Constitutional Deals
March 02, 2004
New York Post
Amir Taheri
After months of heated debates, Iraq's interim leaders have approved a constitutional draft designed to close decades of tyranny. It will be put to nationwide debate ahead of elections for a constituent assembly that will write the final text of the nation's new constitution.
Until even a week ago, some believed that the Governing Council would be unable to agree on a text. The more pessimistic observers even predicted the council's disintegration. In the West, many Saddam nostalgics hoped the council would fail, thus "proving" that Iraqis can only live under a bloodthirsty despot.
The document is remarkable for a number of reasons. To start with, it is a patchwork of compromises in a region where give-and-take is regarded as a sign of political weakness if not outright dishonor.
In the macho world of Middle Eastern politics, the "strongman" imposes his will by force, giving even the mildest critic no quarter. In a game in which the winner takes all, the most that the losers can hope for is not to be put to the sword, thrown into prison or forced into exile. This is why, with the exception of Turkey, there has never been a genuine coalition government in any Muslim country.
The Iraqi success in agreeing to a draft is all the more meritorious because the compromises that had to be made concerned fundamental issues.
The most hotly debated was the place of Islam in a future Iraqi state. Some members, arguing that the new state should belong to all citizens, opposed any mention of Islam as the state religion. Others campaigned for an Islamic state in which non-Muslim Iraqis would, in effect, become second-class citizens in a system of apartheid based on faith.
The compromise: Islam is mentioned as the religion of the state but will not be used as a means of barring non-Muslim citizens from public office. Nor will the state interfere in personal religious matters, as is the case in many other Muslim countries, notably neighboring Iran.
Some radical secularists have already expressed disappointment at this compromise. In fact, giving the state a right of oversight on matters Islamic will prove good for Iraqi democracy. Under a totally secular system, Islam would be monopolized by the most radical elements that could use it as a political base from which to build a state within the state.
Consider two examples:
First, the shrines at Najaf, Karbala, Kazemiah and Samarra are bound to emerge as magnets for mass pilgrimage for the world's estimated 200 million Shi'ites. Linked with these shrines are thousands of endowments in the form of real estate, farms, industrial units and commercial businesses. Allowed to escape some form of state control, these could develop into a string of mini-empires controlled by the mullahs who could then be tempted into creating a parallel authority, thus weakening the democratic state. Under the compromise, the shrines and the businesses linked with them, worth billions of dollars, could be managed by a ministry in an atmosphere of transparency.
The second example concerns the way Islam is taught in the new democratic Iraq. If the state excludes itself from the process in the name of secularism, it will leave an important space open to groups with extremist ideologies. This has happened in Turkey and Pakistan in recent years, with private madrassas (Islamic schools) monopolizing the teaching of religion under the auspices of radical groups.
At a time when the European Union is leaning towards honoring its "Christian culture" in its proposed new constitution, no one should take the Iraqis to task for acknowledging the religious heritage of 95 percent of their people.
Linked to the issue of Islam as state religion was that of the role that sharia (Islamic law) might play in Iraq's legal system. Some on the Governing Council wanted it declared the sole source of legislation in the new Iraq. This was never a serious proposal but the opening gambit by several parties who used Islam as a weapon against the Ba'athist regime and its supposed socialist ideology.
Under the compromise, the sharia is mentioned as one source of Iraqi law. This is reasonable: There is much in the sharia that reflects centuries of customs, traditions and practices that do not contravene the Universal Declaration of Human Rights of which Iraq was one of the first signatories.
The draft constitution offers yet another important compromise. It allows the two Kurdish enclaves of the north to retain the autonomy that they have enjoyed since 1991. The compromise was designed to avoid a battle between those who want a federal system, patterned on Germany, and those who believe that federalism is inapplicable to Iraq.
This writer supports the latter view. A federation comes into being when two or more existing states come together to form a single one. This is not applicable to Iraq which was put on the map as a unitary state from the start. There is also the need for a strong central authority to distribute the oil revenue and manage the nation's water resources.
Nevertheless, it is impossible to re-impose a highly centralized state. Those Kurds who have enjoyed autonomy for the past 13 years are unlikely to accept any system in which all key decisions are made in Baghdad.
There are aspects of the proposed draft with which it is hard to agree:
* Having both an executive president and a prime minister is a recipe for perpetual fights at the summit of the state. Things could become even more complicated: The draft envisages the appointment of two vice presidents, presumably to represent ethnic and religious minorities, thus encouraging communalism at the highest level.
* The new constitution cannot emphasize both the concept of "Iraqiness" (Uruqa) and encourage ethnic and/or religious sectarianism.
* The decision to impose quotas for women - 25 percent in the parliament and 40 percent in government departments - is not helpful. Added to the quotas for religious and ethnic minorities, these "reserved places for women" could complicate the task of forming an efficient administration with the help of the most qualified Iraqis.
Helping women secure a bigger role in the decision-making process could better be assured by political parties and, later, cabinet ministers, on an informal basis. The parties, for example, could include more women in their electoral lists. More women could also be appointed to key positions such as governorships of provinces, ambassadorships and the management of major state-owned corporations. There is no need for constitutional "charity," so to speak.
The Governing Council has already taken a much more important step towards removing discrimination against women by canceling the law on "identity and personal matters." That infamous law made women subservient to men, in many cases treating them as second-class citizens.
Overall, the Governing Council has come up with a credible draft. That success must be seen as further encouragement to those who believe that, given a chance, most Iraqis can learn the rules of democratic politics. And that, in turn, is a strong argument for holding free and fair elections as soon as possible.
E-mail:
amirtaheri@benadorassociates.com - www.benadorassociates.com
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