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IRAQ: Drafting the Constitution

Authors: Lionel Beehner, and Sharon Otterman
August 23, 2005
This publication is now archived.

What is the status of Iraq’s constitution?

After failing to meet the original August 15 deadline, Iraqi leaders pushed the due date to August 22. The 71-member constitutional committee submitted an incomplete draft of the document to the National Assembly on August 22, but asked for three more days to resolve remaining differences among Iraq’s ethnic communities. Secular Shiites and Sunni Arabs criticized the draft’s wording on federalism and the role of Islamic law. Experts say Sunni support is crucial for the constitution to pass a nationwide referendum October 15. U.S. officials, who hope the constitution will help quell the Sunni insurgency, praised the drafters for not further delaying the constitution process.

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What issues appear to have been resolved?

The draft constitution:

  • Enshrines basic rights—political, linguistic, and religious—for Iraq’s minority groups, including its Assyrian, Turkmen, and Chaldean communities.
  • Guarantees 25 percent of the Council of Deputies seats are given to women, in keeping with the Transitional Administrative Law (TAL)—the interim constitution passed by Iraqis with U.S. oversight.
  • Outlaws the Baath Party, all terrorist organizations, and any groups that espouse sectarian struggle.
  • Mandates that “oil and gas are the property of all the Iraqi people” and that revenues be “distributed in a way that suits population distribution around the country.” This last line “could be the kicker,” says Nathan Brown, senior associate at the Carnegie Endowment for International Peace, since it symbolizes “a big concession by Kurds,” who want control of oil-rich Kirkuk, and “gives at least some formula allowing the distribution of revenue based on national law rather than [distributing revenues solely] to the region where the oil was found.”
  • Calls for two official languages: Arabic and Kurdish.
Which issues have caused the most controversy?
  • Federalism. There is general agreement that Iraq should be divided into federal governorates, or regions, but delegates must decide how to do so. One question is how to allot power between the federal government and the regions; another is deciding the boundaries of each region. The knottiest problem concerns Iraqi Kurdistan, the largely Kurdish region in the north of Iraq that has been virtually autonomous since it came under the protection of a U.S.- and British-enforced no-fly zone in 1991. Kurds want a great deal of autonomy in a federal Iraq in exchange for giving up their long-held dream of independence. They want regional control over their 100,000-strong militia, known as the peshmerga, and also hope to put procedures in place that would likely lead to an expansion of the borders of Iraqi Kurdistan to include the nearby oil-rich city of Kirkuk. The city's Arab and Turkmen communities oppose such a move. Many Kurds were forcibly removed from Kirkuk by Saddam Hussein in a campaign to bring more Arabs into the region.
  • Revenue-sharing. Another main debate facing Iraqis is how to share billions of dollars in annual oil revenues among the country's many ethnic communities and geographic regions. The TAL recommends that oil revenues be distributed to regions based on population, with special consideration given to parts of Iraq--such as the Kurdish north and the Shiite-dominated south--neglected by the former regime. Revenue-sharing is a particularly sensitive issue for Sunnis, who received a large share of resources under Saddam Hussein even though there is little oil wealth generated in the central regions where most Sunnis live.
  • Division of powers. There is broad consensus that Iraq's government will have three independent branches--judiciary, legislative, and executive--with checks and balances among them. The details of this arrangement, however, have to be worked out. Drafters will have to decide if the form of government should be a presidential or a parliamentary democracy and whether leaders should be directly elected or appointed by an elected assembly. The current transitional government is a parliamentary system with a weak presidency and an indirectly elected president and prime minister. 
  • Role of Islam. There is wide agreement among Iraqis that Islam should be the nation's official religion, as it is in most of the region's constitutions, Brown says. But the role given to sharia, or Islamic law, in the constitution is a matter of considerable contention. Many religious Shiites are demanding sharia be acknowledged as the sole source of Iraq's law, and they may want the constitution to state that sharia will govern marriage, divorce, inheritance, and other so-called personal-status issues for the nation's Muslims, who make up more than 90 percent of the population. Such a decree would likely impact women's rights. Kurds and other secularists want sharia to be acknowledged as one of a number of sources of Iraq's law. The TAL compromised between these two positions: It states Islam is the official religion and "a source of legislation," but also says the government may not enact a law "that contradicts those fixed principles of Islam that are the subject of consensus." Some Shiite leaders have also proposed changing the country's official name to the "Islamic Republic of Iraq," a move opposed by Iraq's secularists.
  • Women's rights. Shiite religious leaders want to reverse a 1959 law that settles domestic concerns--issues of marriage, divorce, and inheritance--in civil courts, and move such matters to religious courts. Under an earlier draft of the constitution, women would be stripped of their rights to inherit property on an equal basis as men, and their legal protections in case of divorce would be weakened. Some women also fear that a provision in the TAL requiring that women hold at least 25 percent of the National Assembly seats may be scrapped. Some women's groups want to boost the quota to 40 percent or greater.
  • Official language. There is disagreement among the constitution's drafters over whether Iraq should have more than one official language. Arabic will definitely be an official language--nearly everyone in Iraq, including non-Arab minorities, speaks at least some Arabic--but Kurds want the Kurdish language to share equal status, as was the case under the TAL.
  • Role of militia groups. The Kurds want to retain the peshmerga, which enforces law and order in northern Iraq. Some of Iraq's leading Shiite political parties also have militias: For example, the Supreme Council for Islamic Revolution in Iraq (SCIRI) controls the Badr Organization, an Iranian-trained armed group that operates mainly in Shiite-controlled southern Iraq. (Some of its offshoots, such as a fierce commando unit known as the Wolf Brigade, conduct counterterrorism operations in Baghdad.) While the U.S. government has said it would like to see the various private militias disbanded, Iraqi leaders appear to support the continued existence of some of the groups. "I think they probably will agree to let them continue to operate, especially in this highly insecure atmosphere," says Kenneth Katzman, senior Middle East analyst for the Congressional Research Service.
Which issues remain the most contentious?

