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Iraq: Devil In The Constitutional Details

A promotional poster for the constitution Iraq's National Assembly accepted an unfinished draft constitution on 22 August and voted to allow drafters three additional days to work out the remaining details of the draft before the assembly weighs in on the document, RFE/RL's Radio Free Iraq (RFI) reported on 23 August.

There was wide media speculation over the cause of the delay. Western media cited both Kurdish and Shi'ite leaders as saying the Sunnis needed more time to negotiate on the draft. Rumors also circulated around the Baghdad Convention Center -- where the National Assembly meets -- that the Kurds objected to the draft at the last minute after Shi'ite drafters changed the language of some previously agreed-upon clauses. Meanwhile, Sunni leaders speculated that clauses they had agreed to might have been changed in the final minutes before the parliament convened. The official reason stated by parliamentary speaker Hajim al-Hasani at the late night parliamentary session was that all parties needed some additional time to settle outstanding issues.

Sunni Concerns

What remains clear, however, is that Shi'ite and Kurdish leaders presented the draft to the parliament without the long sought after Sunni consensus they claimed to have wanted so much. Shi'ite parliamentarians now say that should an agreement not be reached during the three-day extension, they will submit the draft to parliament nonetheless, and let the parliament issue a decision on whether the draft is put to a referendum in October. Since the Kurds and Shi'a together form a majority in the parliament, it is almost certain that the draft would go to referendum with or without the Sunnis on board.

The consequences of such a move would likely be a setback for democratic development, as the Sunnis, who form a majority in at least three of Iraq's 18 governorates, could boycott the document, forcing a new government to convene along with a new drafting process. A forced referendum could also further incite Sunni insurgents in Iraq, leading to further instability.

Sunni leaders, speaking to the media before and after the draft was released, confirmed that a number of outstanding issues remained, and claimed they were shut out of much of the past week's negotiations. One Sunni delegate, Iraqi Islamic Party leader Tariq al-Hashimi, said that he did not have time to review the final version of the draft that was presented to the National Assembly, RFI reported. "We could not basically confirm whether the amendments we had agreed on this morning were incorporated in the final draft or whether this draft is still repeating the same enactments that had been presented [earlier] today or yesterday. Therefore, it is difficult for us to give a realistic evaluation on this draft," al-Hashimi said.

Al-Hashimi told reporters at a 23 August press briefing broadcast on Al-Jazeera that he still has not seen a copy of the "final draft." He asserted that a copy of the constitution published in "Al-Sabah" newspaper was not the last version that he saw. Al-Hashimi made it clear that his party rejected the decision to submit the draft to the assembly, calling it a "flagrant violation of the principle of concordance."

The Iraqi Islamic Party also issued a statement to the press at the briefing, which said in part: "Unless the current wording of the clauses of the constitution are revised in a manner that is in line with the supreme interests of the homeland, ensures the unity of Iraqis, and achieves justice for all, then the draft constitution would be completely rejected."

Confusion Over Changes

Meanwhile, constitution-drafting committee chairman and Shi'ite leader Humam Hammudi expressed optimism over the draft, and told reporters that the text will not be amended in the next three days, RFI reported on 23 August. "More dialogue means more assurances to the others, giving more guarantees and explanations, but it does not mean changes in either of the headings or articles of the constitution," he said.

However, government spokesman Laith Kubba told reporters in Baghdad on 23 August that some provisions could be amended, saying: "The draft presented will be more or less the working draft with the possibility of changing or amending the three articles concerning ownership of natural resources, powers of the presidency, and perhaps a reference to the Ba'ath Party or something like that. Apart from these, this is the best they could come up with," RFI reported.

Referring to outstanding issues, Hammudi told reporters: "As you know, it is impossible to convince or satisfy all parties in everything they want but a lot of what they wanted has been realized in this constitution. We hope that this constitution will be a real step toward stability. God willing, each Iraqi will find a part of himself or herself in this constitution, whether it is a recognition of his or her sufferings, hopes, or the guarantee of preserving his or her rights, freedoms, security, and political, economic, and private future."

Kurdish Response

Kurdish leaders have commented little on the draft since it was presented to parliament on 22 August. Kurdistan Regional President Mas'ud Barzani told the Italian daily "La Repubblica" in an interview published on 22 August that Kurds would not accept an Islamist state. "As I said to those who are engaged in drafting Iraq's new constitution in Baghdad, and to the 111 members of the Kurdistan Regional Parliament, we categorically reject a state that is based on Islamist principles," Barzani said.

Nasrallah Surchi, an Iraqi parliamentarian from the Kurdistan Coalition List, told RFI on 23 August: "Regarding the final copy of the constitution, I can tell you that it implements the ambitions of the Kurdish people from some 60 to 65 percent. This is as far as public opinion is concerned. As for the leaderships [of the two major Kurdish parties], maybe they consider it more than 90 [percent]. But the importance is public [opinion], and the public sees that the ambitions of the Kurdish people have not been mentioned" in the draft.

Surchi pointed to a Kurdish call for a paragraph in the constitution that addresses the right of self-determination, saying it was very important but was ultimately not mentioned "with the exception of the note on facultative unity with Iraq," adding: "It remains a question for the future whether the thoughts on [the right for] self-determination will be restored or not. Another important point is: we wish, regarding the public, that they would decide [well] on the referendum. We still do not know whether they will approve [the draft] and let it pass. It is a question of the two-thirds of votes in the governorates of Kurdistan. We still do not know whether they will refuse [the draft] or not. I do not know. This remains a question of time."

The Kurdish position as to Article 116 of the draft published in "Al-Sabah" remains unclear. According to the newspaper, the article says that regional councils or assemblies would be responsible for drafting the region's constitution and for issuing laws "which must not contradict this constitution and Iraq's central laws," meaning that Kurds would be held to the provision that no law passed in Kurdistan could contradict the tenets of Islam.


While the constitution draft published in "Al-Sabah" includes provisions for women, it may not go far enough to meet the demands of women's rights activists and secularists opposed to the role of Islam. It appears that there are only three provisions for women specifically outlined in the draft.

The preamble to the constitution states it is concerned "with women and their rights." Article 30, Section 1 calls on the state to provide individuals and the family -- especially women and children -- with health care and social security, and with basic support for living decent lives, including an appropriate income and appropriate housing. Article 151 states: No less than 25 percent of "Council of Representatives" seats go to women.

Read a copy of the constitution published in the "Al-Sabah" newspaper.

See also:

Leaders Struggle With Constitutional Crisis Over Federalism

Government Spokesman, Drafting Committee Members Discuss Constitution Negotiations