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IRAQ: The Changing Plan

Author: Sharon Otterman
December 1, 2003
This publication is now archived.

Will Iraq's transitional government be elected?

We don't know. The issue is at the center of a dispute that has emerged over the Bush administration's new plan to return sovereignty to Iraq by July 2004. That plan calls for the transitional government to be appointed through a complex system of regional caucuses. But a powerful Shiite cleric, the Grand Ayatollah Ali al-Sistani, wants direct elections, and his view has gained some support among members of the U.S.-appointed Iraqi Governing Council. This disagreement and others have clouded the outlook for the Bush plan.

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Didn't the Iraqi Governing Council agree to the new plan?

Yes. L. Paul Bremer III, the U.S. civilian administrator in Iraq, and Jalal Talabani, the then-president of the Iraqi Governing Council, signed the plan on November 15. But objections began to surface shortly afterward. Shiite leader Abdul Aziz al-Hakim, Talabani's successor as president (the post rotates monthly among a group of nine council members), complained that the plan was approved without adequate deliberation. Several council members called for an amendment that would allow the council to remain in place after July as a kind of second legislative body, or senate. Sistani didn't get an Arabic copy of the document until after it was signed, according to press reports.

Why is Sistani playing a critical role?

The 73-year-old Iranian-born cleric is widely considered the most powerful Shiite leader in Iraq, which is 60 percent Shiite. After decades of Islamic study, Sistani has attained the exalted rank of majra al-taqlid, or source of emulation, and his authority among his followers is unquestioned. It is not known what percentage of Iraq's Shiites revere Sistani, but Iraq experts say that thousands— if not millions— of his followers would turn against the U.S.-led occupation at his word. Sistani has thus far urged Iraqis to endure the occupation patiently, which has helped maintain the relative stability southern Iraq enjoys, some experts say. Both the governing council and U.S. leaders are loath to oppose him.

Why does Sistani oppose the caucus system?

According to a translation of a written statement issued by the reclusive cleric, the November 15 plan "does not guarantee the formation of an assembly that truly represents the Iraqi people" because it does not provide for elections. Sistani's main concern, some experts say, is insuring a role for Islam in the new Iraqi government. In his statement, Sistani wrote: "In this way [through elections], the parliament would spring from the will of the Iraqis and would represent them in a just manner and would prevent any diminution of Islamic law." Many Shiites also favor direct elections because, as the majority population, they stand to gain the most from them.

Does Sistani want Iraq to be an Islamic state?

Yes, say experts--but to what degree is not clear. Sistani has said he wants Islam to be officially recognized as the faith of the majority of Iraqis and no law in the new state may contradict Islam, according to his advisers. On the other hand, he has not called for a formal role for Muslim clerics in a new Iraqi government, as is the case in neighboring Iran. Noah Feldman, a law professor at New York University who has advised the Iraqis on the constitution-writing process, says he believes that Shiite leaders will agree to a democratic constitution that makes Islam the official religion of Iraq but guarantees freedom of religion and other civil liberties.

What's the U.S. reaction to the new objections?

The Bush administration has said that it will not change the plan, and Bremer has been lobbying members of the governing council to stick to its terms. "The agreement that we and the governing council reached remains in place," U.S. State Department Spokesman Richard Boucher said December 1. Unnamed U.S. officials, however, were quoted in press reports saying that Bremer would consider minor modifications to the plan. And in any case, many of the plan's details are to be worked out in implementation.

How is the non-elective political process supposed to unfold?

The five stages of the "Agreement on Political Process" signed November 15 are:

  • The governing council, in close consultation with coalition authorities, will draft a "fundamental law" that will enshrine basic rights for all Iraqis and set out the transitional administration's structure.
  • The governing council will sign a formal security agreement that grants coalition forces "wide latitude to provide for the safety and security of the Iraqi people."
  • Iraqis, supervised by the Coalition Provisional Authority(CPA), will select a Transitional National Assembly through a complex system of regional caucuses.
  • The transitional assembly will appoint a government, likely headed by an interim president. Sovereignty will be officially transferred from the coalition to the transitional government. The CPA will be dissolved.
  • The transitional government will hold a popular election for delegates to a constitutional convention. That convention will draft a constitution. Elections for officials and legislators will be held according to the terms of the new constitution.
What is the schedule according to the November 15 plan?
  • December 15, 2003: Timetable presented to the United Nations Security Council as dictated by Resolution 1511.
  • February 28, 2004: Fundamental law approved.
  • March 31, 2004: Bilateral security arrangement approved.
  • May 31, 2004: Transitional National Assembly elected.
  • June 30, 2004: Transitional government appointed; CPA dissolved.
  • March 15, 2005: Elections for a constitutional convention held.
  • December 31, 2005: Elections for a permanent Iraqi government held.
Has the timetable shifted?

Not yet, though given the current disagreements, some changes are possible. Debates over the fundamental law could be lengthy, and Sistani has also indicated that an elected assembly must ratify that law. If elections are to be held for an interim government, delays may be required to establish acceptable voter rolls. Less formal local elections are also a possibility.

Even if the fundamental law and national assembly are appointed on time, some experts say that the schedule is too tight in 2005, when Iraqis must hold elections for a constitutional convention, ratify the constitution, and hold a general election--all within nine months. "It's not a question of whether it [the timetable] is right or wrong. It's not feasible," says Marina Ottaway, a democracy expert at the Carnegie Endowment for International Peace.

How much influence will coalition officials have in writing the fundamental law?

