IRAQ: The Interim Constitution

February 2, 2005

Backgrounder
Current political and economic issues succinctly explained.

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What are the contents of Iraq’s interim constitution?

The 62-article document signed March 8 is designed to provide a legal framework for the country’s transitional government until general elections can be held and a permanent constitution written. The document stipulates that an election for a transitional national assembly must take place by January 31, 2005. It also contains an American-style bill of rights and establishes Islam as Iraq’s official religion. However, it defers many of the most difficult questions facing the new nation, such as who will run the government after June 30, 2004, when the U.S.-led Coalition Provisional Authority (CPA) returns sovereignty to Iraq. "It’s more a set of guidelines than an enforceable legal document," says Joseph Siegle, the Douglas Dillon fellow at the Council on Foreign Relations.

How did the constitution come about?

The 25-member Iraqi Governing Council (IGC), which was appointed by U.S. officials and is representative of Iraq’s main ethnic and religious groups, spent weeks wrangling over the document’s contents. An initial agreement was reached March 1, but final approval was delayed by a series of terror bombings that killed some 180 Shiites attending religious ceremonies in Baghdad and Karbala and by last-minute objections to specific aspects of the text by five Shiite IGC members. Their objections reflected concerns raised by Iraq’s most powerful Shiite cleric, Ayatollah Ali al-Sistani. On March 7, he signaled that he would not block the constitution, and the signing ceremony took place the next day. The CPA, led by L. Paul Bremer III, provided guidance and also had veto authority. The interim constitution, also called the Transitional Administrative Law, was not submitted to the Iraqi public for comment.

What were the last-minute Shiite objections?

The first dealt with the form of Iraq’s future presidency. The interim constitution establishes a Presidency Council, consisting of a president and two deputies; the Shiite objectors said they wanted a rotating presidency among five leaders: three Shiites, a Kurd, and a Sunni. Shiites make up about 60 percent of Iraq’s population; Sunnis, 15-20 percent; and Kurds, 20 percent.

The second objection was to a provision that could give the Kurds an effective veto over the text of a permanent constitution. According to some IGC members, Ayatollah Sistani was concerned that the provisions awarded too much authority to Kurds and other minorities and prejudged the conclusions of a future constitutional convention. "Any law prepared for the transitional period will not have legitimacy until it is approved by the elected national assembly," he said in a written statement. Iraqi Kurds and Sunnis are wary of any political process that would give Shiites the strongest say in Iraq’s new government.

Are changes to this constitution likely?

Yes, many experts say. Sistani, some IGC members, and other Iraqis do not see the constitution as the last word on Iraqi governance--and they feel discussion was rushed to comply with a coalition-approved February 28 deadline. "Sistani is putting down a marker, and the marker is, ’Don’t think that just because this is signed, this is final,’" says Noah Feldman, a law professor at New York University and a former constitutional law adviser to the occupation government in Baghdad. A similar sentiment was expressed by Hamid al-Bayati, a senior leader with the Supreme Council for the Islamic Revolution in Iraq, one of the groups that had initially refused to sign the document. "We’ve decided to sign the constitution and resolve the problems in it later," he said. One future addition to the constitution is definite: an addendum will be added in the next few months to determine who will take charge of Iraq’s government after June 30.

What does the document say about Islam?

It enshrines Islam as the official religion of Iraq but also guarantees the freedom to practice other faiths. In a compromise between Shiite religious conservatives and more secular council members, Islamic law, or sharia, is defined as "a source" of legislation but not the primary source. Religious conservatives agreed to this clause after adding an additional sentence that states no legislation can infringe upon the "universally agreed upon tenets of Islam," the principles of democracy, or the civil liberties guaranteed in the constitution. "We were happy with the wording. We got what we wanted, which is that there should be no laws which are against Islam," Entifadh Qanbar told a press conference March 1. Qanbar is a senior aide to council member Ahmad Chalabi, a liberal Shiite who has recently allied himself with more conservative Shiites.

How does it resolve the Kurdish issue?

