Lawyers Set Constitutional Priorities

Friday, 18 November, 2005

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Talar Nadir

Iraqi legal experts are urging National Assembly members to put political rights and the protection of minorities at the top of their agenda as they prepare to draft the country’s new constitution.

The transitional body has until August 15 to write the constitution, which will replace the Transitional Administration Law, TAL, adopted while the United States-appointed Coalition Provisional Authority was in charge. The document will then be put to a public vote in a referendum October 15.

Lawyer Abdul-Wahib Majid predicts that the final draft of the constitution will follow a moderate path. "[It] will be secular and moderate, not like the tough constitution of Iran and not like the easy-going constitution of Turkey," he said.

Suad Salman Dawood, Basra’s first female attorney, urges those writing the constitution to ensure it guarantees political rights and freedom of expression, and gives Iraqi women “the position they deserve”.

"Women and children are the pillars of society, and they must be taken care of and their rights protected in the constitution,” she said.

Iraqi human rights minister Bakhtiar Amin said his ministry will help guide assembly members in their work, particularly when it comes to meeting international standards for ensuring minority, political and social rights.

Amin expects the new constitution to recognise many international agreements such as the United Nation convention outlawing torture, and the Rome Convention which established the International Criminal Court.

Lawyer Muhammed al-Baithani warned that Iraqis are likely to reject the document unless it addresses the country’s diverse religious and ethnic makeup.

"Then we will have to start from scratch, and there will be a big political vacuum," said al-Baithani.

A majority of voters must approve the draft before new National Assembly elections can be held. The TAL also includes a veto provision that states that two-thirds of the voters in at least three provinces can reject the constitution.

Elsewhere, the lawyers say the constitution must separate the executive, legislative and judicial branches of the government, so they cannot interfere with each other.

The head of Basra’s union of lawyers, Ali al-Kabi, said these basic principles were present in the previous constitution, but were ignored by former president Saddam Hussein.

He stressed the importance of ensuring independence of the country’s courts. "The Iraqi judiciary must… not be subject to interference by any party in the state,” he said, noting that the TAL included such guarantees.

On other matters, the legal experts agreed that the assembly must ensure the army serves the government, and not the other way around.

Some believe federalism is the most pressing issue that will face the assembly, with both the Kurds in the north and the Shias in the south discussing the issue of devolving power to regional level.

"The constitution should include and define the principle of federalism, especially for the southern provinces consisting of Basra, Nassariyah and Amarah," said al-Baithani,

Sairan Taha Ahmed, a law professor at Sulaimaniyah University in the north, said the constitution should guarantee the right of self-determination for the Kurds, who control the three provinces of Dahuk, Sulaimaniyah and Arbil. Those regions fell out of Saddam’s control after the 1991 Gulf War.

“We should work for an independent federalism,” she said. “The boundaries of Kurdistan’s regional authority should be set in every aspect.”

Ahmed went on to say that Kurdish members of the National Assembly are likely to demand a greater percentage of Iraq’s national revenues for their autonomous region. Only 17 per cent of revenues have been set aside for the Kurds, who make up 20 per cent of Iraq’s population.

“We must have the rights of a nation, not a minority,” she said.

The Mosul representative of the Patriotic Union of Kurdistan, one of two ruling parties in the region, said the status of the ethnically-divided city of Kirkuk is likely to be a top issue. Sady Pira said the Kurds will push the National Assembly to implement an article in the TAL that allows Kurds deported from Kirkuk to return to their homes.

But he admitted that the assembly would also have to find a way to compensate the Arabs whom Saddam resettled in Kirkuk in an attempt to alter its ethnic makeup.

“We can’t just kick those people out, but the Kurds have the right to go back to their homes, because they were there first,” he said.

This story has not been bylined because of concerns for the security of IWPR reporters.

Safaal Mansoor, Talar Nadir and Zaineb Naji are IWPR trainee journalists in Iraq.