According to the plan, the coalition and the governing council have to approve the law, meaning both will have veto power over its contents. Speaking on ABC's "This Week" on November 16, Bremer said the "interim constitution"--the term he used for the fundamental law--will guarantee equality for all citizens, an independent judiciary, and a federal government. "They [these ideas] will be in the interim constitution because we're going to be involved in drafting it," he said. On the other hand, "everybody wants the Iraqis to take the lead in drafting the document," said David Phillips, senior fellow and deputy director of the Center for Preventive Action at the Council on Foreign Relations.

What will the fundamental law cover?

The exact contents of the document will be determined in negotiations. However, the November 15 agreement set forth a number of elements that will be a part of the law, including:

  • A bill of rights guaranteeing Iraqis freedom of speech and religion; equal rights for all regardless of gender, sect, or ethnicity; and due process in a court of law.
  • A federal structure for Iraq that specifies how power will be divided between the central government and local governorates or states.
  • Independence of the judiciary and a mechanism for judicial review.
  • Civilian control of the armed and security forces.
  • A timetable for drafting a constitution and holding general elections.
  • A statement that says the fundamental law cannot be changed.
Will the negotiations over this document be difficult?

Some constitutional and democracy experts say yes, largely because the fundamental law may deal with some of Iraq's most controversial political issues, such as the role of Islam or how to divide the country into federal states.

What do these experts suggest?

That the fundamental law avoid so-called final-status issues, which they say should be debated at length by Iraqis in a formal constitutional convention. "Our suggestion is that the interim constitution be a very basic document, simply a set of rules about how to get through the initial steps of the transition," says Ottaway, who recently wrote a policy paper on Iraqi governance with fellow Carnegie scholar Thomas Carothers. "It seems that they [coalition authorities] have embraced the idea of the two-stage process [an appointed interim government preceding an elected permanent government], but they are still trying to sneak the issues of a long-term constitution into the interim constitution." Feldman predicts that "there are going to be real disagreements" over aspects of the fundamental law. "This is an attempt by the CPA to have as much input as possible over the constitution-writing process," he says.

Are there precedents for establishing a fundamental law before a constitution?

Yes. After World War II, West Germany opted out of a permanent constitution to avoid the appearance of condoning the division of the country into eastern and western zones. Ottaway says that instead it passed a basic, or fundamental, law. After apartheid ended, South Africa adopted an interim constitution. In that case, the permanent constitution that followed very much resembled the interim constitution, Feldman says. The same may be true in Iraq's case. "The fundamental law is going to be written very fast. There'll be a lot of sloppiness, a lot of mistakes. Some of this will be fixed the second go-around, but history suggests that often it isn't. Interim constitutions tend to look a lot like the final text," he says.

How will delegates of the Transitional National Assembly be selected?

The November 15 agreement says that the delegates will be appointed through a system of provincial caucuses and that only qualified "notables" will be eligible for appointment. In this way, the coalition, the governing council, and local elites in Iraq— including tribal leaders, trade unionists, religious leaders, academics, and business leaders— will determine the delegates and weed out those opposed to the constitutional process. This part of the plan has now been called into question.

What are the qualifications for members of the assembly?

They have not been officially determined. But Ibrahim Jafari, one governing council member, told the Christian Science Monitor that members of the national assembly will have to be 30 years old, have a bachelor's degree or equivalent education, and be free of past Baath Party affiliation and/or participation in atrocities or criminal activity.

What is the first stage of the delegate selection process?

The CPA will supervise the creation of an "organizing committee" of Iraqis in each of Iraq's 18 governorates, or provinces. Each committee will include:

  • five individuals appointed by the governing council;
  • five individuals appointed by a "provincial council" set up in each province consisting of representatives from local councils;
  • five individuals, one each appointed by the local councils of the five largest cities within the governorate. U.S. military officials have already set up local Iraqi councils to help govern most cities and towns in Iraq.
What is the second stage?

Each committee will set up a "Governorate Selection Caucus" of notables from around the governorate. These notables can be nominated by political parties, local councils, professional and civic organizations, university faculties, or religious and tribal groups. Each caucus member must be approved by 11 of 15 members of the organizing committee. The exact size of each caucus has not been determined.

What is the third stage?

Each Governorate Selection Caucus will elect representatives from among its own membership to a Transitional National Assembly in Baghdad. Each province will be represented based on its percentage of Iraq's population, as determined by ration cards distributed by Saddam's regime in the 1990s. While the size of the assembly has not been determined, some governing council members estimate there will be about 240 delegates, or one to represent each 100,000 Iraqis.

Will the assembly be an expansion of the governing council?

No, and the governing council will be dissolved once the assembly is seated. One reason the selection process is so complex, some experts say, is to distance it from the governing council, which some Iraqis say lacks legitimacy and is too close to the coalition. On the other hand, individual members of the governing council will be eligible to serve in the assembly. Some experts expect that most, if not all, of the current governing council members will make it through the selection process and be appointed to the assembly.

What will the transitional assembly do?

It will elect an executive branch from among its members, says Charles Heatly, a CPA senior press adviser in Baghdad. It will also appoint ministers. There may be a president or a prime minister; top leadership posts haven't yet been determined. As currently envisaged, the assembly will stay on as a legislature throughout the transitional administration period.

What is the process for writing the constitution?

Nine months after the government is put in place, there will be a general election for a constitutional convention. This procedure is in accordance with an influential ruling, or fatwa, issued by Sistani in June. The convention will draft a constitution that will be circulated for public comment and debate. A final draft will then be presented to the public, and a popular referendum held to ratify it. This process must be completed in approximately six months.

Then a permanent government will be elected?

Yes. According to the November 15 agreement, general elections for a new Iraqi government will be held by December 31, 2005, and the fundamental law will expire.

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