Devil in the details
After some serious disagreements, common ground was reached on an interim constitution for Iraq and mechanisms of sovereignty. If it sticks, it could be the first of its kind in the region, Ramsey Al-Rikabi reports from Baghdad
Iraq's Interim Governing Council (IGC) finally agreed on a draft constitution. The agreement was reached two days late and just one day before the gruesome attacks in Karbala and Baghdad against Shias celebrating Ashura. The issues that were leading to a split within the IGC over the temporary constitution and a showdown between the Shias and the Americans over elections have been ironed out, or at least fudged.
The final draft was unanimously agreed upon in the pre-dawn hours of Monday. The document includes a bill of rights that enshrines the principles of freedoms of speech, assembly and religion. A Coalition official close to the negotiations referred to it as "a historical document, not just for Iraq but for the entire region," given its broad protection for individual rights.
At around 4.20 on Monday morning, the 25-member Governing Council unanimously endorsed a temporary constitution. The agreement was followed by congratulatory speeches and standing ovations, according to participants. The upbeat mood after the finalisation of the constitution, also known as the transitional administrative law, came at the end of three days of tedious, and at times acrimonious, negotiations.
As laid out in a previous agreement between the Coalition Provisional Authority (CPA) -- the occupation government headed by US Chief Administrator L Paul Bremer -- and the IGC, the interim constitution was to be completed by 28 February. Negotiations had snagged on controversial issues such as the role of Islam, women's rights and the status of Kurdish autonomy.
On the eve of the original deadline, eight members of the Governing Council abandoned the negotiations, the first walkout since the Council was appointed last year. The row was sparked by a 15-10 vote to repeal an earlier decision supported by many Shia council members allowing Islamic Shari'a law to govern personal status issues. If left intact, the earlier decision would have significantly curtailed women's rights in marriage, inheritance and representation. According to reports, some Shia members were particularly ruffled by the round of applause coming from woman's rights advocates present following the decision. After that low point of high drama, which caused the Council to miss the Saturday deadline, IGC members settled in for the almost two-day slog of hammering out the transitional law. Adnan Pachachi, the Governing Council member heading the constitutional committee, asked Bremer to help bring the parties back to the negotiating table.
A compromise was reached on the status of Islam in drafting laws. The interim constitution explicitly states that Islam will be "a source" of legislation, rather than the only source. The compromise, "strikes the right balance between recognising the Islamic identity of Iraq and the prominent role Islam plays in the lives of Iraqis with the individual rights enshrined in the bill of rights and democratic principles," said one Coalition official. As a concession to those pushing for the exclusivity of Islam in law making, it has been agreed that no laws can be passed that contravene Islam.
The role of women in the elected interim government is also addressed in the transitional law. The document states that women should hold 25 per cent of the seats in the transitional national assembly, which will be elected by early 2005. But this figure is mentioned only as a goal, not a quota. The idea of mandating a specific number of seats to be held by women was thrown out because the idea was believed unworkable.
The interim law recognises the Kurdish regional authority and accepts Kurdish as an official language alongside Arabic. But, the Kurds had to abandon their efforts to widen the area in the north of the country under their control, as well as their demand for a definite share of Iraq's oil revenues. Additionally, the draft constitution prescribes that all security forces are to be under the command of the central government. The Kurds had originally pushed to have their militia, the peshmerga, act as a national guard in the Kurdish regions vaguely under Baghdad's control. The final details on the status of the peshmerga -- as well as other militias, such as the Shia Badr Brigade -- are to be worked out later.
"It's a very important law," said Sunni Council Member Adnan Pachachi, calling the transitional law "quite unique and advanced for the region, especially the bill of rights".
Mahmoud Othman, a Sunni Kurd IGC member, described the interim constitution as "a victory for the Iraqi people ... We met in the middle and some people are not 100 per cent satisfied," he said, referring to the necessary compromises to square the differences, but, "we did our best and I'm happy. There's something for everyone."
The transitional law calls for one president, two deputies, a prime minister and a cabinet, with what Coalition officials hope are enough checks and balances within the executive office to avoid one person consolidating power. While some sections of the constitution will be immediately binding, like the bill of rights, others -- such as legislation governing elections and political parties -- mandate the drafting of laws to full Iraqi sovereignty. It will be up to whatever interim government takes over on 30 June to prepare for elections.
Last week, Grand Ayatollah Ali Al-Sistani made good on his commitment to respect the recommendations of a UN report on the feasibility of elections. Sistani, the most influential Shia leader in Iraq, forced US administrators to scrap their original plans for caucuses to choose Iraq's government in time for the 30 June handover. It is now clear that post-occupation sovereignty will be handed over to a body not chosen by direct elections, a pill made easier to swallow by the UN's confirmation that elections by then are just not possible.
In the statement released from his office in Najaf, Sistani called for "certain guarantees" that elections take place before the end of the year, hinting at a UN resolution calling for elections before 2005. "The Americans and Iraqis want the UN to participate," said Humam Hamudy, political advisor to the Supreme Council for Islamic Revolution in Iraq (SCIRI), a leading Shia organisation. "We are the weaker party and want the UN to participate because of its impartiality," Hamudy said.
Sistani also expressed apprehension that the mechanism for choosing an interim government could be "trapped by the obstacle of ethnic, sectarian and political quotas," a thinly veiled critique of the US administration's tendency to divvy up power between Iraq's various groups.
Sistani has dropped his demand that direct elections take place before 30 June, but stressed in his statement that interim government should focus on preparing Iraq for elections "without taking decisions that could be considered binding to any elected government".
This should not be a problem, given that come 30 June, nothing will really be binding. But American officials are confident that the interim government will stick to the draft constitution -- particularly the bill of rights and the mandate to set up elections -- even though one Coalition official conceded the document is "imminently imperfect" as it was drafted by an unelected body. Coalition officials here say they will use "the tools of diplomacy" after the handover to hold Iraq to its commitment, which it will be in a position to do after 30 June when the CPA effectively becomes the American embassy in Baghdad.
According to current plans, at least two new bodies will govern Iraq by 2005: an indirectly elected council to take over on 30 June, followed by a directly elected 275-member interim transitional assembly. On 30 June, the CPA will hand over authority to some form of temporary Iraqi sovereign government. The process for choosing this immediate caretaker government is still being worked out, with options ranging from America's original caucus-style elections to expanding the Governing Council to 50 or even over 100 members. The details of such a plan should emerge in the next few months, according to Coalition officials. The transitional law agreed to on Monday calls for direct elections for an interim transitional assembly no later than the end of January 2005.
In light of previously scrapped election plans and the spectre of an unbreakable deadlock over wording, the drafting of the interim constitution marks a significant success for the American- appointed IGC and their American caretakers. If the constitution holds and a new sovereign Iraq government affirms it, it could be a unique success in the region -- all things considered -- for individual rights and democracy.