Religion and federalism, experts say. The draft of the constitution, against the wishes of Iraq's Kurdish and secular Shiites, requires that Islam be a main source for legislation and that "no law may contradict Islamic standards." In essence, this enshrines "sharia, or Islamic canon law, quite explicitly in the constitution and would allow religious jurists to question secular legislation," writes Juan Cole, a University of Michigan history professor, in his blog on Middle East politics. The constitution also decrees that Iraq "is part of the Islamic world, and the Arabs are part of the Arab nation," but does not appear to mention whether Islamic clerics are allowed to serve on Iraq's constitutional court.

On the issue of federalism, the constitution allows for a large degree of regional autonomy, something secular Shiites, led by former Prime Minister Ayad Allawi, and Sunnis have long opposed. They fear such a move would further divide Iraq along sectarian and ethnic lines and deprive Sunnis of their share of the oil revenue. According to the document, a region--which must consist of "one or more provinces"--can draft its own constitution, issue laws, elect a president, and maintain regional security forces, provided that none of the above contradicts Iraq's constitution and central laws. This clause stems from demands by Kurds and southern Shiites, whose respective regions are oil-rich and heavily populated, for increased local autonomy.

Are these issues likely to be addressed in the constitution’s first drafts?

No. Most experts say the constitution writers, in the interest of achieving consensus, will probably put off some of the most divisive subjects until after the August 22 deadline. "Under these tense circumstances, deferral is understandably the order of the day," wrote Noah Feldman, a professor at New York University School of Law, in a July 31 New York Times Magazine article. "The less the constitution says about controversial issues, the greater the likelihood that it will be ratified." Yet it's unclear, Brown says, what the amendment procedure would be for addressing these issues at a later date. Further, he's skeptical these issues can be resolved in a matter of days. "We're talking about issues that have divided Iraq for generations and have gotten worse in past years," he says.

What happens once the constitution is drafted?

It will then be submitted to the 275-member National Assembly for review and distributed for the Iraqi people to consider. An October 15 national referendum will follow the period of public discussion. If a majority of voters nationwide approve the draft--and if two-thirds of the voters in three or more of Iraq’s eighteen current governorates do not reject it--the document will be ratified. Elections for a permanent government will be held by December 15, and the new government will assume office no later than December 31, the TAL states. Some experts caution that if Sunni concerns are not addressed in the current draft of the constitution, Sunni voters may reject the document October 15.

What happens if the constitution is not drafted by the deadline?

According to the TAL, the National Assembly should be dissolved, and elections for a second transitional National Assembly will be held by December 15. A new government will take office and the drafting process will start again. A second draft must be completed by August 15, 2006, and a second referendum held by October 15, 2006. A six-month extension can be requested, pushing the final deadline for the second draft to February 15, 2007. The TAL does not indicate what should happen if the constitution fails a referendum a second time.

Why is the referendum approval process so complex?

It is the result of a compromise in 2004 between Iraqi Kurds and the Iraqi Arab majority. Kurds comprise a two-thirds majority in the three northern Iraqi governorates of Iraqi Kurdistan--Dohuk, Erbil, and Sulaymaniya--and wanted to ensure no constitution could be enacted without the approval of these areas. Arab Sunnis and Shiites could also defeat the constitution by voting it down by a two-thirds majority in their geographic strongholds. (Kurds, who comprise 15 percent to 20 percent of Iraq’s population, are concentrated in the North; Sunnis, who also make up 15 percent to 20 percent of the population, are in the center of the country; and Shiites, some 60 percent of the population, reside largely in the south.) The possibility of a regional defeat explains why the demands of all three groups must be taken into account during the constitution-writing process.

Which other events have impeded the process?

Besides missing the original U.S.-imposed August 15 deadline, there have been a series of setbacks. Sunni Arabs staged a brief boycott of the constitution-writing process to protest the July 19 assassinations of two Sunni members of the constitutional committee. The Sunnis returned to the process July 26 after a series of demands were met, including an independent investigation of the murders and improved security. But later they claimed they were shut out of the negotiations leading up the August 22 deadline. An earlier setback for the constitution occurred July 25 when a draft of the document was leaked to the press. It detailed Shiite plans to enshrine Islam as the supreme source of law and curb the rights of women. Subsequent protests by women, in Baghdad and abroad, pushed the drafters to change some of the constitution’s more contentious wording.

Is the constitution likely to quell the violence in Iraq?

Probably not, experts say. "Under any circumstance, the core element of insurgency will continue," says Jeffrey White, Berrie Defense Fellow at the Washington Institute for Near East Policy. “[The constitution] may weaken their hold on Sunnis, but the insurgency is embedded in the Sunni community, and entrenched elements will continue to fight.” A lot also depends on the voter turnout of Sunnis in October’s referendum on the constitution, White says. "If large numbers of Sunnis come out and vote in large numbers, and vote yes, then that’s a signal that there’re lots of Sunnis ready to join the political transformation process legitimately." 

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