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Iraq: Governing Council Solves Some Key Disputes, Postpones Others In Interim Constitution (Part 1)

  • Charles Recknagel

Iraq's U.S.-appointed Governing Council has agreed on an interim constitution. The document, known as the Transitional Administration Law, establishes an operating framework for the sovereign government due to take power by 30 June. RFE/RL looks at some of the issues the document resolves -- and some of those it does not.

Prague, 1 March 2004 (RFE/RL) -- Iraqi Governing Council spokesman Hamid Kifai announced the agreement in Baghdad this morning, speaking with joy and relief after the council ran well over its deadline of midnight on 28 February for finishing the document.

"Finally, the Transitional Administration Law has been passed, unanimously, after intensive discussions for a few days -- in fact, for a few weeks," he said.

The interim constitution -- due to be signed into law on 3 March -- sets the operating framework for the interim sovereign government that is due to take power by 30 June. Among other provisions, it binds the coming government to respect freedom of speech and religion and to maintain civilian control of the military. Those are fundamental guarantees of a civil society that were routinely ignored by the former regime of Saddam Hussein.

“So I think what they will do right now is that they will accept the status quo of the Kurdish self-rule, but they will not define the form of federalism."
But writing the temporary constitution proved highly contentious because it is also the first attempt by Iraqis to resolve many social and political divisions that were suppressed by Hussein's dictatorship. These include differences between Islamists and secularists over the role of Islamic law, the future participation of women in government, and demands by Kurds for substantial autonomy.

Some of these issues have now been resolved by the accord on the interim constitution, while others proved too thorny and have had to be put off. The next chance to take up the postponed issues will come with the writing of Iraq's permanent constitution. Under the U.S. timetable for handing over power, the permanent constitution is to be written before general elections are held sometime next year.

Observers say a major achievement of the Governing Council has been to agree that Islamic law, Shari'a, will be one of several sources for Iraq's legal code. Islamists had pushed for the interim constitution to make Shari'a the sole or, at least, the main source of legislation, while secularists rejected that demand.

In reaching a compromise, the secularists pushed back an earlier resolution by Islamists to revoke Iraq's current law mandating that divorce and inheritance cases be tried in civil courts. The Islamists had proposed that religious courts be set up with jurisdiction over such cases.

Ammar al-Shabandar is the representative in Baghdad for the Iraq Foundation, a U.S.-Iraqi group promoting human rights and democracy. He says most Iraqis will welcome the fact that the interim constitution keeps the current civil law, which grants women equal divorce and inheritance rights as men.

"That law was made during Abdul Karim Qassim's rule, and Abdul Karim Qassim [deposed in 1963] is still very popular with the Iraqis. They think that the law that [he] made is reasonable and protects everybody's rights. And still, even during the past regime [of Saddam Hussein], those who were too religious to follow that law had the option, actually, of following Shari'a by mutual agreement instead of going to a formal institution," al-Shabandar said, adding: "Under the civil-status law, you can actually follow the Shari'a rules without having to establish Shari'a courts. And by the way, [the civil-status law] is basically [founded] on Islamic law, but it is adapted to modern situations."

But if the Governing Council succeeded in firmly mapping out the role of Islamic law in Iraq, it remains unclear whether it had similar success in addressing the question of the participation of women in government.

Intifah Qanbar, a representative of Shi'a council member Ahmad Chalabi, told reporters that the question of women's representation in ruling bodies had not been discussed during the last meeting ahead of today's accord announcement. The last meeting was devoted to wrapping up issues Governing Council members refused to postpone. Women on the Governing Council have called previously for establishing quotas in the constitution that guarantee women a certain number of seats in parliament and other ruling bodies.

Another key issue, the degree of Kurdish self-rule, also appears to have been postponed until the writing of the permanent constitution. The Kurds have demanded extensive autonomy within Iraq under a federal system, including substantial control over regional financial resources -- for example, oil revenues. Other parties in Iraq want to limit federalism to the regional exercise of administrative powers only -- for example, passing local ordinances.

Governing Council spokesman Kifai told the press today that "federalism...has been approved as a form of government." But he said details of the agreement would only be announced on 3 March.

Al-Shabandar says working out the details of federalism and other highly controversial issues was complicated by the fact that all parties in Iraq -- including the United States -- regard the interim constitution as a kind of first draft of the permanent constitution that will follow.

Al-Shabandar predicts that the interim document -- which has not yet been made public -- will stop with recognizing the high-level of self-rule the Kurds now enjoy and leave any constitutional definition of their status for later. "[Top U.S. administrator in Iraq L. Paul] Bremer will veto anything that says the Kurds have federalism because they think any part of this interim constitution will become part of the permanent constitution later. This is one of the fears,” he said. “So I think what they will do right now is that they will accept the status quo of the Kurdish self-rule, but they will not define the form of federalism."

The interim constitution contains some 60 articles. It is not expected to establish any mechanism for selecting the caretaker government that will take power by 30 June.