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| Authors: | Lionel Beehner Sharon Otterman |
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August 23, 2005
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.
The draft constitution:
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.
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.
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.
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.
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.
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.
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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