Assembly faces 18 difficult steps
By Sami Moubayed

The mood is tense among the 71 members of the constitutional assembly attempting to draft a new constitution for Iraq before an August 15 deadline. A series of stumbling blocks has delayed the work of the assembled politicians, prime among the obstacles being religion and federalism.

In all, 18 unresolved points are being discussed by representatives of the country's Shi'ites, Sunnis and Kurds, who have been debating for three months already. If they succeed in coming up with a constitution, parliament will ratify it, and it will then be submitted for a referendum two months later, in mid-October. If voters approve, new elections will then be held by mid-December.

Success would also mean that the US could start to withdraw some of its 140,000 troops by early 2006, and Iraqi Prime Minister Ibrahim Jaafari and US President George W Bush would be able to tell the world that democracy, rather than terrorism, in post-Saddam Hussein Iraq, worked after all.

If the constitutional assembly fails, according to the interim Iraqi constitution (Transitional Administrative Law - TAL), then Jaafari would resign, something that many parties involved, including the Americans, do not want to happen.

Failure of this crucial step in creating a democratic Iraq would only fuel insurgents, giving them more reason to create havoc in Iraq and undermine the new leaders of Baghdad and their sponsors in Washington. A last measure would be getting three-quarters of parliament to amend the TAL, to avoid Jaafari's resignation in the event that the assembly failed to meet the August 15 deadline.

Among the unresolved points are the following:

1) The name of Iraq. Currently, three options are on the table, two of them proposed to show that this new Iraq is different, even in name, from the one that existed under Saddam. The Sunnis want it to be called "The Republic of Iraq" (Jumhuriyyat al-Iraq). The Kurds want to name it "The Federal Republic of Iraq" (al-Jumhuriyya al-Iraq al-Itihadi). The Shi'ites want it to become "Islamic Federal Republic of Iraq" (al-Jumhuriyya al-Iraqiyya al-Itihadiyya al-Islamiyya). The Sunnis are sticking in principal to the name that existed since the revolution of 1958, which toppled the monarchial rule of what was once known as the Hashemite Kingdom of Iraq. The Kurds insist on referring to a federation, since their target is maintaining an autonomous region in Kurdistan. The Shi'ites want an Iran-style theocracy, explaining why they chose such a name for Iraq. Most probably the chosen name will become al-Jumhuriyya al-Iraqiyya (The Iraqi Republic) because it minimizes division, representing everyone and giving no dominance to one party over the other.

2) Religion. Some parties want Islam to be the source of all legislation in Iraq while others want Islam to be "one of the sources" and not "the source" of legislation in Iraq. A third party does not want Islam, or any religion, to be the driver behind law-making in the new Iraq. The first option is to create a constitutional clause specifying religion saying: "Islam is the religion of the state and the source of all legislation. It is inappropriate to create any law that contradicts with the principals of Islam." The second option reads: "Islam is a main source of legislation (not the source) and it is inappropriate to create any law that contradicts with its principals." The third option reads: "Religion is the main source of legislation and it is inappropriate to create any law that contradicts with its principals. This constitution guarantees the Islamic identity of Iraqi citizens, whose majority are Shi'ites and Sunnis." The Shi'ites, who are led by clerics like the Grand Ayatollah Ali al-Sistani and Abd al-Aziz al-Hakim, leader of the Supreme Council for the Islamic Revolution of Iraq, want a Iran-style system and insist that Islam be the only and main source of government.

This topic has received much attention from the Western and Arabic press. The Kurds, who are mainly a non-religious political group, favor the current wording of the TAL, which says that Islam should be "a source" of legislation and not "the source" of legislation in Iraq. Their claim is supported by secular politicians and female activists, who fear that applying the strict laws of Sharia (Islamic law) to government will hamper their daily lives, freedom and political rights. If the clerics overtake parliament, these women argue, or control the judiciary in the years to come, they would kill the women's emancipation movement in Iraq.

Under Islamic law, for example, women inherit less than men and are required to wear headscarves. Practices that these women oppose, such as polygamy and arranged marriages, will become more common. A prime concern is that divorced women would not be permitted to keep custody of their male children beyond the age of two, while female children cannot be kept with their divorced mothers beyond the age of seven. This movement for women's rights is spearheaded by Minister of Women's Affairs Azhar al-Shakley who has petitioned the constitutional assembly to make women's rights a priority in drafting the new legal document for Iraq. Other women lobbying for women's rights, and calling on the assembly not to make Islam "the source" of religion in Iraq, are Ahlam Letta, a professor of law, Pascale Warda, of the Assyrian Women's Union in Iraq, and Safia Suhayl, Iraq's ambassador to Egypt.

