in terms of a permanent constitution represents a major source of tension. Also, an interesting note is that the interim constitution does not give representation to Iraqis who self-identify as merely Iraqis first and whatever ethnic group they belong to second. The interim constitution should have protected minority interests without dividing the nation into seemingly monolithic political blocs divided along ethnic and religious lines. These blocs, of which the Shia would likely be the majority, could divide the nation given the fundamental differences and interests that each group has for its own self-preservation.

The Interim Constitution is a good but vague start, but has many flaws and holes that could unravel Iraq’s nascent federalism. The US turnover is only a few months away and recent violence sparked by a Shia rebellion could plunge Iraq into a civil war following the turnover.

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