Institute for War and Peace Reporting | Giving Voice, Driving Change

Constitution Blow

Signing of historic document said to have been held up by Shia objection to key clause.
By IWPR staff

Iraq’s political transition appears to have been thrown into disarray, after five members of the Governing Council refused to ratify a transitional constitution that had seemed to be a remarkable compromise between the two most cohesive political groups in the country, religious Shia and the Kurdish parties.


The March 5 signing was reportedly held up by Shia members’ rejection of a clause which would have allowed regional blocs, such as the Kurdish-majority north, to veto the ratification of a permanent constitution.


The Shia also reportedly had concerns about the make-up of the presidency, and the documents’ refusal to spell out who would govern Iraq prior to elections scheduled for early next year.


The audience in the packed Baghdad international conference centre waited for delegates to walk on stage to ratify a document that had been approved by all members of the council in an all-night session four days before. As IWPR went to press, however, the signing had not taken place.


According to council sources, five Shia members of parliament – Ahmed Chalabi of the Iraqi National Congress, Abd al-Aziz al-Hakim of the Supreme Council for Islamic Revolution in Iraq, SCIRI, Ibrahim Jaafari of the Dawa party, and independents Muwafiq al-Rubaie and Mohammed Bahr al-Uloom – refused to sign the document after senior Shia cleric Grand Ayatollah Ali al-Sistani rejected it.


The “Law of Administration of the State of Iraq for the Transitional Period” was approved by Iraq’s 25-member Governing Council in the early morning hours of March 2.


Both Kurds and some Islamists had said that the law is a stopgap measure, and that they would press their full agenda in negotiations over a permanent constitution, scheduled to be approved by October 2005.


According to the original wording, the constitution will go into effect “if a majority of voters in Iraq approve and if two-thirds of the voters in three or more governorates do not reject it” – wording which essentially gives veto power over the constitution to any regional grouping, including the three governorates now under control of the Kurdish Regional Government, KRG, the de facto independent government created in the Kurdish self-rule in northern Iraq after the 1991 Gulf War


“Some of these provinces have only 400,000 or 500,000 people. We cannot have that number of people rejecting a constitution for 25 million people,” SCIRI adviser Hamed al-Bayati was quoted by the Associated Press as saying.


However, the Shia delegates’ refusal to accept this clause may also mean that they envision holding off on key demands during the transitional phase, but will use their status as a majority to insert these demands into the constitution.


Prior to the last-minute dispute, the law had looked to be a surprising concord between Kurds and Shia on two issues that had seemed to divide them – the role of Islam and the nature of federalism.


The law, according to a draft prepared on the evening of March 2, acknowledges the importance of Islamic sharia without according it primacy.


Some conservatives had called for the latter to be enshrined as the main source of legislation. The law does establish Islam as the state religion, but as “a source of legislation” .


No legislation can contradict the “agreed tenets of Islam”, but neither can it conflict with “the principles of democracy” or a bill of civil and political rights including freedom of worship and expression and the “right to privacy”.


Delegates also reached compromise on a second contentious issue, that of federalism.


Although most Iraqi political groupings have long acknowledged that a future constitution should be “federal”, most espoused the so-called “18 governorate solution” that would grant federal rights to Iraq’s existing provinces.


The main Kurdish parties, however, have called for rights to be granted to a federal region of Kurdistan, which they say is a historical and geographical entity rather than an ethnic one.


Even more controversially, they called for it to include the oil-rich region of Kirkuk, and for each region to have control over its natural resources.


Kurds claim that the governorate was majority Kurdish prior to ethnic cleansing carried out by the Baathist regime since the 1970s, and have called for a return of Kurdish refugees to the province prior to determining its final status. The parties have also placed a claim to other areas from which Kurds were expelled.


The law does recognise the KRG as the official government in those territories, and allows it to perform most of the functions that it has until now been fulfilling.


It allows the Kurdish government the right to collect taxes and fees, and to handle “regional control over police forces and internal security”, although it does not specifically provide for integrating Kurdish peshmerga militias into Kurdistan National Guard as many Kurds had demanded.


However, the law does not expand the KRG’s authority outside the pre-war self-rule area – a move which would alarm Turkey as well as many Arab and Turcoman parties in the area.


Kurdish council sources say that Coalition Provisional Authority head Paul Bremer had told them that he would block any expansion of the KRG’s authority, even if other council members approved it.


The law also grants the federal government the right of “managing” natural resources and “distributing” the revenues.


Kurds say that they won support from the Shia for the continuation of this state-within-a-state by allowing governorates, other than Baghdad and Kirkuk, to form themselves into larger regions.


Although the law does not incorporate Kirkuk into Kurdistan, as many Kurds demand, it also explicitly recognises the need to “remedy the injustice caused by the previous regime’s practices in altering the demographic character of certain regions, including Kirkuk”.


It calls for deported or expelled residents of these regions to be restored to their homes, if feasible, or compensated if this is unfeasible.


The law lays out separation of powers.


Legislative authority is to be wielded by a 275-member National Assembly, to be elected no later than January 31, 2005. The electoral law governing the vote “shall be designed to achieve the goal” of having women constitute at least a quarter of the members, although how this will be achieved is not specified.


The assembly will select a “presidency council” of a president and two deputies to “oversee the higher affairs of the country” and to veto key legislation, but a prime minister chosen by the presidency wields direct executive power.


The Shia delegates who refused to ratify the law reportedly wished for the presidency council to contain five members.


An independent judiciary, meanwhile, answers to a higher judicial council, and a federal supreme court will rule on disputes between levels of government and the constitutionality of laws and decrees.


The law did not specify how Iraq would be governed prior to the election of the national assembly, leaving the question aside for a future annex.


According to council sources, the law’s failure to spell out the nature of the pre-election government was another of Sistani’s objections.