Clark Lombardi, an assistant professor of law at the University of Washington School of Law and expert on Islamic and constitutional law, says the role of religion in a future Iraq and federalism remain the thorniest issues facing the drafters of Iraq’s constitution.
“Federalism is one of the toughest issues in any country, including our own,” Lombardi says. “In Iraq, a choice will have to be made that has enormous ramifications, not only in the short term, but really in the medium and long term for Iraqis. And to some extent, the possibility of holding the country together depends on how carefully these provisions are drafted.”
Lombardi says he does not expect the insurgency to slacken in coming months, as Iraqis go to the polls to ratify the constitution and elect a new assembly. The author of a forthcoming book on Egypt, “State Law as Islamic Law in Modern Egypt: The Incorporation of Sharia into Egyptian Constitutional Law,”Lombardi was interviewed by Bernard Gwertzman, consulting editor for cfr.org, on August 17, 2005.
Members of the constitutional draft committee are still at work. They’ve
extended their work and have a new deadline of late Monday. What is your general feeling about the work so far on this constitution?
Well, clearly it’s had a lot of bumps along the way. The Sunni members have absented themselves from discussions at periodic times. But constitution drafting is always something of an ugly process. This one was done under extraordinary time pressure and extraordinary political pressure and with a lot of assistance—or interference, depending on how you view it—from the international community. I think one would expect this process would be a little more difficult than many, and it’s probably gone as well as could be expected under the circumstances.
They started late, I guess, on drafting this. They didn’t even get the committee together until the government was formed, right?
It’s been an extraordinarily fast process, and they’ve been working under a very rigid timeline set by the Transitional Administrative Law (TAL). So, they’ve really had to squeeze their activities into a box that was set before they started, as opposed to one that they decided they were comfortable with.
Now the draft administrative law did allow them to have a six-month delay, if the assembly approved. Your colleague, Nathan Brown, thought that would have been a wise move, but he said that politically it was impossible given the pressure from the United States to get it done quickly. Do you agree? Should they have taken more time, or was that not really politically possible?
Maybe they should have taken more time and maybe it wasn’t really politically possible at the same time. I think Nathan was probably correct on both fronts. Obviously, they should have taken some more time because they have taken some more time and they’ve done it in a way that’s not permitted by the law, which is a very awkward situation that everybody has decided to ignore for the time being.
You mean the one-week delay?
The one-week delay is not anticipated in the TAL. It said that by August 15 the draft has to be finished and then it will be published. Now, there are several ways you could justify the delay. You could say it was finished except for a few provisions, which need to be looked at, and that seems to be what they’re saying. But it’s a bit of an awkward argument to make.
Let’s go to the main issues we know are out there.
Over the entire period of drafting or at least for the last couple of weeks, there have been comments from drafters that consistently talk about eighteen open issues. Some of these are clearly more significant than others. Some of them are largely symbolic and some of them have real consequences, so the eighteen points are not all created equal.
Has the official name of the country been worked out?
To the best of my knowledge that has been worked out. These things are of fairly significant symbolic importance, but on the other hand, if somebody wants to make a deal, if somebody understands what they want their state to look like, this usually is not the sort of issue that’s going to prevent agreement. But some of these other issues are really quite deep and broad, and they implicate a lot of areas of the constitution. The constitution will have to be drafted around agreement that’s reached on some of these issues.
OK. So what are the key issues?
Religion is one. Some people say what’s really important is the precise formula by which sharia will be characterized as a source of law. It’s pretty clear the constitution will [make] Islamic sharia a source of law or the chief source of law. Frankly, I don’t think the language that they choose is particularly important, but there are areas in which the role of Islam will be very important to the members of the Iraqi community. For instance, in the area of family law, there has been a dispute about whether the courts should apply a body of national law that has been determined to be consistent with the broad principles of Islamic sharia, or whether the constitution should require that the courts apply to every Iraqi individual the traditional Islamic family law from the sect or from the school of law to which they normally belong. It could be quite a significant difference.
So in other words, a secular Shiite could find himself living under very strict religious laws?
That is true, although it probably would work the other way; that what you’d have are Shiites who wish to be under a strict Shiite law, and instead what’s being applied is sort of a compromised body of Islamic law that applies to all Muslims, whether they’re Shiite or Sunni, throughout the country. That would make a conservative person unhappy as much as the situation you described.
The real debate is simply this: Some people want the parliament to establish a unified code of family law that will be drafted with an eye to Islamic principles broadly speaking, but will apply to everybody, no matter what sect. And other people would like to have the courts apply to them, their children, and their families the traditional body of Islamic law that normally governs people from their sect or from their school of law. Those [laws] would result in very different situations on the ground for people.
And we don’t know how they’re going to cut a compromise on this?