Kurds have been pressing for an autonomous federal state in northern Iraq. This would be based on the special status the region has enjoyed since the early 1990s, when, under the protection of an international no-fly zone, Kurds established the autonomous region of Iraqi Kurdistan. This issue was too contentious to resolve in the negotiations over the interim constitution and so was deferred until consideration of a permanent constitution. "Some points simply could not be done … but [our attitude] is what you can’t have now, you will have later. That’s why we didn’t insist that it be now," council member Mahmoud Othman— a Sunni Kurd— told the Associated Press.

What will happen to the Kurdish region in the short term?

Essentially, the status quo will be maintained, Feldman says. The Kurdish region will continue to govern itself, and the Kurdish judiciary and legislature will continue to have relative independence. In addition, the 50,000-strong Kurdish militia, whose fighters are known as pesh merga, will not be immediately disbanded, experts say. The interim constitution prohibits "armed forces and militias not under the command structure of the Iraqi Transitional Government"; however, it also states that the Kurdistan Regional Government will "retain regional control over police forces and internal security." The boundaries of the Kurdish region, including the status of the contested oil-rich region of Kirkuk, were left undetermined.

Was Kurdish made an official language?

Yes. In a dramatic change from Saddam Hussein’s time, when Kurds were harshly repressed, Kurdish was made an official language of Iraq, along with Arabic.

What does the constitution say about federalism more generally?

The interim constitution is somewhat vague on the issue, "but the default position is that the regions won’t have much power," Feldman says. The federal government is given exclusive control over foreign policy, national security matters, fiscal and monetary policy, and management of Iraq’s oil and other natural resources. There is some language that opens the way for Iraq’s Shiite and Sunni regions to follow the lead of the Kurds and form semi-autonomous states. Specifically, the charter says that any of Iraq’s 18 provinces may join with up to two other provinces to form a so-called federal region. However, the steps that would govern this process are not specified and, in the short term, the emphasis will be on building the central government, some experts say.

What about the role of women?

The constitution says 25 percent of the seats in the transitional national assembly should go to women, though this is a goal and not a specific quota. An additional clause says that political parties should do everything possible to achieve this target. There is also a clause that states all Iraqis are equal before the law regardless of gender.

What other civil rights are enshrined in the document?

The document contains a 14-article bill of rights that includes protections for individual rights and guarantees freedom of speech, assembly, and religion, due process, and other civil rights. Governing Council member Adnan Pachachi called the interim constitution’s bill of rights "unprecedented in this part of the world." He added: "This document not only reflects agreement on many wider aspects of Iraqi society, it is also an aspirational document which looks to the future."

Are checks and balances built into the constitution?

Yes. The document envisions a government with an independent judiciary, a national legislature, and a split executive. The executive branch’s three-person Presidency Council would be appointed by the national assembly, and decisions would have to be made unanimously among them. This structure is meant to accommodate the views of Shiites, Sunnis, and Kurds. In addition, the Presidency Council will appoint a prime minister and a Cabinet to administer most government functions. The presidency will have a veto over decisions of the legislature, but the prime minister will be at the top of the chain of command of the Iraqi armed forces.

What are the next steps for Iraq?

After the interim constitution is made public, the coalition will move on to its next major challenge: deciding who will run Iraq’s government between June 30, 2004, and January 31, 2005, when an election for a national assembly must be held. The coalition’s last transition plan involved a complex series of caucuses to choose a transitional assembly. It was scuttled because of opposition from Ayatollah Sistani, who has demanded direct elections for a transitional government. His objections spurred the United States to seek help from the United Nations in formulating a new handover plan.

What will be done to resolve this issue?

The U.N. special representative to Iraq, Lakhdar Brahimi, a former Algerian foreign minister, visited Iraq in early February to consult with Iraqis about how the transition should take place. He concluded that elections could be held by early 2005 if preparations began immediately; this date has now been enshrined in the Transitional Law as an election deadline. Brahimi is due back in Iraq for further consultations. Meanwhile, the United States is reportedly working on a new plan that would transfer sovereignty on June 30 to an expanded version of the IGC. Additional council members may be nominated by local Iraqi leaders, and the council’s powers may be strictly limited, in accordance with Sistani’s wishes. Whatever form the temporary, unelected government takes, its main task should be to "prepare the country for free, honest elections," Sistani said in a statement issued February 26.

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