These women argue that if Islamic law is applied, it would kill any provisions for gender-equality in the new constitution since in several cases, such as inheritance, women are not equal to men according to Islamic law. These women have not forgotten that Iraq was the first country in the entire East to grant women the right to vote, as early as 1948. The second country in this domain was Syria, which did the same in 1949. Women enjoyed many rights under the monarchy (1921-1958) and under the consecutive military regimes that began in 1958. They flourished during the heyday of liberalism in the 1960s, and were treated as equals under Saddam. Only when Saddam fell in 2003 did they begin to lose power as the Islamists controlled the Iraqi street, abducting, beating and harassing women activists. Many of the liberal women, including Christians, are now forced to wear headscarves in the streets to avoid recognition by the Islamic fanatics. According to TAL, one-quarter of the Iraqi National Assembly should be women, and women activists are wishing to increase it to 40%. They also want it to apply not only to parliament, but also to all sectors of government office.

While Islamic law will almost certainly be mentioned in the constitution, due to the strong lobbying of the Shi'ites, it is yet to be seen if this mention is going to be ceremonial, or tangible in the political life of Iraq. It all depends on who will be the ones guarding Islamic law. Will it be seculars like Ahmad Chalabi and Iyad Allawi, or leaders of Islamic political parties like Jaafari? This is where parliament becomes important. If parliament is packed with Islamists and Islamic law is mentioned in the constitution, Iraq could easily be transformed into another Iran. Yet a counter-argument would be that even if Islam is mentioned as "a source" of legislation, there would be many loopholes through which the Islamists could make their way into the decision-making process. They can become judges on the constitutional court, for example, and impose their will on the judiciary.

3) Composition of the Iraqi people. Again, this topic creates agitation between Kurds on one front, and Arabs (Shi'ites and Sunnis) on the other. The first option for dealing with the composition of the Iraqi people reads: "The Iraqi people are composed of two main nationalisms, Arab and Kurdish." This statement also recognizes that smaller communities exist in Iraq. The second option reads the same as the first, but makes specific reference to all the minor groups and communities in Iraq. "Iraqi people consist of two major races; Arab and Kurd, in addition to Turkmani, Chaldean, Assyrian, Suryani, Shabak, Persian, in addition to Yezidis and Sabaen Mandaen."

The third phrase is more vague, which pleases some and angers many by not specifically referring to any of the ethnic groups in Iraq: "The Iraqi people are composed of different nationalisms, religions and sects."

4) Language. The Arabs, who are a majority, want to keep Arabic as the only official language of Iraq. The Kurds want to add Kurdish to Arabic. The Kurdish statement reads: "The Arabic language and the Kurdish language are the two official languages of Iraq." The Arabic proposal reads: "Arabic is the official language of Iraq. The Kurdish language, in addition to Arabic, is the official language in Kurdistan."

5) The identity of Iraq. This is a major obstacle, with the Arabs seeing Iraq as part of the greater Arab homeland, the Kurds seeing it as a part of the greater Kurdish homeland, and the Shi'ites seeing it as part of the greater Islamic community. The Sunnis favor the wording: "Iraq is a founding member of the Arab League." Another option is: "Iraq is part of its Arab and Islamic surrounding." The third is: "Iraq is a country with many nationalisms and the Iraqi people are an inseparable part of the Arab World." The final option, which is most likely to surface, suggests that no identity be mentioned for the new Iraq that is being created.

6) Vice presidents. Of lesser importance, the assembled leaders have not decided whether to specify that the president of the republic should have one deputy, two deputies or no deputies.

7) Ministers. Another topic of lesser importance, the Iraqis are deciding whether cabinet ministers can also be parliamentary deputies, or whether it should be illegal for a politician to hold dual office as a deputy and minister simultaneously.

8) Natural Wealth. Again, this creates problems, especially for the Kurds, who are demanding autonomy over Kirkuk, which is essentially an oilfield. To do that, they have been supporting mass Kurdish migration to Kirkuk, which today is occupied by a combination of Kurds, Sunnis and Shi'ites. The first draft for natural wealth reads that "Natural wealth is the property of the province (where it is found). The province administers them and gives a share to the federal government." This, for obvious reasons, is the Kurdish draft. The second option reads: "Natural wealth is the property of the Iraqi people and they are administered by the federal government. A portion of natural wealth is allocated for the province in which this natural wealth is found." The third proposal reads: "The government is responsible for all natural resources, in coordination with the province in which it was found. A portion is allocated to the province (by the government)."

9) Union. The Kurds favor including a statement that reads: "Union (with the rest of Iraq) is optional" while the Shi'ites and Sunnis want the statement to emphasize the unity of Iraq's land and people. The Kurds will not abandon the independence they achieved, with the help of the US, in 1991. If their autonomy is maintained in the north, this would enrage the Shi'ites, who are already demanding autonomy for themselves in the south. The Sunnis, stuck in the middle, are opposed to both solutions, claiming that if autonomy is given to the Kurds and Shi'ites, they the Sunnis would be left with "the sands of Anbar", in reference to the largely desert Sunni province in the west that unlike the Kurdish north or Shiite south, has little oil.

