New constitution unlikely to transform Iraq into a modern liberal democracy


An expert at the University of Michigan claims the incumbent Iraqi executive and legislature combined to stage a coup, writes Michael Jansen.

The latest text of the Iraqi constitution due to be submitted to parliament today is unlikely to transform formerly authoritarian Iraq into a liberal democracy.

The process of drafting the constitution has not been democratic. It has instead been dominated by religious Shias and separatist Kurds, who won 70-75 per cent of seats in parliament in the January poll.

Sunnis, 20-25 per cent of the population, mainly boycotted, secured only a handful of seats, and are seriously under-represented.

The 71-member parliamentary commission which drafted the constitution has only two Sunni voting members. Fifteen Sunnis approved by Shias and Kurds, and added several weeks after deliberations began, are only advisers. They do not enjoy the support of fellow Sunnis, particularly the insurgents who have mounted the brutal campaign against the US and its Iraqi allies.

At Washington's insistence, Iraq's interim constitution, the Transitional Administrative Law (TAL), laid down an August 15th deadline for the submission of the permanent constitution. This gave the unrepresentative commission only 3½ months to accomplish this monumental task. The TAL also specified two readings, two days apart ahead of the vote. If the deadline passed, parliament was to be dissolved and new elections called. But the deadline was extended for a week and deal-making was taken over by President Jalal Talabani, a Kurd, and Abdel Aziz Hakim, a Shia cleric.

A provisional document with some blank spaces was presented to the assembly just before midnight on August 22nd. But instead of adhering to the TAL, a further three-day extension was given.

Prof Juan Cole, an expert on Iraq at the University of Michigan, argues that the executive and legislature combined to stage a "coup." He says this reveals that in Iraq there is "no rule of law," "no pretence of constitutional procedure," and no checks on the executive or the legislature.

The Shias and Kurds are, apparently, interested in observing democratic forms only as means to dictate terms to other communities. The United Iraqi Alliance, a loose Shia grouping dominated by the Supreme Council for the Islamic Revolution in Iraq (SCIRI) and the Islamic Dawa movement, insist that the "Islamic identity" of the majority of Iraqis must be preserved and the new state should be part of the Islamic world.

The constitution states that Islam is the official religion of the state, Islamic law is "a fundamental source of legislation," and "no law can be adopted which contravenes the essential verities of Islamic law."

In theory, Iraqis are guaranteed the rights to freely practise their religion and to choose religious or civil law to govern marriage, divorce and inheritance. In practice, few Iraqis would be able to make this choice because they would be under intolerable pressure from clerics, tribal leaders, clans and families to submit to clerical and patriarchal diktat which hobbles men and discriminates against women.

To obtain their demands for federalism and decentralisation, Kurds and Shias seeking autonomy have done a deal with religious Shias. The Kurds want to maintain the autonomy they have enjoyed in the three northern provinces since 1991 and to extend the area they have under their control.

Federalist Shias led by SCIRI seek to unite the southern provinces into a super-Shia region with self-rule. Both want their regions to make external economic agreements and conduct their own foreign policies.

Baghdad, the western province of Anbar and areas of mixed population would become a rump-state with little power and no oil.

There is no historical precedent in the Middle East for a decentralised state. Unitary states with strong central governments have always been the norm because of the need for structures to frame communal mosaics. Saudi Arabia and Syria are particularly alarmed by the threat to their own stability posed by Iraqi federalists.

Federalist Kurds and Shias have agreed that oil revenues from existing fields in areas included in Kurdish and Shia "regions" should be transferred to the central government and distributed to the population according to need. But they also demand that income from fields yet to be developed - which could increase production by 40 per cent - should go to the "regions." Such a provision could lead to conflict between oil-rich and oil-poor regions.

Dissident Shias, Sunnis, Christians, secularists, women and religious and ethnic minorities - around 30-35 per cent of Iraqis - are threatening to vote against the constitution in the October 15th referendum.

These elements could very well muster the two-thirds majority in three of Iraq's 18 provinces required to defeat the document.

Some of these groups favour the immediate dissolution of parliament and a new election which could return enough Sunnis and secularists to reduce the power of the Shia-Kurd coalition.

In preparation for fresh popular consultations, Sunni leaders from secular and religious camps, former secular Shia prime minister Iyad Allawi, and firebrand Shia cleric Moqtada al-Sadr have called upon supporters to register to vote. Their aim is to scupper the constitution or to choose a new and more representative national assembly which could be expected to produce an agreed rather than a dictated constitution.