In February 1919, the India office sent a telegraph to the British administration in Baghdad expressing concerns about a constitution for Iraq. The British objective, said the message, "should be a flexible constitution giving full play to different elements of population and recognising and incorporating local peculiarities and idiosyncrasies." Today, 70 Iraqis—61 men and nine women—on the constitutional drafting committee in Baghdad are wrestling with some very familiar problems.
Despite the recent surge in suicide bombings, the constitution dominates the Iraqi conversation. Lectures, seminars, television shows and newspaper specials are all busily debating it. One of the main Iraqi television talk shows recently dedicated an hour to interviews with representatives of Iraq's smallest minorities—a Yezidi, a Mandean (a follower of St John the Baptist), a Shia Kurd, a Turkmen and a Chaldean—on how they thought it would affect them.
America's constitution took 12 years to write. Italy's process started in 1943 and the final document was produced in 1947. South Africa took two years to produce a constitution after the fall of apartheid. So if Iraq does opt for a six-month extension—the draft constitution is due on the 15th August—there will be no shame. The Americans are very keen to see the August deadline met, but the Iraqis on the drafting committee carry the responsibility for completing the task successfully. Time is not on their side, but in typical Iraqi fashion, it is quite possible that after a sudden burst of committee activity on several apparently insurmountable problems, a resolution will finally be reached deep into the eleventh hour.
The transitional administrative law (TAL), Iraq's current provisional constitution, written originally in English by a group of US legal experts assisted by a few western-educated Iraqi lawyers, is, after the Koran, the most important document in Iraq today. It was adopted unanimously in March 2004 by the Iraqi governing council—whose members represent factions accounting for 90 per cent of the seats in Iraq's elected parliament. Although not a perfect legal document, and subject to criticism for its occupation-tainted provenance, the TAL has set the basic measure for safeguarding the fundamental rights of Iraqis. Officially, the drafting committee calls the TAL one of its "sources of reference." Behind the scenes, however, I am told that the TAL is the basis of the new constitution. This also means that the issues unresolved by the TAL now have to be sorted out by the drafting committee.
Logistically, the committee faces several problems. It has just been allocated four bare rooms inside the convention centre located in the green zone, after weeks of meetings in borrowed rooms and hallways. In the 50-degree Baghdad heat, the UN has just provided them with air conditioning units and office furniture for their daily seven-hour meetings. A committee budget of $10m has been approved by the assembly, but the money has not been released, forcing the committee to beg $2m from the UN.
Baha al-Araji, the committee's rapporteur, a moderate 40-year-old lawyer and MP from the Independent National Bloc, which is close to Moqtada al-Sadr, has the demanding task of attending the meetings of the drafters' six subcommittees (plus the co-ordination committee). He wearily tells me, "We must meet the 15th August deadline. The Iraqi people have been so patient and expectant of this constitution. We cannot let them down." He works seven days a week. Drafting committee members often barely make it home in time for Baghdad's 11pm curfew.
The membership of the drafting committee mirrors the national assembly breakdown of Shia and Kurds, and now 15 Sunnis have been drafted on too—raising the original total from 55 to 70. The Sunnis were subject to the same eligibility criteria that applied to MPs, including a ban on former members of the four top levels of the Ba'ath party. Privately, MPs say that the assembly has had to bend the rules on this, to keep the process moving.
If the committee does come up with a draft by the deadline (any extension must be requested by 1st August), the document will go to a national referendum some time before 15th October. It will be subject not only to rejection by an overall "no" majority of Iraq's 18 provinces, but also to the so-called Kurdish veto, whereby if three provinces vote against by "super-majorities" of two thirds or more, the document is rejected. As both the Shias and the Sunnis also heavily dominate at least three provinces, the "Kurdish veto" is a Shia and Sunni veto too.
This means that however much the Sunni Arabs might have disadvantaged themselves by not participating in the January elections, the people drafting the constitution will have to take Sunni interests into account. If the Shias and Kurds fail to do so, their constitution fails. Moreover, the Shias and Kurds have given the Sunnis a veto even at the drafting committee level by choosing to make decisions by consensus rather than a vote. Notwithstanding this effort to include them, it is not clear whether the 15 Sunnis want to participate in writing the constitution or to block the process in protest against the current status quo which has ended their long political hegemony in Iraq. Two of the 15 have already been killed, in what seems like an effort to derail the constitution by other Sunnis.
Enthusiasm is not shared by all committee members: there are only about 25 who attend regularly. Between the Kurdish bloc and the Shia SCIRI, there is a general attitude of "I scratch your back and you scratch mine." The arrival of the Sunnis has added drama to the meetings. In one discussion about enshrining the banning of the Ba'ath party in the constitution, one member of the Kurdish bloc clashed with a Sunni former Ba'athist, who argued that the Ba'ath party had been a good thing, but ruined by Saddam. The Kurdish MP, a former prisoner at Abu Ghraib, felt this to be an insult. A shouting match ensued, lasting for several hours and dragging in the rest. The MP eventually won and the Ba'ath party will be banned. In a later episode of unusual openness, both Sunnis and Shias discussed their fears of each other.
The three main constitutional challenges the drafters face are federalism, Islam and oil.
Federalism In March 1932, King Faisal I, Iraq's first king, looking to Iraq's history for a solution, suggested the creation of three provinces along the lines of the three Iraqi vilayets of the Ottoman empire, each with its own system of taxation and local government. Faisal died a year later. Instead of the reforms that he wanted, Iraq's central government transformed over time into a police state that tormented the country. The federal option being discussed for Iraq today represents a return of sorts to Faisal's vision and to the long and relatively successful Ottoman precedent.
