"We the people of Iraq, who in all our forms and groupings undertake to establish our union freely and by choice, to learn yesterday's lessons for tomorrow, and to write down this permanent constitution... "
The comment, in the Preamble, is unexceptionable. Sandwiched between the past and the future, however, is an unpleasant present that cannot be wished away. How does the draft document address it? The tussle over its approval, by acclamation or by voting - to be followed by a national referendum in October - is understandable, more so because its Chapter One cannot be amended and the procedure for amending any other part of the document requires a two-thirds majority followed by a referendum in each case.
The new Iraq is to be democratic, federal and parliamentary with Islam as its official religion and "a basic source of legislation." It is to be multiethnic, multi-religious and multi-sect, and is to have Arabic and Kurdish as its official languages. It is to be a part of the Islamic world and its Arab people are to be a part of the Arab nation.
Chapter Two guarantees rights and freedoms of citizens. These are circumscribed by the continuing work of the National De-Baathification Committee - Articles 145 and 148 (2). Article 25 guarantees the reform of "Iraqi economy according to modern economic bases." Article 39 permits Iraqis "adherence to personal status according to their own religion, sect, belief and choice," thus diluting the progressive Law of Personal Status introduced after the Revolution of 1958. Tribal customs contrary to human rights are, however, forbidden.
The critical issues relate to the shape of the federal structure. It is to be bicameral but the second chamber - Council of Union - is not to be made operational till a later stage. Residual powers are to be with the regions and federal authority is to be restricted to foreign policy, defence, finance, and customs, weights and measures, nationality and naturalisation, post, and broadcast wavelengths, and general census (Article 108).
The ownership of oil resources, and distribution of oil revenues, is addressed specifically in Articles 109 and 110. "Oil and gas is the property of the Iraqi people in all the regions and provinces." The federal government will administer the production of oil and gas from current fields "on the condition that revenues will be distributed fairly in a manner compatible with the demographic distribution all over the country." Furthermore, special quota for specified periods will be given to regions that were deprived of it by the former regime.
The regions are to have their own directly elected presidents and legislatures. They would also have the authority, in regard to matters within their jurisdiction, to amend the implementation of federal laws that come into conflict with regional laws.
The Federal Supreme Court will include judges specialising in Islamic law. It will interpret the constitution, and give ruling in disputes between the federal and regional authorities. Other constitutional bodies will include a human rights commission, an election commission, the Iraqi Central Bank, the media and communications agency, the vigilance commission, and the office of religious endowments.
Principles for the conduct of foreign policy are carefully prescribed in Chapter One itself. "Iraq shall abide by the principles of good neighbourliness and by not intervening in the internal affairs of other countries." It shall seek peaceful resolution of disputes, shall respect international obligations, "shall respect its international commitments regarding non-proliferation, non-development, non-production, and non-use of nuclear, chemical and biological weapons. Associated equipment, material, technologies, and communication systems for use in the development, manufacture, production, and use of such weapons shall be banned." The drafting of this clause - Article 9(10(e) - would have required specialist skills, unlikely to be found among the elected members of the Iraqi assembly.
Some amusing adjustments appear to have been made with regard to the qualifications for high office. The Prime Minister and Ministers need to have university degrees or an equivalent. This, however, does not hold for the President of the republic.
Drafting successes notwithstanding, hard problems of perceptions and interests remain. The issues relating to the city of Kirkuk, to the distribution of oil revenues, and to the place of Sunni Arabs in the new dispensation, can complicate matters considerably. The Kurds who are virtually independent want Kirkuk and 65 per cent of the region's oil revenue. The Shias will compromise on oil revenues since the south is also oil-rich, but not on Kirkuk. The Sunni Arabs, already demonised in the second paragraph of the Preamble, see in a loose federation the disappearance of the Iraqi identity and of their own physical and economic security. The loss of Iraq's Arab identity would tell on the Arab world.
As for the Americans, they seem bent on issuing contradictory statements of denial and affirmation relating to an early withdrawal. Former Senator Gary Hart summed up the real issue in the debate: "History will deal with George W. Bush and the neoconservatives who misled a mighty nation into a flawed war that is draining the finest military in the world ... accumulating staggering deficits ... and weakening America's national security."
The writer is a former Permanent Representative of India to the United Nations and former Vice Chancellor, Aligarh Muslim University. He is presently Distinguished Fellow, Observer Research Foundation, New Delhi.
Source: The Hindu, Chennai, August 26, 2005.
* Views expressed in this article are those of the author and do not necessarily reflect those of Observer Research Foundation.
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