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Iraq: U.S. Expert Says Constitutional Process Requires Flexibility By Leaders

  • Nikola Krastev

A key adviser on constitutional reforms in Iraq, New York University Professor Noah Feldman, says crafting a constitution under an accelerated time frame will require flexibility by the country's leaders. Feldman says debates on a new constitution are likely to heat up over the issues of federalism and religious freedoms and rights.

New York, 4 November 2003 (RFE/RL) -- Noah Feldman's vision for Iraq foresees a federal democratic state respecting Islamic values and providing for equal rights to all its citizens -- Muslims and non-Muslims alike.

But getting to that point, Feldman says, will require a consultative process on the constitution that will require flexibility from all sides. It will need to blend Iraq's secular and religious traditions and balance the interests of other varied constituents.

An adviser to Iraqi leaders and an expert on the Muslim world, Feldman is a strong proponent of the view that democracy is viable in the Islamic world. He expounds on this idea in his book "After Jihad: America and the Struggle for Islamic Power."

During a lively discussion with students from New York University on 30 October, Feldman said the U.S.-led coalition running Iraq must ensure the restoration of order and a government that is legitimate, democratic, and capable of running the country:

"So, step one is to reconstitute the Iraqi security forces and fast, probably by calling the Iraqi Army back to barracks. It's a risky thing to do because the Iraqi Army in its history has regularly overthrown the government. So, I'm saying, reconstitute the army, call them back to barracks, and then I am going to describe the whole constitutional process. And it's very possible that what's going to happen at the end of that whole constitutional process, assuming it was successful, the Iraqi Army will say, 'OK, the United States has left, we're taking over the government again,' " Feldman said.

The UN Security Council has called for the Iraqi Governing Council to submit a plan for a constitutional process and elections by 15 December.

Feldman says there are a range of options to pursue in launching the constitutional process. On one end is the idea of holding a national election for a constituent assembly of Iraqis who would be authorized to write a new constitution. He believes this is the best path.

"It would mean that the body selected would be representative, would have a mandate from the people, and would be in a position where its actions would be relatively likely to be accepted by folks out there [in Iraq] and certainly likely to be accepted by the international community. This is the technique that was used in East Timor. It was a technique that was used in a variety of places around the world, and it's sensible enough," Feldman said.

At the other end of the range, he says, is the idea of a selected body of Iraqis -- perhaps chosen by the Iraqi Governing Council. Feldman believes such a body would be open to criticism as politically illegitimate and not representative.

The problems of electing such a constitutional group now, Feldman says, include putting together the mechanisms for such a vote, such as districting and censuses. Holding an election that is safe and protected, he maintains, would take a minimum of a year, and possibly longer. Anything faster, Feldman says, and there is a high probability that the election would not generate representatives or a plausible outcome.

"Furthermore, the mechanism for actually choosing the districts, for example, is exactly the kind of question that the constitutional body should be deciding because the existing districts in the country are designed by the Ba'ath Party to disenfranchise various peoples, including, for example, the Kurds. So Kurds are very concerned that using existing districts would disadvantage them in a national constituent assembly election," Feldman said.

In practice, what we are likely to see is something in between the two, Feldman argues, some combinatory process that involves some selection and some electoral validation. One possible route would be a nomination process emanating from the Iraqi Governing Council, followed by a national referendum approving or disapproving the nominated slate.

Feldman says such a plan can be criticized from both sides but that a way forward needs to be found that does not take another year, during which the security situation could continue to deteriorate.

Feldman says the first major item in the constitutional debate is the question of federalism. It is not because so many people or factions are inclined to it but because the idea of a federal Iraq seems inevitable. It is inevitable, he says, because of the Kurds. Feldman says the Kurds are accustomed to running their own province and they will accept nothing less.

"Most Kurds on the ground actually want to have an independent Kurdistan that is not even part of a federal Iraq. But the leadership, which is very smart and sophisticated and has made every imaginable mistake over the last 50 years, is not going to make the United States angry by declaring an independent Kurdistan. Instead, what they are telling their people is, 'We'll enter a federal Iraq. We'll get as much power for our region as we can. We'll be 'Quebec Plus,' and if the whole country falls apart -- then you'll have your independent Kurdistan,' " Feldman said.

The next major issue will be religion. Federalism, he says, will have a role in this issue because the local laws in the districts and provinces will say how each one wants the issue to be handled. But on the big question, Feldman says -- that is, the issue of religious freedoms and rights -- there is remarkable consensus among those Iraqis who favor the constitutional venue.

"People agree that Iraq should be a democratic state in which clergy has no special say in the government. They agree that there should be religious liberty for everybody -- Muslims and non-Muslims -- because everyone is keenly aware that Iraq is a heterogeneous society with Muslims and non-Muslims and with Muslims of two different denominations. And they furthermore agree that the constitution should guarantee equal rights for all citizens -- men and women, Muslims and non-Muslims. And they also think -- just as strongly as they think those things -- that the constitution of Iraq should recognize Iraq as a state in which Islam is the official religion," Feldman said.

Echoing Feldman's view, a number of senior Islamic clerics in Iraq have repeatedly said there is no incompatibility between a democratic state and one that respects Islamic values.
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