We don’t know. When people talk about Islam being an issue, it’s not only the larger question of whether Islam will be a source or the source of legislation going forward, but it’s also issues like [family law] that actually have to be put in the constitution. The constitution will probably have some specific language about what type of law will apply in the area of personal-status or family law.
What about federalism?
Federalism is one of the toughest issues in any country, including our own. In Iraq, a choice will have to be made that has enormous ramifications, not only in the short term, but really in the medium and long term for Iraqis. And to some extent, the possibility of holding the country together depends on how carefully these provisions are drafted.
What are the issues?
There are a number of issues. It’s been said by some, that some communities, particularly the Kurds, would like to have a right of secession enshrined in the constitution. U.S. Ambassador Zalmay Khalilzad has said that’s actually not an issue. I have no idea how to read the tea leaves in something like that. But that would be an enormous issue, surely, as to whether areas or regions of the country have the right to secede if they’re unhappy with the development of things going forward. But the issues of federalism are much more subtle, and they stretch widely. They include: How do you structure the national assembly? What areas [the federal government] is allowed to legislate in and what areas the regional legislatures are allowed to legislate in is an enormously tricky subject; the relationship between regional courts and national courts—who has supremacy? How regional judges are appointed; how can they be removed? All of these issues are ones that will have to be resolved once basic agreement is reached on the strength of a federal state the Iraqis want to create. One of the reasons it’s taking so long is that even if you reach basic agreement on the larger principle, the actual drafting of these provisions is enormously tricky.
And, of course, oil gets into this, right?
There are very serious disputes about how to divide oil revenues. Iraq is, of course, a major oil producer. Typically, the natural resources belong to the state. At some level the Iraqi state owns the oil and will have the right to the revenues from it. The constitution will probably have some provision that explains how to divide the revenues from this oil. And certain communities are asking for a constitutional guarantee that they will get “X” percent.
That’s primarily the Kurds and the Shiites in the south?
Well, between those two, that accounts for the majority of Iraqis. I think all Iraqis are deeply concerned about this; the Sunnis, who are sitting in the area of the country that does not have much oil, are enormously concerned that essentially the constitution—especially at the very beginning—will provide to other communities and other regions the vast majority of Iraq’s wealth, and they’ll be sort of doomed to be impoverished from the start.
Is the creation of a “Kurdistan” part of the issue?
The issue of federalism and Kurdistan are largely the same issue. There are questions about what the national language of the country will be and there are certain symbolic issues that are of concern to the Kurds. Many people think of them as secular or moderate Muslims and that Islamism is not really as important in Kurdistan as in the Shiite or the Sunni regions of the country. So the Kurds have their own unique concerns in really almost every area of the constitution that is being debated.
But their biggest concern, of course, is federalism. The Kurds would like a national state that leaves enormous power to the regions to govern themselves and have access to the revenues from the oil that’s found in their lands and potentially even to secede.
The issue of Kirkuk is part of the same question?
Kirkuk is an enormously tricky issue. It’s very much one of the issues that the Kurds are deeply concerned with because they consider Kirkuk to be a Kurdish city. What makes Kirkuk particularly difficult is that it actually has communities—most of the discussions in Iraq are focusing entirely on the Kurdish, Sunni, and Shiite communities—but Kirkuk actually has a large Turkmen population; there are Chaldeans [Christians] in the area and these communities have friends in neighboring countries. And so the question of Kirkuk is one that’s important not only to the Iraqis but also to Iraq’s neighbors.
If they get a constitution approved by the assembly in the next week or so, is that going to have any impact on the insurgency?
That’s really hard to say. It depends, in part, on exactly how robust the agreement they reach is. If this is merely something they present under enormous pressure but which does not really have the impassioned support of all the communities, then you’re still going to have tremendous divisions in the country. Even if there were strong support and all the factions were involved in the drafting process, we still have to move toward a referendum in October. And the insurgency will clearly see that as its next best chance to disrupt the formation of an Iraqi state. I would think the insurgency would go forward at full steam, certainly through the referendum that’s scheduled for October.
Then, even after that, if the new constitution is not only presented and approved, there still has to be a set of elections for a new assembly in December; obviously that’s a time in which there could be considerable mischief. That’s quite likely because one thing that’s clear is this constitution punts on a lot of hard issues. We don’t know exactly what it’s going to say, but we’re pretty sure that it’s going to take some hard issues and leave them to be resolved by some legislation in the future.
[The constitution] will simply say that there are certain issues of great importance that will have to be resolved by law in the parliament. And so who gets elected to the parliament in December—assuming the best possible scenario going forward—will have the most impact in Iraq in the future. So even those elections will be of grave interest to the entire Iraqi people and really be another source of strife upon which insurgents will focus. So I really see that there’ll be violence in Iraq, unfortunately, for a considerable period of time.