Four dilemmas in Iraqi Constitution  

Some members of the committee for drafting the Iraqi constitution from the "Shiite Coalition" slate, who are members of the National Assembly, said that approximately 80% of the Iraqi permanent constitution has been achieved. These statements came after the announcement of including what was called "the Sunni representatives" in the constitution drafting committee.

This matter might be correct, if we considered some phrasing and general legal principles; such as the preamble and the basic principles, relating to the form of the governing system, the flag and national anthem of Iraq, the republic logo and the Arabic and Kurdish languages, the basic rights and freedom, demonstration, the freedom of practicing religious rituals, protecting private property, and the rights of owning property and voting, in addition to the competence of the legislative and executive authorities and stressing the independence of judiciary, the specialized court, the supreme constitutional court, etc.

Among the most prominent and significant issues, which are still suspended and is the subject of discussion and debate, are the fundamental issues, which represent points of disagreement, friction and sensitivity.

The first issue is relating to specifying the identity of Iraq. All former Iraqi constitutions, since the first permanent constitution (the fundamental law), issued in 1925, and through the interim republican constitutions, starting with the constitution of July 27, which was issued after the revolution of July 14, 1958, the national council law in 1963, the general constitution in 1964, the constitution of 1968 and ending with the constitution of 1970, all state that "Iraq is a part of the Arab nation".

All the former constitutions have specified the Arabization of Iraq as the domineering characteristic, which characterized its identity, from a historical prospective. The controversial text, which exists in the state administration code for the interim stage, issued on March 8, 2004, has not come haphazardly. It came after the contempt of Arabization and considering it as a discarded idea, which belongs to the former regime. Furthermore, it has been blamed for all the sins of the former government and all the governments that preceded it, since the establishment of the Iraqi state on August 23, 1921, until the occupation of Iraq on April 9, 2003.

The text contains a lot of confusion and suspicion, when it set the Arabization of Iraq aside and considered "the Arab people in Iraq as an inseparable part of the Arab nation". This text did not define belonging. In addition, it weakens the legal and political commitments of Iraq towards the Arab League and Arab countries, to a great extent. There is a great difference between the first text included in the former Iraqi constitutions and the constitutional text included in the Iraqi state administration code. Despite the fact that Iraq consists of two major races, Arab and Kurd, as stated in the constitution of 1970, and that the Arabs and the Kurds are partners in this country, as stated in the general constitution of 1958, the protection of the other constituents and minorities, in addition to their political, administrative and political rights, should not weaken the Arabization of Iraq, its historical belonging and domineering identity. In addition, it should not degrade it. The Iraqi Arabs should not be responsible for the ill-deeds of the consecutive Iraqi governments, especially the former regime.

The second issue is related to the text, which gave two-thirds of three provinces the right of canceling the constitution. This text, which Kurdish representatives insist on including in the permanent constitution, has provided them with guarantees to prevent the transgression of the central authorities against their national and political rights, as occurred during former regimes. Nevertheless, this text has aroused intense reactions, on behalf of various media, which are participating in the political process or are opposing it. These media have sensed Kurdish "influence" and "privilege", at the expense of others, with regard to the issue of the cancellation of constitution. This sensitivity has also moved to the situation towards the federation and the rights of the Kurdish people.

Despite the fact that the right of the Kurds to receive legal and political guarantees is a legal and just matter, which is in harmony with their ambitions and fulfills their rights, especially after the bitter and cruel experience during their relation with the consecutive Iraqi governments, the former dictatorial inclusive regime, in specific, these guarantees cannot be "uprooted" or "approved" under the pressure of foreign interference and the existence of occupation. A natural peaceful situation, equivalent fraternal relations and an actual partnership between the Arabs and the Kurds can guarantee solving the Kurdish issue in a peaceful and democratic manner, through admitting the rights of the Kurdish people and their right to make decisions regarding their destiny, as they have decided when they have selected the form of optional willing union with Iraqi Arabs, within the framework of a united democratic Iraq (decision of the Kurdistani parliament 1992).

Through free honest elections, the representatives of the Arab and Kurdish people can reach an agreement, later on, with regard to a fundamental strategic long-term solution, within a clear and specified constitutional and legal framework, and not upon confused forms in a more perplexed condition.
The third issue is the relationship between religion and the state. Once more, we return to the six former constitutions, which stated a supreme status for Islam, when they considered it as the religion of the state. Nevertheless, from a linguistic prospective, we can state that Islam represents the prevailing majority of Iraqi citizens, as they represent about 95% of residents. The actual paradox is represented in the situation of the occupation with regard to the relationship of religion with the state, as the American civil ruler, Paul Bremer, has approved the addition of (sections) articles, which arouse future disputes. The state administration code for the interim stage, which was approved by Bremer in March 8, 2004, has stated Islam in four locations, as stated in article 7.

