Brown: Iraqi Leaders in Too Much of a Rush to Finish Draft Constitution

Nathan Brown, a specialist on Arab constitutions who has closely followed Iraq’s constitution-drafting process, predicts that Iraqi politicians, rushing to meet an August 15 deadline, “will have a draft ready to present to the National Assembly within the next week—unless the political situation completely collapses.”

But Brown, a senior associate at the Carnegie Endowment for International Peace on leave from George Washington University, worries that the process is hurried. “My concern is that they’re doing it in such a rushed fashion, focusing so much on meeting this deadline, that they may be undercutting and shortchanging this process,” he says. “So I might give them a good grade for intentions, but I might say to them what I sometimes say to my kids when they are doing their homework: ‘Slow down, take your time, and make sure you do it right.’”

Brown was interviewed by Bernard Gwertzman, consulting editor of cfr.org, on July 26, 2005.

When we talked in April, you were a bit gloomy about the prospects for the National Assembly meeting the August 15 deadline. What are your thoughts now?

Right now, it looks like they’re determined to make the deadline. As long as they’re determined to make it, they probably will make it. The process got off to an extremely slow start, but by the end of May they finally got a [constitution-drafting] committee together, and about a month later they finally added some Sunnis to the committee. There have been problems every step of the way, but at this point, on the basis of some leaked drafts in the Iraqi press, it seems as if the various subcommittees have done their job. My guess is that the constitutional committee will have a draft ready to present to the National Assembly within the next week—unless the political situation completely collapses.

Assuming it goes ahead, what’s your broad feeling about this draft?

An awful lot of it is going to be largely boiler-plate. The interesting parts will be in some of the details on matters like religion and basic rights and federalism and so on. We got some very good indications about the inclinations of the committee on those sorts of points and the arguments that they’re having, but we still haven’t seen their final text. The other thing to stress is that what matters is not simply the text of the constitution, but the process by which it’s written. And there are indications they are making an effort to be inclusive. But in fact, this is fundamentally a document written by Shiite religious parties making very important concessions to the Kurds on federalism and making whatever concessions are necessary to prevent the Sunnis from walking away from the table completely.

Let’s go through the main issues you mentioned. First, religion.

This is a document that will be fairly religious in coloration. The real question is, will its religious nature be simply at the symbolic level—making Islam the official religion and perhaps some other steps in a symbolic direction—or will it actually try to implement an Islamic vision of the constitution in the text itself? Some of the indications that we’re getting are that the draft might be taking on a little more of an Islamic coloration than was previously thought. For instance, there’s a provision for a constitutional court and, under the most recent leaked draft the committee’s working on, it will be possible to appoint some religious figures to that constitutional court.

The concern is whether Islamic law, or sharia, will be the deciding factor in the law of the land.

That’s the question people look to. It’s important not only to look at the vague formulation in the constitution, because it’s a forgone conclusion it will mention Islamic law. The important thing to ask is, who’s going to be implementing that? Who’s going to have the authority to speak for Islamic law? And that’s where I begin to look away from very general language of using Islamic law as a source of legislation and I begin to look at concrete political structures. That’s where, I think, the constitutional court becomes important. That’s where the parliament becomes important, because it could very easily have a religious majority. To the extent that you empower the parliament or the extent to which you put a few religious figures on the constitutional court, you may give those very general Islamic provisions some real meaning.

Do you expect that, as in Iran, there will be issues in Iraq over the application of family law and rules for how people can behave in public?

On a political level, I think Iran is simply not a model for this constitution, because what the Iranian system does is create a supreme leader who has a combination of religious and political authority. [Iran] set up a Council of Guardians that not only oversees the constitution but also Islamic law and the entire political process. You won’t see something like that [in Iraq]. However, the Shiite religious parties in Iraq that have the strongest voice in this process do have a fairly conservative social and religious agenda. What I expect the constitution to do would be to empower the parliament, because Shiites are expected to have a very strong role in that parliament. They won’t be following the Iranian political model, but they could use their expected majority in parliament to legislate in ways they consider to be Islamic.

There was a provision in the draft to allow families to decide which religion or sect should guide their daily activities.

Yes. That is a matter that’s being contested right now. Matters of personal status—religion, divorce, inheritance, and other issues that affect people’s day-to-day lives—are settled by a 1959 law, which basically takes Islamic jurisprudence and pushes it in the most progressive direction it can. It’s not a completely secular law. It is based on religious sources, but it is legislated by the state.

That has always bothered some Shiite religious political parties and perhaps some Shiite religious leaders as well, who see the issue as one of basic religious freedom: They are not allowed to practice their family life in accordance with their understanding of Islam. So they’ve been pressing, off and on, to repeal or perhaps modify the 1959 law. I didn’t expect them to do that in the constitution—I thought it was a possibility, but it looks like it’s turning into a reality. What they’re going to try to do is write this in the form of almost a religious-freedom provision that says people can choose their own family law according to their own religion or their own sect. That would allow Iraqi Shiites to go to a court that would be forced to implement not the 1959 law, but a Shiite religious law. It’s not yet decided whether [Shiite leaders will] succeed.

Why are women’s groups in Iraq unhappy about the draft?

They are worried about two things. One is personal-status law, exactly along the lines that we just talked about. The second issue for them is a gender-equality provision in the Iraqi constitution. It’s virtually certain there will be a provision mandating gender equality, but the current draft seems to suggest that equality will operate only within the bounds [prescribed] by Islamic sharia.

What does that mean?