If the Kurds and Shi'ites hoard the country's oil, the Sunnis fear that this would impoverish them, ending the prosperity they enjoyed during the 30 years of Saddam's rule. While the Sunnis believe that autonomy in Kurdistan is a fact that cannot be ignored and that changing it would be fighting history, they are opposed to giving the Shi'ites autonomy in the south. They simply do not want to decentralize the rest of Iraq. Had the Sunnis been foolish, they could have accepted giving the north to the Kurds, the south to the Shi'ites and kept central Iraq for themselves. The Sunnis, who are among the wisest in Iraq these days, are not joining the federalism trend and demanding autonomy for themselves in central Iraq. They still perceive Iraq as one nation, part of the greater Arab World. The Sunnis, who are Arab and Iraqi nationalists at heart, refuse to view themselves in small sub-national terms and cannot imagine themselves as part of anything but the "greater" Iraq that was created by King Faysal I in the early 1920s.

10) The presidency. One party wants the president to be the ultimate executive power in Iraq, in addition to being commander-in-chief of the Iraqi army. This is backed by the Kurds, who have their eyes set on permanent office at the presidency, occupied currently by the veteran Kurdish statesman Jalal Talbani. The Sunnis, who dominated leadership posts since the early 1920s and have lost that status since 2003, also want a powerful president - only, that is, if the presidency is returned to them. The other parties, mainly the Shi'ites, are arguing for a ceremonial president, whereas executive powers are vested in the prime minister, as is the case in Israel, for example. Current premier Jaafari is a Shi'ite, as all the upcoming premiers in post-Saddam Iraq are going to be.

11) Dual nationality. Some are arguing that dual nationality should be prohibited, especially for officials in the government. This is being vetoed by many politicians who were long-time exiles under Saddam, and who returned to Iraq in 2003 with passports from Syria, Iran, Saudi Arabia, the US and various European countries.

12) Matters of personal status. There are two options. One calls for the creation of a common law for personal matters, to apply to Iraqis of all religions. The other option calls for creating particular laws in each community, based on its religion and needs, to govern matters of personal status, such as divorce, inheritance and other issues that affect day-to-day life. This option means, more or less, a religious-freedom provision in the constitution, which says that every family can go along with their lives according to laws of their religion or sect, with full protection from the state. For example, a Shi'ite wanting to settle a matter in court will take his case to a Shi'ite court, and not to a civil court governed by civil law. To date, matters of personal status have been handled by a law, passed under president Abd al-Karim Qasim in 1959, which basically takes Islamic law and molds it - very progressively - into a semi-secular law, based on religion, but legislated by the state.

Another stumbling bloc facing the constitutional assembly is the status of the peshmerga, the militia of the Kurds. This month, Kurdistan President Masoud al-Barazani said that he accepted integrating the peshmerga into the Iraqi National Army, conditioning, however, that it served only in Kurdistan and not in the rest of Iraq. The duty of the Kurdish forces in the Iraqi army would be strictly to protect Kurdistan.

Shi'ite leader Hakim and Jaafari (also a Shi'ite) have curtly refused Barazani's proposal, claiming that this is simple window-dressing to keep the peshmerga alive. Whereas in the new Iraq that is emerging, no community should be permitted to maintain its own militia. Military power, they told him, should be and will be monopolized by the government. Ghafour Makhmouri, a Kurdish politician, told the constitutional assembly that Kurdish demands for maintaining the peshmerga, making Kurdish an official language, and taking Kirkuk, were all "red lines that cannot be crossed". He added, "We will not soften them - they are our minimum rights."

An angry Barazani added: "As far as we are concerned, whatever we demand (within Iraq) is less than what we deserve. We have given our blood. The current situation of Kurdistan is the result of the blood of Kurdish boys and girls. No one has been charitable to us. Of course, we are grateful to them for ousting the regime of Saddam Hussein. Nevertheless, while the entire world was behind the Ba'ath regime, we were fighting it (alone)." He added, "We are not carpet sellers. We are patriots and peshmergas. We have sacrificed our blood for the rights of our people."

Barazani believes that the carving up of Iraq, the appointment of a Kurd as president, the making of Kurdish as an official language, and maintaining the independence of Kurdistan, at the expense of Iraq, is not enough reward for his sacrifices during the Saddam era. The selfishness of Barazani, and his insistence to destroy the Iraqi identity of 1921-2003, proves two things. One is simply that the years to come will be more difficult than anybody imagined. The Kurds do not want to live in Iraq. They do not want to work with the Arabs in creating a new Iraq. They want Kurdistan and do not care much about the future of the rest of Iraqi or the Iraqi people, so long as Kurdistan is maintained.

The Sunnis and Shi'ites, insisting to be good patriots and nationalists, insist on keeping the Kurds as part of the Iraqi national identity and working with them for a new Iraq. The wisdom of the Sunnis and Shi'ites, confronted with the rashness of the Kurds, will make the task of building a new Iraq virtually impossible. At the end of the day, this is a constitution being written by the Shi'ites, who dominate the political process in post-Saddam Iraq and are dominant in the new parliament. These Shi'ites, powerful as they are, are making very important and painful concessions to the Kurds, in fear of having them on the offensive, and courting the Sunnis, in fearing of having them walk out on the constitutional assembly. Jihad al-Khazen, the leading columnist of the London-based al-Hayat newspaper, summed it all up saying: "Iraq, as we knew it, is finished."

Sami Moubayed is a Syrian political analyst.