Kurds and the constitution

Although they signed it, many Shia leaders feel Iraq's interim constitution gives too much to the Kurds, writes Ramsey Al-Rikabi in Baghdad

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A Spanish soldier shouts at Iraqis during a joint patrol with the new Iraqi army south of Baghdad. On Monday the newly elected left-wing PSOE party head Jose Luis Rodriguez Zapatero announced that Spain will withdraw its troops from Iraq in June, describing the occupation as "disastrous"

The ink was hardly dry on the new Iraqi interim constitution before the criticism started. The constitution -- also known as the transitional administrative law, or basic law -- was finally signed after extensive, and at times bitter, negotiations. But, it seems there is more wrangling to be done. Iraq's Shia are still not satisfied. Their reservations over the document are a mix of the patriotic, political, pragmatic and religious. No one doubts, however, that parts of the basic law protecting Iraq's Kurdish minority are the most contentious, especially for the Shia.

The discontent among the Shia, who claim to make up 60 per cent of Iraq's population, raises the question of how minority rights are to be approached and respected in post-Saddam Iraq. Shia concerns revolve mainly around two clauses in the interim constitution, which will take effect 30 June. The first, relating to the to- be-drafted permanent constitution due by October 2005, states that if a two-thirds majority of any three provinces reject it, the draft permanent constitution will fail, the elected national assembly will be dissolved and new elections must be held. Many Shia feel this clause gives undue veto power to the Kurds, although, logically, any group could scupper a permanent constitution.

The other clause, about amending the basic law, prohibits any change without the support of three-fourths of the elected national assembly, as well as consent from the interim president and his two deputies. Many Iraqis take exception to this rule as it was drafted by an unelected body and will effectively dictate the powers of the future elected government. Many Shia leaders say their main priorities after the handover of sovereignty this summer will be to change these two clauses.

Shia leaders have tended to cast their reservations in the most generous, and general, light. They are not worried specifically about the Kurds, they insist. Instead, they point out that the veto provisions could potentially throw the political process into an almost endless cycle of elections and redrafting. Additionally, the Shia have been noticeably louder in their condemnation of the constitution as a document drafted by unelected officials that will be binding on an elected national assembly. Grand Ayatollah Ali Al-Sistani, Iraq's most influential Shia cleric, called the basic law an "obstacle" to drafting Iraq's permanent constitution.

The conventional wisdom around Iraq is that the two-thirds majority veto clause was intentionally added to protect the Kurdish minority. The Kurds make up a significant majority in three northern provinces, and would be able to muster the votes to force down any permanent constitution they disagreed with. The Kurds want to keep the autonomy they have held for over a decade, since the American-British northern no-fly zone that effectively granted them administration protected their independence from Baghdad. Additionally, the Kurds' take on Islam is moderate compared with their Shia compatriots. Any draft permanent constitution that either erodes control over their areas of self- rule or imposes strict Islamic principles would more than likely be rejected by the Kurds. Besides putting the oil-rich area of Kirkuk under Kurdish authority, which is less than likely, the Kurds will most probably use their veto power to block any encroaching constitution, rather than using it to extract significant concessions from either the Shia or Sunnis.

But who can veto what and when is not the only contentious part of the interim constitution. The role of Islam had been a sticking point from the beginning, and its influence in law-making was significantly fudged. Some Shia leaders had pushed for the implementation of Shari'a law as the sole source of legislation. In the end, while recognising the Islamic identity of Iraq, the transitional law makes Islam a source, not the source, of law. But it goes on to add that no law can be passed that contravenes the basic tenets of Islam, or the democratic principles and individual liberties also enshrined in the document. How that will pan out when it is time to draft laws will be anyone's guess.

Some Shia still want a larger role for Islam. Last Friday, over 2,000 people protested in Baghdad against the new constitution, calling for the immediate implementation of Shari'a law. Many Shia clerics as well used their Friday sermons to denounce the basic law. Moqtada Al-Sadr, a firebrand Shia cleric influential in Baghdad's poorer neighbourhoods, likened the basic law to the Balfour Declaration, the 1917 commitment from Britain to support the establishment of a Jewish homeland in Palestine. "We are selling Iraq and Islam," Sadr told Friday worshipers. Other clerics dismissed the transitional law as being the sole work of the Americans, forced onto Iraq.

The dispute over the constitution again highlights the struggle between Iraq's Shia, Sunnis and Kurds for political significance and power in the new Iraq. But for all the talk of possible sectarian strife, it seems to be just that -- talk. The Americans are sure someone is trying to set off a civil war in Iraq. But in spite of the horrific acts of violence targeting Iraqi civilians in the hope of throwing the country into chaos, the sense of hostility between Iraq's various groups is barely perceptible. There might be a lot of suspicion, and talk of ethnic strife, but the possibility of an all-out civil war seems remote.

With the ousting of Hussein, the Shia are eager to claim the political power they believe their majority deserves and was denied for so long under Saddam's Sunni-dominated government. But with the Americans overseeing the political restructuring of the country, the emphasis has been on consensus and power sharing, which the Shia are more than willing to play along with. The disputes over the constitution, however, reveal a troubling question just below the surface: are the Shia hoping to replace an iron-fisted minority with the tyranny of the majority? If anything, the veto clause of the basic law has slightly checked Shia aspirations to get what they want, when they want it. Whether it turns out in the long run to be a lesson for the Shia about compromise or merely a slight hurdle on the way to Shia political dominance remains to be seen.