It’s not clear what it means, because it’s not clear who’s speaking for sharia. But what women’s groups are worried about is that [the constitution] is giving with one hand and taking away with the other. Sharia does recognize differences in legal status between men and women and, therefore, to say that this constitution will operate within the bounds of sharia is to rob the [gender-equality] provision of all its meaning.

The Transitional Administrative Law (TAL), Iraq’s interim constitution, mandated that a certain percentage of the National Assembly membership be female. Will that be carried over to the constitution?

The provision in the TAL aimed for at least one-quarter. But because of the way the electoral law was written, it worked out to be more than that. Women’s groups were wishing to increase that up to 40 percent and they were also suggesting that this should not apply only to the parliament, but also to other high state offices. It looks like they’re going to be partially defeated on that issue. The quota of 25 percent may remain, but there’s talk of phasing it out after two elections. I think it doesn’t look very likely that the percentage will be increased or extended to other state offices.

What about other basic laws, a bill of rights, freedom of the press, and issues like that?

They will all be mentioned. To me, the question is not how many rights the constitution is able to name but what practical steps it takes to defend them. And there are some indications that, while it will mention all these rights, it will defer to the parliament for implementing legislation, which, again, will empower whatever majority exists in the parliament to determine the exact meaning and contours of those rights.

In your latest article for the Carnegie Endowment, you write that many constitutions defer to the national parliament to implement rights contained in the document.

This is not an Iraqi invention. It’s a European invention, in a sense, because the feeling in Europe was that matters of fundamental rights should be determined by the people’s elected representatives. But when that provision is applied in an authoritarian context, as has prevailed in most of the Arab world, where the parliament is a rubber stamp for the executive, the rights mean only what the executive says they mean. Iraq will be a little bit different because it, if this constitution works, will not be an authoritarian system. But it will still be one, I would say, where the majority will be greatly empowered to interpret those rights as it sees fit.

That makes the American Bill of Rights a unique document?

It’s a very unusual document. The example I like to give: Our First Amendment tells Congress what it cannot do, whereas most other constitutions tell parliament what it has to do in terms of providing rights.

When we talked in April, the major issue was federalism and the status of Kirkuk, the oil-rich city the Kurds hope to control. What’s the status of the federalism debate?

Federalism is the biggest stumbling block right now. It’s clear the Shiite religious parties and the Kurds can outline an agreement to give a significant degree of autonomy to the Kurdish region or recognize the autonomy that already exists. There’s even increasing interest in the Shiite population taking advantage of those same kinds of arrangements to build a separate southern region, which would be predominantly Shiite. When the Sunnis enter the room, as they’ve done over the last month, they have real problems. The most recent statements from the Sunni members of the committee suggest that they say, “On Kurdistan, we understand that this will have a particular status and we’re fighting history if we want to roll that back too much, but we want to stop talk of decentralizing the rest of Iraq and of building other regional governments. That sort of thing is really a code word for partitioning the Iraqi state and we don’t want to have anything to do with that.”

Why don’t the Sunnis want partition? It would give them control of central Iraq.

I think there are a couple of things motivating them. First, the Sunni members on the committee don’t like to be called the Sunni representatives on the committee. They like to be called the representatives of those parties that boycotted the elections, because they don’t even recognize that Sunni and Shiite and, even to some extent, Kurds are relevant political categories. They might be religious or ethnic categories, but they still come from the orientation that there is an Iraqi nation part of a larger Arab nation. So it’s a matter of principle. There may be something impractical in back of this as well, that if you have a northern region split off and a southern region split off, you’ve got a central region that’s not all that rich in natural resources, especially oil, and left to fend for itself.

There are many Sunni Arabs living in Kirkuk?

Yes. There are Sunni Arabs, there are Shiite Arabs. Kirkuk is a very complicated problem.

Is that going to be pushed off until the future?

I don’t think it’s going to be handled in the constitution itself. But when you talk about pushing it off into the future, the Kurds get very nervous because they think this matter has been settled in the Transitional Administrative Law and they simply want to implement that solution. That solution calls for normalization of the region, by which the Kurds mean—and there’s some basis for this in the Transitional Administrative Law—reversing the population movements sponsored by the Baathist regimes [when Kurds were moved out and Arabs moved in] and then deciding the final status of Kirkuk.

There are reports that Kurds have been moving into Kirkuk with the backing of the Kurdish government.

There have been some population movements, but there’s supposed to be a commission that will oversee what they call normalization. That commission has not gotten its work together yet, which is making the Kurds nervous because they think the intention of the Shiite leadership may be to postpone this issue forever.

Hanging over this debate is the provision of the TAL that says if three provinces reject the constitution it is invalidated. Sothere has to be a major effort to get everyone onboard.

That’s certainly true for the Kurdish population. With the Sunni population, there’s the same kind of dynamic. But if the Sunnis boycott the referendum to ratify the constitution—as they did in the January parliamentary elections—they would in a sense be voting for the constitution, because their votes wouldn’t be counted against the two-thirds figure that has to approve it. That’s one of the reasons there are indications from Sunni leaders that they don’t want to sit out the referendum.  

What kind of grade would you give the operations of the interim government?

It is in an almost impossible situation. I think its fundamental instincts are right. There has to be some kind of political process that brings together various Iraqi political forces and gets them to talk. My concern is that they’re doing it in such a rushed fashion, focusing so much on meeting this deadline, that they may be undercutting and shortchanging this process. So I might give them a good grade for intentions, but I might say to them what I sometimes say to my kids when they are doing their homework: “Slow down, take your time, and make sure you do it right.”