Sunday, September 25, 2005

Revisionist Constitutionality

The draft constitution for Iraq that has been published in the Western press has been widely reviewed and commented upon by many individuals. There have been ongoing revisions to the constitution. The most recent version was released internally on Sept. 13th. This version has not been disseminated to either Western or Iraqi press or to the Iraqi public. CPT Iraq was sent a copy by a contact in the government. While much of the document is similar and most changes are more in terms of replacing a word or two there are some significant differences.

Perhaps the most dramatic change is the omission of a section of the “Transitional Provisions.”

The published draft reads:
1. “It is forbidden for Iraq to be used as a base or corridor for foreign troops.”2. “It is forbidden to have foreign military bases in Iraq.”
3. “The National Assembly can, when necessary, and with a majority of two-thirds of its members allow events stated in #1 and #2 to take place.”This provision is completely missing from the current unpublished version.

Perhaps a more subtle change is in the “Fundamental Principles” section. In the published draft, Article 2 states: “No law can be passed that contradicts the undisputed rules of Islam.” In the unpublished current version, the article reads, “No law that contradicts the established provisions of Islam may be established.” Now this may be splitting hairs but Iraqis have said that “undisputed” would imply Islamic law that is recognized by both Sunni and Shi’a. The word “established” would imply that law that exists in one branch but not the other would be considered the basis of national law. This could create serious tensions if a Sunni or Shi’a were required to obey a national law that is outside of their particular faith tradition.

Financial issues play a major role in the constitution and there is a significant contradiction in two sections of the unpublished current version. In the “Powers of the Regions” the second clause of Article 117 states, “Regions and governorates shall be allocated an equitable share of the national revenues [as a clarification oil revenue is considered national revenue] sufficient to discharge its responsibilities and duties.” But there is an addition to the unpublished current version in reference to oil and gas revenues that states, “A quota shall be defined for a specific time for affected regions that were deprived in an unfair way by the former régime or later on.” In other words the Kurdish region or a new Shi’a region in the south could get the lion’s share of oil revenues for years while the Sunni central region gets but a pittance.

This document is not available to the people of Iraq at this time (Sept. 24th) and yet they will be asked to go to the polls and vote on it in 23 days. Is this democracy or yet another chapter in the ongoing saga of sectarian and religious divisiveness in the country?

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