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Coup in Baghdad
Unfinished Constitution
Presented, vote Delayed
By Juan Cole
08/23/05 "ICH"
-- -- According to the interim constitution, the permanant
constitution should have been presented to parliament and passed
by August 15. There should have been two readings of it, two days
apart, before the vote. Otherwise, parliament should have been
dissolved and new elections called. Parliament avoided this fate
with a last-minute amendment of the interim constitution, allowed
if by 3/4 vote, though the nicety of two readings of the amendment
two days apart was dispensed with (arguably, unconstitutionally,
though it is a relatively minor affair). The amendment stipulated
that the new constitution would by passed by August 22, with other
conditions unchanged.
The new constitution, with blank passages, was presented to
parliament just before midnight on August 22. But parliament did
not vote on it, and a "three-day delay" was announced.
Announced?
The rule of law is no longer operating in Iraq, and no pretence of
constitutional procedure is being striven for. In essence, the
prime minister and president have made a sort of coup, simply
disregarding the interim constitution. Given the acquiescence of
parliament and the absence of a supreme court (which should have
been appointed by now but was not, also unconstitutionally), there
is no check or balance that could question the writ of the
executive.
The NYT suggests that the religious Shiites had been planning to
use their majority in parliament to simply pass the constitution
they liked into law, presenting everyone else with a fait
accompli. Somehow they were blocked in this plan by the secular
Iyad Allawi bloc and by the Kurds. Having failed in this gambit,
they punted, giving themselves 3 days by simple announcement.
Al-Zaman suggests that some parliamentarians, including Allawi and
some of the Kurds, actually want parliament dissolved and new
elections held, convinced that in the next parliament the
religious Shiites will not have such a dominant position. They
think that might be a better situation for drafting the
constitution. Al-Zaman did not give any quotes or proof that this
suggestion is founded in more than speculation.
The unfinished draft of the constitution presented was hammered
out by community leaders like Jalal Talabani (the Kurdish
president of Iraq) and Abd al-Aziz al-Hakim (Shiite leader of the
United Iraqi Alliance parliamentary bloc). The constitution
drafting committee in parliament appears to have been superseded.
The Sunni Arab delegates complained of being frozen out. A partial
deal was struck between Shiites and Kurds. Now they will take 3
days to complete the bargain and then lobby the Sunnis to accept
it. ("Have we got a deal for you!") The Sunni Arab
members of the drafting committee, not recently consulted on the
draft, rejected the entire process and much of the language with
some outrage.
It could matter. Any three provinces can reject the constitution
by a 2/3s margin in the October 15 referendum. I'd say Anbar and
Salah al-Din are in the bag for a no vote at the moment. Since
Ninevah, Diyala Baghdad, and Babil are mixed, though, it isn't
clear whether the Sunni Arabs can muster a 2/3s "no"
vote elsewhere. Maybe if the Turkmen and Chaldeans/Assyrians join
them in Ninevah. Or if the Sadrists join them in Baghdad Province.
In insisting on this veto privilege, which Grand Ayatollah Sistani
always rejected, the Kurds may have hoisted themselves on their
own petard-- giving the Sunni Arabs a means of rejecting the loose
federalism they advocate.
I don't know how this very loose federal system will work, and the
granting of the right to form provincial federations seems to me
dangerous. And I have a sinking feeling that rigid interpretations
of Islamic canon law may end up trumping some of the beautiful
human rights otherwise promised.
Back
in the real world, all of Iraq's petroleum production was
knocked out on Monday.
Al-Sabah
gives the Arabic text of the draft constitution presented to
the Iraqi parliament just before midnight on Monday, Baghdad time.
Although the wire services say that the preamble was blank in the
version presented, al-Sabah gives a long and quite beautiful
preamble that recalls Iraq's past greatness (Sumer, Babylonia),
and claiming that Iraqis invented writing and the elements of
civilization and passed the first law ever formally passed. This
assertion may be more or less correct. It also bows to the Shiite
religious authorities in Najaf, as well as "leaders and
reformers."
