Judging from the two translations of the text released so far, it’s hard to see how Iraq’s constitution could serve either as a document that unifies the new Iraqi nation or as a clear guide to governance.
The charter is vague to the point of vacuousness in its most basic proclamations. Article 2 reads:
Islam is the official religion of state and a fundamental source for legislation.
(a) No law may contravene the essential verities of Islamic law.
(b) No law may contravene the principles of democracy.
(c) No law may contravene the rights and basic liberties enumerated in this constitution.
Already, we have a contradiction that would befuddle the most probing judicial review (assuming the constitution provided such a thing, which it doesn’t). For women especially, Islamic law itself contravenes the principles of democracy and basic liberties. So, which clause takes precedence?
Much has been made of the assembly’s debate over whether Islam should be declared “the source” of legislation or merely “a source.” But look at how it came out: “a fundamental source”—which, as professor/blogger Juan Cole notes, amounts to pretty much the same thing as “the source.” Cole, who has translated the document himself from a version made available in an Arab publication, also stresses that section (a) refers to “the essential verities of Islamic law“—not, as the commonly used AP version has it, “Islamic standards.” The latter might be open to wide interpretation; “Islamic law,” however, seems to enshrine sharia, which not only denies rights and liberties to women, but also allows religious jurists to question secular legislation. Or does it? The constitution is, at best, ambiguous on this most crucial question.
Article 2 guarantees the Islamic identity of the Iraqi people as well as all other religious rights. Article 39 preserves the right to observe religious rituals—but it also notes that the issue “will be organized by statute.” So, is freedom of religion—any religion—a constitutionally protected civil right or is it a matter to be deferred to legislatures? Things look more ominous still, in light of Articles 13 and 118, which forbid regional or provincial statutes from contravening the laws or constitution of the national government. And what’s the national constitution’s take again? “Islam is the official religion of state and a fundamental source for legislation.”
The Sunnis are up in arms over a section that’s not ambiguous but, rather, all too clear. Article 114 defines a “region” as one or more provinces that choose by referendum to form a region. (A referendum can be called fairly easily: either by one-third of the members in the relevant provincial councils or by one-tenth of the voters in those provinces.) Moreover, two or more regions have the right to create a single, larger region.
Here is the Sunni nightmare in plain black and white: The Kurds are allowed to form a single supra-region in the oil-rich north, the Shiites to form theirs in the oil-rich south, while the Sunnis are left in the oil-dry center.
Article 110 appears to deal with the inequities that may result from this arrangement: “The central government administers oil and gas extracted from current wells, along with governments of the producing regions and provinces, on the condition that revenues are distributed in a way that suits population distribution around the country.”
But take a closer look at the beginning of that sentence: The article applies to oil and gas extracted from “current wells”—not from wells to be tapped in the future. There is also something odd about the assurance that revenues from current wells will be “distributed in a way that suits population distribution.” It would be useful to know if “suits” is a poor translation or a deliberate ambiguity.
Finally, Article 129 states: “The regional government does what is needed to administer the region, especially setting up internal security forces, such as police, security and region guards.” Again, a less deadline-rushed translation might clarify whether this is an innocuous allowance for local police departments and perhaps some equivalents of the national guard—or whether it’s an enshrinement of regional (i.e., ethnic) militias.
There are noble things in this constitution as well. Article 7 forbids racism, terrorism, and ethnic cleansing. Article 35 guarantees “human freedom and dignity.” Article 36 guarantees freedom of expression and freedom of the press. But, again, it’s hard to square these provisions with the rest of the document. There is also the occasional silliness, for instance Article 22, which guarantees all Iraqis the right of employment.
Meanwhile, the constitution (or at least the part that has been released) says nothing about how the country is to be governed. Article 66 states that presidential candidates should be at least 40 years old, Iraqi by birth, the offspring of two Iraqi parents, and that they should “have a good reputation and political experience and be known as honest and faithful to the nation.” Article 75 lays out similar prescriptions for the prime minister. However, no set of duties, powers, and responsibilities are enumerated for either official. (Not even the specified qualifications are mandatory; the articles state only that candidates “should” be 40, Iraqi by birth, and so forth.)
Nor does the document lay out the powers of parliament, the precise division of powers between the central and regional governments, or the existence of a branch that interprets the law.
The assembly has given itself until Thursday to resolve the remaining disputes over this document—a delay that itself violates existing law (which specified that the government dissolve, and new elections be held, if the constitution wasn’t ratified by Aug. 15). As one indication of the situation’s bleakness, it’s a toss-up which course would be worse—that the constitution be turned down or that it be rammed through. Either way, it is not at all clear—with or without this constitution—what kind of government, what kind of nation, this war and this process have wrought.
Update, Aug. 26, 2005: A revised AP translation of the complete constitutional draft, published on the BBC’s Web site Wednesday, indicates that the document is not quite as vague as I suggested in this column (which was written when only excerpts were available). There are descriptions of how the government would work. There is a provision for judicial review. The list of qualifications for presidential candidates is mandatory, not suggestive (the excerpt’s “should” has now been changed to “must”). However, the full text strengthens my argument that the constitution empowers clerics and Islamic law; for instance, the Federal Supreme Court, which rules on the propriety of all federal laws before they are issued, is to be made up of experts in sharia (Islamic law). It also confirms my observations about the nature of regions and the distribution of gas and oil revenue. For more on this, see my column of Aug. 26.