The path that Britain chose for Iraq in 1921—an independent centralised state that empowered the Sunni Arab minority at the expense of everyone else—represented the triumph of political expediency. The pressure for independence came from a small group of Iraqi Sunni nationalists, promoted by the Arab bureau of TE Lawrence and Gertrude Bell. The alternative model of decentralised direct British rule backed by the India office could have allowed for further dialogue with Iraq's Kurds and Shia. The Arab bureau lost patience with the Shia too quickly.
With Iraqis now choosing their own destiny, that mistake is unlikely to be repeated with the Sunnis, who are most opposed to federalism. Arguably, federalism is already instituted with the Kurdish status quo. Several proposals are on the table, the most popular of which is identical to the TAL: any three of the existing 18 provinces having the right to form a region. In the interim, a halfway measure of decentralisation is being promoted. This means that the provinces will have a much higher degree of independence than today. They will have allocated budgets that they can spend without interference from Baghdad. Meanwhile, Baghdad will continue to dictate country-wide policy, especially over the so-called "sovereignty" portfolios: the ministries of oil, finance, foreign affairs, defence and interior. It is not clear whether this is a workable formula or not.
Oil The disposition of Iraq's oil wealth is closely bound up with the question of federalism. With most of Iraq's oil in the Shia south and the Kurdish north, and with a history of the Sunni centre misappropriating it, the new constitution has to ensure that regions that lack oil share fairly in the wealth. According to the TAL, Iraq's resources must be distributed equitably. The new constitution is unlikely to retreat from this point.
One idea, backed by economic liberals, would be to create a national oil holding company in which every Iraqi would hold a single inalienable and non-transferable share. State oil revenues—the royalties from privately managed producers—would be distributed to this nation of equal shareholders. Iraq's government would get its revenues from public taxation, rather than an unaccountable oil kitty. The electorate would thus control the spending of its oil patrimony, and the principle of governing and spending by consent would be enshrined in the most powerful place: the pocketbook of the Iraqi individual. Iraqis want to avoid the so-called "oil curse"—the opacity and arrogance of power that around the world tends all too quickly to refine hydrocarbons into kleptocracy, with extremely noxious political by-products. The one-Iraqi-one-share solution would also eliminate arguments over the distribution of oil money among Iraq's various regions.
Islam The role of Islam in the new Iraqi constitution has become like a multiple choice question: "Should Islam be a) a source, b) the only source, c) one principal source, or d) the principal source of legislation?" The smart money right now is on something between choices c and d—maybe a watered-down c. The benchmark for the committee's work is that Grand Ayatollah Ali al-Sistani—as the spiritual leader of Iraq's 65 per cent Shia majority, he has the ultimate veto in Iraqi politics—did not object in 2004 to the TAL's language stating that Islamic Shari'a is one source among others, as long as these sources do not contradict the Shari'a.
Iraq's challenge with Shari'a in its constitution is the same issue that all Muslim states face: harmonising Shari'a with civil law, and reconciling Shari'a with the sort of general declaration of equal human rights that most states have in their constitutions.
Iraqis need to decide how Islamic they want their new state to be. The laws of Shari'a, according to most Islamic law experts, affect only about 15 per cent of the law in general—namely matters relating to family law, banking and the penal code.
Shari'a has had so many variations and interpretations over the last 14 centuries that it is not in itself a threat to the civil rights of Iraqis; the threat would come from governments that want to impose a particular version of it—and in Iraq today there is nothing remotely close to a Taleban or Iran-style mullah-ocracy with a decent hope of popular sanction to do so. The Kurds wouldn't accept it. Neither would Sistani or the country's large secular and moderately Islamic tendencies. Do not expect to see handless thieves and stoned adulterers in the streets of Baghdad or Basra any time soon.
That said, the Iranian-backed SCIRI party, with one of its members heading the drafting committee, has openly advocated changing Iraq's personal status law to dictate a more Islamic society. What this means for women is reduced equality in matters of marriage, inheritance and social welfare. Drafting committee members I have spoken to, however, are not very concerned. Najiha Abul Amir of the Islamic Da'wa party—besides SCIRI, the other main Iranian-backed party in Iraq and thus a potential force for abridging women's rights—insists that her party has no aggressive agenda regarding the Islamic part of the constitution: "Our constitution needs to respect Iraqi tradition and custom which are Islamic in nature; we are not going to bring something alien to us." She says that many activities granted as rights in other countries simply could not be accepted in Iraq, such as homosexual marriage. As far as imposing Islamic dress on all Iraqi women, she says, "As a woman, I don't want my rights to be abused, so why should I deprive other women of what I want?"
But what is it that she does want? Like every other female MP in her party, Amir wears a veil and infuses her speech with Islamic references.
When I questioned another Da'wa MP, Shirwan Al-Waili, about women's rights, he resorted to Ayatollah Sistani's recent statement that women possess equal political rights and must be allowed to seek the highest office in Iraq. This formulation, of course, emphasises political rights and does not mention social rights. When pressed about how he would reconcile Shari'a with the principle of equality of all citizens, which is also likely to be enshrined in the constitution as it is in the TAL, Waili did not respond.
The reason for trying to meet the 15th August deadline is to give the earliest possible full democratic legitimacy to the Iraqi political process, and thus to further delegitimise the insurgency. The danger for Iraqis is that rushing the process could endanger the historic task of producing a viable and authoritative constitution. Instead of hurrying the constitution, why not sign a status of forces agreement (SOFA) with the coalition in the meantime? This would formally define the coalition as subject to Iraqi sovereignty, and reassure Iraqis—increasingly fed up with the undefined US military presence—that foreign armies are there at the behest of their own elected government.
