Prague, 26 April 2004 (RFE/RL) -- When Iraq's U.S.-appointed Governing Council -- after much debate -- approved the country's interim constitution last month, there seemed to be much to cheer about.
The document was widely praised as balancing the needs of Iraq's ethnic and religious communities while affirming the goal of a united Iraqi state. It was also hailed as a modern document, fully in step with wider U.S. hopes for building a model democracy in the Middle East.
The interim constitution will come into force on 30 June along with the expected transfer of sovereignty from the United States to local Iraqis. It will form Iraq's basic law until national elections can be held and a permanent constitution drafted sometime in 2005.
But experts -- while praising the document for its many positive features -- say it also has holes that could fail the country in practice. These weaknesses have become more apparent in recent weeks as continuing violence appears to have hardened sectarian attitudes and damaged the authority of the U.S.-led coalition.
Already some leaders of Iraq's Shi'a community have expressed strong reservations over parts of the document. These include sections giving Iraq's Kurdish minority significant powers, potentially at the expense of the federal state.
"You've got a weak presidency council and I think potentially a weak prime minister and a weak government, and that surely is the last thing that Iraq needs at the present time."
Anthony Harding is a professor of comparative law at London's School of Oriental and African Studies (SOAS). He's worked on constitutions in other parts of the world and has studied the interim Iraqi document in some detail. He told RFE/RL that it may not provide the needed stability under what are certain to be difficult conditions. "Looking at the document in general, it's long on citizens' rights," he said. "It's long on statements of principle. But I think we have to remember that constitutions -- especially in these types of circumstances -- have to provide for stable government."
One major question is who or what will form the new Iraqi government on 30 June. The draft constitution calls for abolishing the Governing Council and replacing it with an interim government comprised of a president, two vice presidents, a prime minister, and a provisional national assembly. This is consistent with preliminary plans by Lakhdar Brahimi, a special UN envoy advising on forming a government.
But Harding said the interim draft may make it too difficult to form a stable government, given Iraq's internal divisions. "There's a difficulty in terms of how governments are going to be constructed and how secure they are going to be in office," he said. "For example, the presidency council has to be unanimous in appointing the prime minister, whose government then has to survive a vote of confidence in the national assembly. If they can't agree on it, then the decision on the prime minister goes to the national assembly itself. And in that case, the prime minister has to have the support of two-thirds of the members of the assembly. That's really quite a tall order."
He contrasted the situation with Afghanistan, for example, where Transitional Administration Chairman Hamid Karzai fought for and won support for a strong presidency with no prime minister. "In the case of Iraq, I think what we've got is pretty much the opposite [of Afghanistan]," he said. "You've got a weak presidency council and I think potentially a weak prime minister and a weak government, and that surely is the last thing that Iraq needs at the present time."
The main task of the interim government will be to prepare for national elections to be held as quickly as possible. But Samuel Issacharoff, a constitutional scholar at New York's Columbia University, said the interim constitution contains little about how these elections are to be conducted. "The one great void in [the interim constitution] is that it does not have an electoral code, so that we do not know how exactly elections for the national assembly will be conducted," he said. "And much depends on the national assembly being able to carry forward the writing of the permanent constitution."
To be sure, no constitution can contain everything. Indeed, constitutions rarely spell out details such as how elections will take place. Still, in the absence of a separate electoral code or even a functioning election commission, it's a potentially dangerous omission.
"[It's not clear, for example] whether there will be districts,” Issacharoff said, or “whether there will be a national proportional representation of all parties who get a threshold and who will be guaranteed representation on that basis [and what that threshold will be]."
Drafters of the text concede that point but say the constitution is, by definition, temporary and will be reworked as necessary to reflect prevailing conditions.