Al-Ahram Weekly Online   25 - 31 August 2005
Issue No. 757
Published in Cairo by AL-AHRAM established in 1875

Separation is the goal, federalism the means

Iraqis are divided over the draft constitution, and especially over the federalism issue, writes Zaid Al-Ali

Click to view caption
An official fills out the form of an applicant at the registration centre in the Dubat neighbourhood of the war-battered predominantly Sunni Iraqi city of Falluja securing his right to vote in the October referendum on a new Iraqi constitution

In what is now becoming a familiar pattern, the Iraqi constitutional committee has once again failed to complete the draft constitution and the entire process has been delayed yet again. This is unsurprising given the number of disagreements that were yet to resolved at the last deadline, which was 15 August, 2005. The parties had not agreed on some of the most important issues, including the very principle of federalism, the role of religion in the constitution, and women's rights, amongst many others.

The debate relating to the principle of federalism, and the fact that it is opposed by the Sunni community as well as the Sadrist movement, is well known. Another good example of the disagreements between the parties is the issue of how the new parliament should be structured. As is the case in almost every federal state throughout the world, if Iraq is to adopt a federal model of government, it will need a second chamber of parliament that is designed to allow the different states to be represented at the national level. Previous drafts from Iraq's constitutional committee provided for a strong second chamber of parliament which would be able to block legislation in certain circumstances.

However, the draft that the parties were discussing on 15 August, 2005 provided that the composition of the second chamber was to be determined by a law to be passed by the first chamber of parliament. Thus, the first chamber was to determine the weight and importance of the second chamber, which in practice could mean that the second chamber could be reduced to the status of an advisory committee.

In addition, the draft constitution that was up to date as 15 August, 2005 did not provide for a mechanism through which the second chamber could block legislation. What this probably means is that although the parties to the negotiations were unable to decide upon the composition of the second chamber, they were so determined to submit the constitution to the national assembly, that they were willing to leave the issue to a later date, even if this meant that the entire second chamber would be left without a role as a result. Had these provisions been included in the final draft of the constitution, the effect would have been to leave the various states within a federal Iraq at the mercy of the central government, which is in fact in complete contradiction with the very principle of federalism itself.

Another fundamental difference which goes to the heart of the dispute between the parties to the negotiations relates to the creation of a constitutional court. Constitutional courts exist in many countries throughout the world, and they are typically courts which have exclusive jurisdiction over the question of whether laws are constitutional or not.

Earlier drafts of the Iraqi constitution provided that the constitutional court would be made up of nine members of which four were to be chosen from members of religious institutions. This alarmed some parties to the negotiations who were weary of the growing influence of religious politics in the country, and a compromise was sought which entailed that the constitutional court would not have authority to strike down legislation but would only have an advisory role. Another draft provided that the constitutional court was to be subject to the oversight of the national assembly, which would have been somewhat ridiculous as a constitutional court is normally designed to exercise authority over the parliament, and not vice versa.

However, on 15 August the parties to the negotiations were no longer in agreement as to the purpose that the constitutional court was designed to achieve. Indeed, it has been reported that the Islamic parties that are represented in parliament and in the constitutional committee are now determined for the constitutional court to act as a type of guardian council, which would ensure that no legislation violates Islam. This is of course extremely problematic for the Kurdish Alliance, Iyad Allawi's party, and many of the country's religious groups. That this had not been agreed upon on 15 August demonstrates to what extent the most basic principles had not yet been agreed upon, and that most of the work that had been carried out up until then was merely cosmetic.

The effect of all this, and of the fact that the constitutional committee was still at such a rudimentary stage in their negotiations, is that the occupation authorities turned up the heat, and began placing an enormous amount of pressure on the parties to come to an agreement. At times, the US ambassador would even take sides with the parties, and argue that others should drop their objections in relation to certain issues.

Incredibly, at one point, the Americans even sided with the United Iraqi Alliance, which is supported by Ayatollah Sistani, on the issue of the role of Islam under the new constitution, over the objections of their traditional allies, the Kurds. In addition, various parties have been pushing the constitutional committee to present the draft to parliament regardless as to whether or not the representatives of the Sunni community agree with its provisions. That this should be happening betrays the Americans' intentions; they seek a result regardless of whether or not the representatives of Iraq's various constituencies actually agree with what is being written.

This discussion in fact reveals the fragility of the entire process. The Sunni community, which boycotted the elections that took place earlier this year, has recently come to accept that the political process that is set out in the Transitional Administrative Law which works as a type of temporary constitution and which was drafted and ratified by the occupation authorities in 2004 can be used as a sword against the occupation itself. As such, members of the Sunni community are determined to vote in the next election in order to scuttle the draft constitution, which they see as being more akin to an epitaph for Iraq than anything else. They are likely to be joined by the Sadrist movement, which although staunchly religious, is also strongly nationalist and is unlikely to accept a type of federalism that could lead to the breakup of the country.

If indeed the US authorities do encourage the national assembly to pass the draft despite the objections of the Sunna community, the effect will no doubt be to strengthen the resolve of the latter to scuttle the draft in the context of the referendum that is set to place on 15 October, 2005. This was made clear enough by the number and the size of the anti-federalism demonstrations that took place last Friday in both Shia and Sunni communities throughout the country. This is something that the US and the current Iraqi government is of course aware of, and they will no doubt act accordingly.

There is in Iraq, and perhaps in the Middle East as a whole, perhaps no issue more important that the ongoing constitutional process. The provisions of Iraq's new constitution may very well lead to the breakup of the country, which based upon the behaviour of some of the parties that are involved in the process seems to be what many parties are striving for. For them, separation is the goal, and a loose federal model may very well end up being the means.

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