Draft Constitution - Part I...
By Riverbend of Baghdad Burning
Saturday, September 17, 2005
I’ve been reading and re-reading the Iraqi draft constitution since the beginning of September. I decided to ignore the
nagging voice in my head that kept repeating, “A new constitution cannot be legitimate under an occupation!” and also
the one that was saying, “It isn’t legitimate because the government writing it up isn’t legitimate.” I put those
thoughts away and decided to try to view the whole situation as dispassionately as possible.
It was during the online search for the *real* draft constitution that the first problem with the document hit me. There
are, as far as I can tell, three different versions. There are two different Arabic versions and the draft constitution
translated to English in the New York Times a few weeks ago differs from them both. I wish I could understand the
Kurdish version- I wonder if that is different too. The differences aren’t huge- some missing clauses or articles. Then
again, this is a constitution- not a blog… one would think precision is a must.
The constitution is basically in seven parts: Preamble, Chapter 1: Basic Principles, Chapter 2: Rights and Freedoms,
Chapter 3: Federal Authorities, Chapter 4: Powers of the Federal Authorities, Chapter 5: Regional Authorities, and
Chapter 6: Transitional and Final Guidelines.
I scanned the preamble once without bothering to re-read it every time I saw a new version of the constitution. It is
somewhat long and dark and reads more like a political statement than the opening lines of what should be a document
that will go down in history. I later realized that this was a mistake. In the varying versions, the preamble differs in
its opening lines, as freelance journalist Alexander Gainem notes in the following article:
Beginning with the first chapter, Basic Principles, there are several interesting articles. Article (2) seems to be the
biggest concern for journalists and analysts abroad. It states:
Article (2):
1. Islam is the official religion of the state and is a basic source of legislation, and no law that contradicts
its fixed principles and rules may be passed.
2. No law can be passed that contradicts the principles of democracy, or the rights and basic freedoms outlined in
this constitution.
3. The constitution respects the Islamic identity of the majority of the Iraqi people, and guarantees the full
religious rights for all individuals and the freedom of creed and religious practices.
Now, I’m a practicing Muslim female. I believe in the principles and rules of Islam I practice- otherwise I wouldn’t be
practicing them. The problem is not with Islam, the problem is with the dozens of interpretations of Islamic rules and
principles. Islam is like any other religion in that its holy book and various teachings may be interpreted in different
ways. In Iraq we see this firsthand because we have ample example of varying Islamic interpretations from two neighbors-
Iran and Saudi Arabia. Who will decide which religious rules and principles are the ones that shouldn’t be contradicted
by the constitution?
In the old constitution that was being used up until the war, the ‘Temporary Constitution’ of 1970 which came into
implementation on the 16th of July, 1970, the only reference to Islam is in Article (4) which simply states: “ Islam is the religion of the state.” There is nothing about its role in the constitution.
In one version of the constitution printed in some newspapers in August was another potentially problematic article in
the first chapter. It was numbered Article (12). As far as I can tell, it isn’t in the English version of the
constitution- and has possibly been lifted from the final version. Article (12) states (and please excuse the
translation):
Article (12):
The religious Marja’ia is respected for its spiritual role and it is a prominent religious symbol on the national and
Islamic fronts; and the state cannot tamper with its private affairs.
Marja’ia in Arabic means ‘reference’. Basically, this article discusses the ‘religious reference’ which should mean, I
suppose, any religious Marja’ia in Iraq. However, in Iraq, any time the word Marja’ia is used, it is in direct allusion
to the Shia religious figures like Sistani and the other Marja’ia figures in Najaf and Karbala.
Why is it that the state can have no influence on the Marja’ia but there is no clause saying that, in return, the
Marja’ia cannot tamper in matters of state or constitution? The Marja’ia has influence over the lives of millions of
Iraqis (and millions of Muslims worldwide, for that matter). The laws of the Marja’ia for some supersede the laws of
state. For example, if the Marja’ia declares the religiously acceptable marrying age to be 10 and the state declares the
legal age to be 18, won’t that be unconstitutional? The state cannot pass laws that do not agree with the basic
principles and rules of Islam and for millions, the Marja’ia sets those rules.
The most interesting article in Chapter 1, however, was in the first draft of the constitution published on August 22 by
some newspapers but it isn’t in the final draft (at least it’s not in the New York Times English version). It is
numbered Article (16), in the version of the draft constitution it appeared in:
Article (16):
1. It is forbidden for Iraq to be used as a base or corridor for foreign troops.
2. It is forbidden to have foreign military bases in Iraq.
3. The National Assembly can, when necessary, and with a majority of two thirds of its members, allow what is
mentioned in 1 and 2 of this article.
This one is amusing because in the first two parts of the article, foreign troops are forbidden and then in the third,
they’re kind of allowed… well sometimes- when the puppets deem it necessary (to keep them in power). What is worrisome
about this article, on seeing the final version of the draft constitution, is its mysterious disappearance- in spite of
the fact that it leaves a lot of leeway for American bases in Iraq. Now, in the final version of the constitution, there
is nothing about not having foreign troops in the country or foreign bases, at the very least. The ‘now you see it’/
‘now you don’t’ magical effect of this article, especially, reinforces the feeling that this constitution is an
‘occupation constitution’.
When we get to Chapter 2: Rights and Freedoms, the cutting and pasting really begins. Upon first reading it, many of the
articles and clauses sounded very familiar. After a few, it hit me that some of them were taken almost word for word
from the Temporary Constitution of 1970, implemented up until the war (this constitution having been based on the
constitution before it).
Ironically, well over half of the section “Rights and Freedoms” was lifted from the 1970 Temporary Constitution, making
the moral of the story: It’s not the fancy words in the constitution, it’s the government that will actually implement
said words.
The rights of women in the new constitution are quite murky. In one version, printed in the New Sabah newspaper in
August, there is a clause about the state guaranteeing the rights of women in their family, social and economic setting
and equality between men and women in order to allow women to make substantial contributions to the state as long as it
does not contradict the constitution! This article is not in the final draft.
In the final draft of the constitution, women are mentioned as having the right to vote and run for government. The rest
of the references to women are hardly flattering- women are mentioned in context with ‘children and the elderly’. In the
1970 constitution, women aren’t mentioned at all. References are made to “Iraqis” or “citizens”- this does not single
out women as needing special attention or care because they are less capable people needing male guidance or
surveillance.
Example:
Article (30):
1st -- The state guarantees social and health insurance, the basics for a free and honorable life for the individual and
the family -- especially children and women -- and works to protect them from illiteracy, fear and poverty and provides
them with housing and the means to rehabilitate and take care of them. This shall be regulated by law.
Women's rights won't be apparent until the Personal Status Law is defined clearly. Former Iraqi Personal Status Law was
the most advanced in the region. It secured advanced rights for Iraqi women. This, like everything else, is subject to
change and the following article makes this very clear:
Article (39):
Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice,
and that will be organized by law.
Basically, Iraqis will be able to practice their own personal status laws according to religion and sect. This article,
in itself, is a can of worms in the making and only a set of lawyers and a group of Muslim religious scholars will ever
be able to explain the implications properly.
I’ll blog more tomorrow about the issue of federalism, and the coming referendum- this post is already long enough.
ENDS