The Draft Constitution of Iraq

Differences of Opinion and Common Ground

Iraq is in turmoil, on the verge of civil war. The draft constitution, however, demonstrates that – despite fierce conflicts of the various factions – there is indeed a culture of debate in Iraq. By Raschid al-Khayyun

photo: AP
Iraq's National Assembly has passed the draft constitution that aims to balance the forces of Islam and democracy

​​Iraq's former dictatorial regime banned political parties, which are the foundation on which every nation is built. Since the regime was toppled, however, the only parties to emerge have been of a religious or nationalistic orientation, whereby the latter refers to the representation of Iraq's Kurds.

Because the Baath party always claimed to be the only pillar of Arab nationalism in Iraq, other nationalist organisations gradually disappeared from the political landscape. In order to be able to fully grasp the implications of the conflicts among the Sunnis, the Shias, and the Kurds this needs to be taken into consideration.

The Sunnis are also suffering from the fact that they did not involve themselves to any significant extent in the process that lead to the formulation of the Iraqi constitution, which in turn put them in a weak negotiating position in this process. For example, only 15 members of the "Committee of Sunni Clerics" were involved in the Constitution Committee.

The Sunnis boycotted the last elections and obviously do not feel they are in a position to get their opinions across. In the national assembly the Sunnis cannot get their way without coalition partners. Their position in parliament is additionally weakened not least because they boycotted the last elections.

Federalism: a bone of contention

The question of a federal Iraq is one of the bones of contention in the drafting of the new constitution. In view of the conditions in this historical region and the differences regarding language, customs, and traditions, there was widespread agreement on the issue of an autonomous Kurdistan. The call for a federalist system or autonomy is one of the oldest demands of the Kurdish movement. While this demand was indeed acknowledged by former Iraqi governments, it was never actually implemented.

Even though the Shia concept of federalism – which, in the words of Abdul Asis el-Hakim of Najaf of the Shiite alliance, constitutes a Shia insistence upon autonomy for the southern regions of the country – cannot be compared with Kurdish demands for autonomy, it nevertheless meets with resistance from the Sunnis.

They argue that a federal system is a threat to Iraqi unity and will eventually lead to a break-up of the country. Be that as it may, the Sunnis were not able to avert Kurdish autonomy since it has been in existence since 1991.

The just distribution of mineral resources

But federalism is not the only bone of contention; there is also the key question of how the country's mineral resources should be distributed. In the view of both the Kurds and the Shias, distribution of these resources should be the responsibility of both the regional authorities and the central government. They would like to see it set down in law that mineral resources should be distributed in accordance with the density of the regions' and provinces' populations.

The Sunnis, on the other hand, reject this formula and would like to see the distribution of mineral resources remain in the hands of the central government. Unlike the mostly Sunni western regions of Iraq, the non-Sunni regions of Kirkuk and Basra are rich in oil deposits.

Iraq's national identity

The question of Iraq's national identity equally gives rise to differences of opinion among Sunnis, Shias, and Kurds. The Sunnis, who are considered the champions of Arab nationalism, called for an Arab state with a constitution that states that Iraq, or the Iraqis, are part of the Arab nation (umma).

President Jalal Talabani has, however, pointed out that Iraq's citizens belong to a variety of ethnic groups and that the population is not, therefore, exclusively Arab; there are also Kurdish Iraqis, Turkmen Iraqis, Assyrian Iraqis, and Chaldean Iraqis. That being the case, he said, it would be incorrect to say that all Iraqis belong to the Arab umma. It was subsequently agreed that Arab Iraqis are members of the Arab umma, and that Iraq is part of the Islamic world and a member of the Arab League.

The Baath party

One of the central Sunni demands is to not ban the Baath party as a political and ideological body. To date, however, only the party name has been abandoned, not the party itself. The implications of the role of the Baath party during the Saddam Hussein era are complicated: under the old regime, many people only joined the Baath party under duress or for other reasons, and did not actually identify with its ideology.

Issues that could ignite further debate – most particularly the Kirkuk question – have been postponed until after the upcoming elections. The draft constitution stipulates that this question must be resolved by 31 December 2007 at the latest. This means that Article 58 of the national constitution, which will no longer be valid once the new constitution is in place, still applies.

The Sunni demand for a religious state and the recognition of Islam as the main source of legal order came as a surprise. However, not all Sunnis agree with this demand, which leads to the assumption that it is a matter dear to the hearts of radical Sunnis alone. It is justifiable to consider this demand an attempt to forge a gulf between the Shia and Kurdish parties – Shiites and Kurds had practically reached a compromise concerning the role of Islam in the constitution, after long and tough negotiations and without the Shiites.

While secularism has always been the cornerstones of the Kurdish position, the Shias have now been working for the recognition of Islam as the only source of justice in Iraq.

Women's issues

The new constitution treats women unfavourably. Article 39, which defines their rights, has de facto abolished the Law on Civil Status that had been in place since 1959. Article 39 gives Iraqis the right to regulate civil matters (such as marriage) according to their religious beliefs. Many fear that if the constitution and Article 39 actually come into effect and are applied this will lead to a split within the different groupings.

This would in turn bolster individual parties and weaken the central government. The Law on Civil Status dates from the monarchy between 1921 and 1958. However, the governments of the era were reluctant to actually implement it for fear of a direct and fierce confrontation with the Shia clerics and, in particular, those who followed Ayatollah Mohsen el-Hakim in Najaf. After the revolution of 14 July 1958 other articles were added to the law, which was subsequently passed despite resistance from the clerics.

Above all, it was Article 74 that fuelled the clerics' protest. This article gave women and men equal rights in terms of inheritance – a rule that directly contradicts a verse in the Koran. Article 74 restricts the number of wives a man can have and defines the age at which a woman can marry, while according to the Shias, a woman can be married at the age of nine.

Generally speaking, however, the articles of the draft constitution are based on the ideals of liberalism. Most of the articles state that men and women are equal and that all Iraqis have the same rights and obligations. They guarantee the political freedom to found parties, associations, and trade unions; the freedom to practice religion; the freedom of speech; and the freedom of movement. Arbitrary arrests and attempts to exert pressure on those holding contrary opinions are against the law.

The highest level of agreement

However, there is an article in the draft constitution that declares all laws that are not compatible with Islam to be null and void. On the other hand, there is also an article that firmly anchors the constitution in democracy and declares all laws that are undemocratic to be null and void.

The period before the elections, during which the Constitution Committee was set up, proved that there is indeed a culture of debate in Iraq. The same can be said for the majority of clerics who are trying to include their demands in the drafting process. This is what made it possible for a sort of compromise to be reached on many points with the followers of laicism, which in turn means that the aim will now be to draft laws that are compatible with both Islam and democracy.

In view of the problematic demands for a federalist state and the dissolution of the Baath party, the Shias, Sunnis, and Kurds who are negotiating with each other have reached the highest level of agreement.

Anyone who examines the situation in Iraq more closely in the light of the heavy burden of the past and the dominance of religious groups will see that the draft constitution offers Iraq and Iraqi society promising ways of development and progress.

Raschid al-Khayyun

© 2005

Translation from German: Aingeal Flanagan

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