April 2004

Views expressed are those of the authors, not necessarily of the AFSC.

Interim Iraqi Constitution: Blueprint for War?

Phyllis Bennis is a Fellow of the Institute for Policy Studies. A longer version of this piece is available at www.ips-dc.org/ .

The signing of the interim Iraqi "constitution" by the Governing Council represents a significant step in US efforts to legitimize its invasion and occupation of Iraq. By achieving the codification in a US-supervised process of an ostensibly "Iraqi" legal document, the US as occupying power is hoping that its planned June 30, 2004 "transfer of power" will be accepted globally as the "restoration of sovereignty to Iraq." In fact, that "transfer of power" will not end the US occupation, will not lead to the withdrawal of US troops, and will not result in any real sovereignty for Iraq.

The new Iraqi constitution was drafted under US supervision by a body hand-chosen by the US military occupation authorities, and subject to final approval by the US proconsul, Paul Bremer. Its acceptance by the Iraqi population remains uncertain; its ability to actually set the terms for laws to govern the country during the interim period after June 30 remains unknown; its relevance to any truly independent government created after the interim period remains in doubt. The constitution itself acknowledges its irrelevance, as it recognizes that all "laws, regulations, orders, and directives" issued by the US occupation authorities will remain in force.

The constitution calls for a federal system of government, but leaves vague what powers remain with the national government and what devolves to the regions. Also, despite language to the contrary, the sectors are almost certain to be determined by Iraqis' ethnic and religious identity. The constitution, for example, would give Kurds, who represent about 20% of the population, a veto over acceptance of the future permanent constitution, since Kurds constitute the majority in three provinces, and the interim constitution insures that a law, or permanent constitution, would fail if it is opposed by a majority of people in at least three provinces. It is not at all clear that most Iraqis support the kind of federal system imposed in the constitution.

The new document does not address crucial questions even for the interim period itself. It does not identify the means of choosing the new interim government beyond "deliberations and consultations." It leaves undefined the future legality and power of sectarian militias that currently exist in a legal vacuum. The language states that militias and armed factions outside of the to-be-created Transitional Government "are prohibited, except as provided by federal law," implying that a law drafted in the future could recognize these militias after all. Plus, the Kurdish government will also "retain regional control over police forces and internal security," implying that the Kurdish pesh merga could remain a permanent force independent of the central Iraqi government.

The constitution asserts a set of individual political rights, as well as economic and social rights. Those rights include freedom of speech and association, assembly, religion, travel, the right to demonstrate and strike, access to the courts, open trials, and the presumption of innocence. There are prohibitions against unlawful arrest, slavery, torture, and trying civilians before a military court. However, the prohibition on establishing "special or exceptional courts" is already undermined by the special court established to try Saddam Hussein and other accused war criminals.

In terms of economic and social rights, the constitution includes "the right to security, education, health care, and social security," and states that the government agencies "within the limits of their resources" shall strive to provide prosperity and employment opportunities to the region. The text calls for a "goal of having women constitute no less than one-quarter of the members of the National Assembly" that will be selected to draft the final constitution, and states that, "All Iraqis are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion, or origin, and they are equal before the law."

While the US has launched a major propaganda campaign regarding the "unprecedented in the Arab world" nature of these guarantees, in fact a number of Arab states actually have similar constitutional rights. The problem comes, as is the case in the US, Europe and elsewhere, not so much in the written law as in its implementation. In this regard, Iraq is unlikely to be very different.

The relationship between religious law and individual liberty remains unclear. Islam is to be relied on as "a source" for Iraqi laws, and the constitution states that no law may contradict either Islamic law or the guarantees of individual rights. This was a compromise between those urging that Islam be regarded as "the source," implying that Islamic shari'a law should be the sole basis for new laws, and those, especially women, concerned that Islamic law would undermine the constitution's individual rights. Islam was also identified as the state religion of Iraq (similar to most Arab constitutions). US officials, including Paul Bremer, had already announced they would veto any constitution that in their view would make Iraq an "Islamic state."

The constitution describes only a vague process to select the new transitional government to which the US will "transfer power" on June 30th. It is to be chosen through "a process of extensive deliberations and consultations with cross-sections of the Iraqi people conducted by the Governing Council and the Coalition Provisional Authority and possibly in consultation with the United Nations."

Since the constitution says nothing about how the interim government will actually be selected, the unspoken understanding is that the Governing Council, perhaps enlarged by additional US-selected individuals, perhaps in its current form, will remain the center of Iraqi authority. As a result, the United Nations and others have suggested that the interim government operate with a very narrow mandate, essentially "keeping the lights on and paying the bills of the street-sweepers." Specifically, the suggestion was that the interim government make no decisions regarding major economic or foreign policy issues.

However, the constitution as drafted provides no limits on what issues the interim government, in whatever form it takes, may decide, including continuing the US-initiated privatization policies, negotiating major replacement oil contracts, and most significantly signing a Status of Forces Agreement with the US to provide an Iraqi "invitation" to the more than 100,000 US troops who will remain in Iraq.

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