In the first location, the text stated "Islam is the official religion of the state". In the second location, the text stated "Islam is a source of legislation". In the third location, this section confirmed that "no laws, which contradict with the agreed upon Islamic principles, are allowed to be legislated".

Nevertheless, this section added, "or contradict with the principles of democracy and rights, stated in the constitution". In the fourth location, the text stated, "this law respects the Islamic identity of the majority of Iraqi people".

These texts reflect an actual perplexity in drafting and understanding, on the one hand, and in trust, on the other hand. Wouldn't it be enough to state that Islam is the religion of the state, to gain the supreme characteristic?

The call of some identities for transferring these texts to the permanent constitution brings the Iraqi state closer to the concept of the religious state, and consequently differs with the ambitions of many people, who call for a contemporary civil state, which is based on equality, non-discrimination, separating religion from the state, and respecting all beliefs and rituals of the true Islam and other religions.

It was actually a surprise that the American civil ruler (Bremer), and the American administration behind him, approved these confusing texts, not at the level of the conditions at present, but for the future conditions, if not considered as a new mine, which is planted on the road to a real Iraqi democratic state.

A question is posed, immediately and in the future, on behalf of legislators, or judges, or politicians, or laymen: How can we get rid of the writings of the interpreters and explainers in the name of Islam. Despite of the lack of priesthood, some of them are attempting to confiscating the right to speak in the name of Islam and interpreting it. There would be a disagreement, when speaking about sects and references.

Then, what are the principles of Sharia that can be relied on? What if these principles contradicted with the principles of democracy and human rights, who would win then? These are indications, or titles, or preliminary questions on sensitive critical complicated issues in a community, which has just come out from tyranny, continuous wars for 25 years, international siege, seclusion, isolation and the absence of gathering national references, to fall into the uproar of chaos, sectarian pressure and ethnic tension, and most prominently the existence of occupation and the uncontrolled violence in all directions and by all parties.

The fourth issue is the issue of Kirkuk and the federation. This problem is still aggravating under the current temptations. The Kurds are requesting the application of the text, included in article 58 of the interim state administration code, with regard to normalization, removing the aspects of the former era, correcting the demographic structure and the national molding.

Despite the fact that the coming and residing on behalf of some Arabs, in a legal or illegal form (unwillingly or through temptation) has been accompanied with the deportation and displacement of Kurdish and Turkmen residents, or forcing them to change the nationalism, in an abusive manner, away from all humane criteria, as it was the case in decision no.199, issued in March 6, 2001, by the revolution command council, which allowed the non-Arabs to "modify" their nationalism to Arab nationalism, to solving the case through deporting those Arabs to their old residence locations, or the locations of residence of their fathers' and ancestors might arouse new arguments and racial and ethnic disputes, instead of seeking to solve them and searching for possible and reasonable solutions.

The first issue starts with the return of the displaced and exiled to Kirkuk, or compensating them for what they suffered from, of injustice and damages, and searching for the return of their complete rights and property, in addition to giving the comers the optional alternative, without force and through aids and financial compensations, to return to their regions. The return of Kirkuk residents and compensating them for what they suffered from, of injustice and damages is a significant issue. As for the final settlement, it should be based on the international covenants for human rights, the principles of justice and impartiality, respecting the will of residents and executing a transparent just census. In case of the current disputes, we could refer to the census of 1957.

Kirkuk issue has remained as a fundamental postponed dilemma since the statement of March 11, 1970, or the issue of the self government law in 1974, or the Kurdish-governmental negotiations in 1991, or within the opposition meetings in Salah Eddin in 1992, and following meetings, or at agreeing at the form of the interim state administration code in 2004.
I believe that this problem would be faced by the final draft of the constitution and would be one of its major mines. Iraq republic president, Jalal Al Talebani, has addressed a sharp-tongued message to the Prime Minister, Dr. Ibrahim Al Ja'fari, accusing him of delaying the solution of Kirkuk issue, the application of article 58, cashing the necessary sums and achieving the issue of naturalization.

If we considered that the limits, ceiling and competence of the federation is the topic of a hot discussion and debate, then Kirkuk issue would be the mine that might explode it at any time. Any hasty solution would lead to counter consequences, which necessitates wisdom and deliberation on behalf of all parties for a long-term and gradual solution, based on humanitarianism, the Arab- Kurdish-Turkmani-"Kildo-Assyrian" coexistence, removing the traces of the former era, and preventing reactions or revenge or retaliation acts. If such a solution is hard to be achieved at present, under the temptations, pressure and tension, postponement appears to be "the best of the bad solutions"!

Abdel Hussein Sha'ban
Al Hayat