Here is my rendering of some key passages:
Article 1: The Republic of Iraq is an independent state and
sovereign. The form of government therein is republican and
parliamentary, democratic and federal.
Article 2:
Para. 1: Islam is the official religion of state, and is a
fundamental source for legislation. [Note: It is not THE
source of legislation, though being A FUNDAMENTAL one may
amount to much the same thing.
a) No law may be legislated that contravenes the essential
verities of Islamic law. [Note: The TAL and earlier drafts said
that law may not contravene the verities of Islam. By specifying ISLAMIC
LAW-- ahkam al-Islam-- this text enshrines the shariah or
Islamic canon law quite explicitly in the constitution and would
allow religious jurists to question secular legislation.]
b) No law may be legislated that contravenes the principles of
democarcy.
c) No law may be legislated that contravenes the rights and basic
liberties enumerated in this constitution.
2. This constitution guarantees the preservation of the Islamic
identity of the majority of the Iraqi people, just as it
guarantees complete religious rights to all individuals, of
freedom of religious belief and practice.
3.Iraq is a country of numerous peoples, religions and rites, and
is a part of the Islamic world; and the Arab people within it form
part of the Arab nation.
[Article 4 gives full recognition to Kurdish as a national
language for official purposes, alongside Arabic.]
5) Law is sovereign. The people are the source of (governmental)
powers and of their legitimacy, and exercise it through direct
secret ballot and through its constitutional institutions . . .
Article 7 forbids racism, terrorism, excommunicating people
[saying that someone who claims to be a Muslim is actually an
infidel], ethnic cleansing, excluding these phenomena and anyone
who incites to them from Iraq's political pluralism. Especially
named in this regard is the "Saddamist Baath Party,"
which is banned here just as the Nazi Party is in post-war
Germany. [The Sunni Arab delegates are complaining about this
provision, and the mention of Saddam's name. Many are ex-Baathists.]
Later, the production of nuclear, biological and chemical weapons
is forbidden.
10) The [Shiite] holy cities [al-`atabat] and religious shrines in
Iraq are a religious and civilizational entity, and the state
emphasizes and safeguards their inviolability, and guarantees the
free performance of rituals in them.
Article 13 forbids any provincial constitution from including
provisions that contravene the national constitution.
18 a forbids stripping any natural-born Iraqi of citizenship under
any circumstances. Gee, maybe Bush could learn something here-- he
wanted to strip US citizens of their citizenship as part of his
'war on terror.' But no one has more terror than Iraq, and they
resisted this temptation. US congressional supporters of Bush's
authoritarian so-called "PATRIOT" bill should be shamed
by article 18, section A of the Iraqi constitution.
22 guarantees the right of employment to all Iraqis. [Good luck.]
39: Iraqis are free to practice personal status matters in
accordance with their religions or rites or beliefs or choice.
This will be organized by statute. [Note;: This article is
a judge's ultimate nightmare. There will be a civil code governing
marriage, divorce, inheritance, alimony, etc, which are called
"personal status" matters. But there are also religious
codes, whether Shiite law or Catholic canon law. Each individual
may choose which law to be under. But what if a Shiite woman wants
to be under civil law and her husband wants to be under Islamic
law? What if civil law provides for alimony after divorce but
Shiite law does not? Which legal code will the family's case be
judged under? The man might favor the Shiite court, which will
relieve him of alimony. But the woman has chosen civil law, which
will award her alimony. How is this dispute over jurisdiction
adjudicated?]
AP's
translation of some articles is online. But frankly it is so
untechnical as to be almost useless with regard to some key
paragraphs. It leaves out the bit about no legislation
contradicting the laws (akham) of Islam. You can't tell
what is going on with regard to personal status law, etc. News
organizations ought to hire bilingual lawyers as free-lancers for
this sort of task-- translating a constitution is a tricky thing
and many technical terms can be deceiving, especially if you have
technical terms drawn from both civil and religious law!
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