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July 28, 2005

Iraq: Draft Constitutions Signal Loss Of Rights

by Kathleen Ridolfo

An Iraqi woman holds up a 'Constitution' banner during a recent protest in Baghdad

At least two unofficial versions of Iraq's draft constitution have been leaked to the press in recent days, leaving many to speculate on what the future holds for Iraqi citizens in terms of individual and minority rights.
Iraqis close to the constitutional committee claim that many issues remain unresolved and that many drafts are floating around Baghdad, adding that those drafts do not represent the final version. However, those versions circulating in the media, including a draft bill of rights, have raised questions as to the direction the future Iraqi state will take -- particularly with regard to the role of religion, the status of clerics, federalism, and women's rights.

The State Of Religion

One draft, published in Baghdad daily "Al-Mada" (http://www.almadapaper.com), states that Iraqi citizens, in addition to the rights laid out in the constitution, "shall enjoy the rights stipulated in international treaties, agreements, and international legal documents....so long as these do not contradict Islam."

Another draft, published in the daily "Al-Sabah" (http://www.alsabaah.com), calls for the government to be a parliamentary democracy with a weak executive branch; a single legislative body, elected every four years; and an independent judiciary. Regarding Islam, the draft states: "Islam is the official religion of the state. It is the basic source for legislation. It is forbidden to pass a law that contradicts its fixed rulings."

This status a marked deviation from that afforded Islam as "a source of legislation" under the Transitional Administrative Law (TAL), Iraq's interim constitution written by the Coalition Provisional Authority (CPA) in Iraq ahead of the 2004 transfer of power (http://www.rferl.org/specials/iraqcrisis).

The stipulation that it is "forbidden to pass a law that contradicts [Islam's] fixed rulings" raises questions as to how the future parliament might go about considering the entire body of Islamic jurisprudence when drafting laws and has already provoked controversy. Iraqi lawyer and journalist Sattar al-Dulaymi told RFE/RL's Radio Free Iraq (RFI) in an interview broadcast on 25 July that the "Al-Sabah" draft "if approved, would be a day of national mourning over common freedoms." "Islamic law does not speak about rights. Islamic law is a system of orders and prohibitions. For this reason, I cannot speak about rights. All the new constitution says is that all freedoms and rights are performed in accordance with the law.... We will find ourselves asking: What is allowed? It will not be the other way around.... Islamic law in these affairs is, strictly speaking, an ideological system sufficient just for oppressing a human, wiping off and in the end erasing his or her humaneness."


The "Al-Sabah" drafts also indicates that many rights affecting women under the personal status law will be relegated to the jurisdiction of Islamic Shari'a courts instead of civil courts, which have presided over such issues -- including inheritance, marriage, and divorce -- since 1959. Another provision set out in both the "Al-Sabah" and "Al-Mada" drafts calls for a 25 percent quota for women in the National Assembly -- but only for eight years, or two election cycles.

"We have laid down a formulation that women have equal rights and duties as men in official and political affairs," drafting-committee member Jawad al-Maliki told RFI in a 25 July interview. "Yes, there might be some affairs related rather to the personal status where a man has a different position than that of a woman. There is, however, equality in political affairs."

The Elevation Of Women

Al-Maliki claimed that a provision calling for an election quota for women equates to "an implementation of the rights of women." Asked why the quota will only remain in effect for eight years, he said: "We do not want a permanent women's quota to remain in the constitution; we want [to see] that women develop their competencies, that their level is raised, and that they compete with men on the basis of equality." Those drafting the constitution believe that eight years is "sufficient for women to get ready for an equal competition with men," he said. "But if they build on [the supposition that] they will not be ready for the competition, then it is some deficiency for which only the women are responsible. The quota must not be taken for granted. It is no gift or pittance that men give to women."

Parliamentarian Asma al-Musawi rejected al-Maliki's statements the same day in an interview with RFI in which she called for the proportional participation of women to be "anchored by law." She said she would support a limited time frame for such a quota. "But, should it be set after two, three, four, or five [four-year] election terms?" she asked. "This has been stirring discussions among various women's movements. We have to admit anyway that a deadline must be set so that Iraqi society realizes [after the quota is reached] that Iraqi women have their place not only in the kitchen but also in medicine, industry, agriculture, civil engineering, and other areas of science [and technology], and that they are at the same time able to advance to politics." Asked if she thinks that an eight-year quota would be a sufficient, she said: "I maintain that eight years is not sufficient for changing this wrong social concept. I am ready to support those women who demand a prolongation of this period."

The "Al-Sabah" draft also includes a clause granting clerics a special status in society that would allow them to offer guidance "as religious and patriotic symbols." Again, the ambiguity of the document has led many to question the meaning of the clause, and how it would be applied in reality -- particularly in light of the power and influence that Iranian clerics wield over their government.

Moreover, the designation of Iraq's name as "The Islamic Federal Iraqi Republic," in the "Al-Sabah" draft has raised concerns among non-Muslim Iraqis and even Muslim Kurds, who are generally secular in their outlook. Iraqi President Jalal Talabani told Al-Arabiyah television in a 25 July interview that Kurds do not agree with the proposed state name. "We believe that the name should be as it was -- The Republic of Iraq or the Federal Republic of Iraq. If we say "Islamic republic" this will be a violation of the agreement signed" between the Kurds and the Shi'ite-led United Iraqi Alliance following January's national elections (see "RFE/RL Iraq Report," 14 March 2005).

Talabani predicted, however, that the name will not become a sticking point, "because we all agree with the other party [Shi'ite Arabs] that the constitution should be based on the Transitional Administrative Law. In this law we all agreed that we do not want an Islamic regime in Iraq, but a parliamentary, pluralistic, federal, and democratic regime. Proposing an Islamic name for the republic would be a violation of the agreement reached."

Regional Power

Perhaps the most contentious issue will revolve around federalism and the distribution of power from the center to the regions. The draft published in "Al-Sabah" states that any two governorates could form a region. It also places no limit on the number of governorates that could belong to a given region.

By contrast, the TAL states: "Any group of no more than three governorates outside the Kurdistan region, with the exception of Baghdad and Kirkuk, shall have the right to form regions from amongst themselves." According to latimes.com, some Shi'ites hope to use the provision to unite the nine Shi'ite-populated governorates south of Baghdad into a Shi'ite mega-state within Iraq. Such a move could lead to a further fragmentation of the country along sectarian lines. It could also have enormous consequences on the distribution of resources in Iraq, as each region would be financed through a "fixed share of natural resources."

Another provision in the "Al-Sabah" draft grants regions the power to make agreements with neighboring states, as long as those agreements do not contravene Iraqi law. The provision appeals to Shi'ites, many of whom seek to strengthen ties to Iran, but would not be supported by Sunni Arabs for that very reason. Kurds would also support the provision since they have been calling in the Kurdistan Regional Government's constitution for the power to make agreements with foreign states.


Related Stories:

Radio Free Iraq Interviews Iraqi Women's Activist

Iraq: Interim Constitution Mixes South Africa, Eastern Europe, And A Little 'Kojak'
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