** Milis Nasional Indonesia ppi-india **
http://www.atimes.com/atimes/Middle_East/FC25Ak02.html
March 25, 2004
Fatal flaws in Iraqi constitution
By Phyllis Bennis
(Posted with permission from Foreign Policy in Focus)
The signing of an interim constitution by the Iraqi Governing Council (IGC)
represents a significant step in United States efforts to legitimize its
invasion and occupation of Iraq. By achieving the codification in a
US-supervised process of an ostensibly "Iraqi" legal document, the US as
occupying power is hoping that its planned June 30 "transfer of power" will
be accepted globally as the "restoration of sovereignty to Iraq". In fact,
that "transfer of power" will not end the US occupation, will not lead to
the withdrawal of US troops, and will not result in any real sovereignty for
Iraq. The constitution itself implies recognition of its impotence, as it
recognizes that all "laws, regulations, orders and directives" issued by the
US occupation authorities will remain in force.
The new Iraqi constitution lacks legitimacy
It was drafted under US supervision by a body hand-chosen by the US military
occupation authorities, and subject to final approval by the US proconsul, L
Paul Bremer. Its acceptance by the Iraqi population remains uncertain; its
ability to actually set the terms for laws to govern the country during the
interim period after June 30 remains unknown; its relevance to any truly
independent government created after the interim period remains in doubt. As
a result, any examination of the constitution must include its
legitimacy/illegitimacy, as well as the content of its provisions.
The constitution describes only a vague process to select the new
transitional government to which the US will "transfer power" on June 30. It
is to be chosen through "a process of extensive deliberations and
consultations with cross-sections of the Iraqi people conducted by the
Governing Council and the Coalition Provisional Authority and possibly in
consultation with the United Nations". No method of conducting such
"extensive deliberations" is included, and given the IGC's failure so far to
have engaged in serious, wide-ranging consultations with Iraqi society
regarding their own governance, it is unlikely to change any time soon.
Crucially, the mandated "consultations" are to be conducted equally between
the existing US-appointed IGC and the US occupation authority itself - thus
insuring that the IGC will remain either fully in place or with a
self-selected successor body to replace it. The role of the UN is dismissed
as "perhaps" being included in consultations.
The IGC holds on to power
Since the constitution says nothing about how the interim government will
actually be selected, the unspoken understanding is that the IGC - perhaps
enlarged by additional US-selected individuals, perhaps in its current
form - will remain the center of Iraqi authority. Many current members of
the council have made clear their desire to hold on to power, knowing that
(since most of them spent the past decade or two or three outside of Iraq)
they would be unlikely to win any kind of election. As a result, the UN and
others have suggested that the interim government operate with a very narrow
mandate - essentially "keeping the lights on and paying the bills of the
street-sweepers". Specifically, the suggestion was to bar the interim
government from making decisions regarding major economic or foreign policy
issues. However, the constitution as drafted provides no limits on what
issues the interim government, in whatever form it takes, may decide -
including continuing the US-initiated privatization policies, negotiating
major replacement oil contracts, and most significantly, signing a Status of
Forces Agreement with the US to provide an Iraqi "invitation" to the
100,000+ US troops who will remain in Iraq.
Federal ambitions
The constitution calls for a federal system of government, in which, despite
language to the contrary, the sectors are almost certain to be determined by
Iraqis' ethnic and religious identity. The division of Iraqis into Shi'ite,
Sunni, Kurdish, Turkoman, Assyrian and Christian identities is the basis for
the US-created Iraqi IGC, and is the likely basis of the division of power
within a "federal" Iraqi system. This causes three major problems: 1) There
is no representation for Iraqis who identify first as Iraqi citizens, and
only secondarily as Shi'ite, Kurds, or whatever. 2) The ethnic/religious
quotas assume that all Kurds, Shi'ites, Sunni, Assyrians, or others
represent monolithic political blocs. 3) A system based on ethnic or
religious sectoral interests is inherently unstable, in most cases giving
minority and majority populations too little or too much power, and
undermining national identity as Iraqis. Lebanon's years of confessional
(religiously determined) division and war demonstrates the potential
dangers.
The constitution, for example, would give Kurds, who represent about 20
percent of the population, a veto over acceptance of the future permanent
constitution. This would take place in the context of Kurdish opposition to
any future constitution, since Kurds constitute the majority in three
provinces, and the interim constitution insures that a law, or permanent
constitution, would fail if it is opposed by a majority of people in at
least three provinces.
Along with the problem of forcing a religious or ethnic identity for people
wanting to assert and build a national Iraqi identity instead, it is not at
all clear that most Iraqis support the kind of federal system imposed in the
constitution. There is little indication that any serious effort was made to
consult with large sectors of the Iraqi people before determining such a
drastic framework.
The constitution creates a federal system, but leaves vague what powers
remain with the national government and what devolves to the regions. The
central government is given responsibility for foreign policy, national
security, fiscal and monetary policy, and control of oil and other natural
resources. But there is no limit identified as to what powers a "federal
region" may assert. The Kurdistan Regional Government, the only federal
region identified, is to have broad, yet vaguely defined powers of
self-government: legislative and judicial independence, and the Kurdish
Peshmerga militia to remain in force. The Kurdish government will also
"retain regional control over police forces and internal security", implying
that the Peshmerga could remain a permanent force independent of the central
Iraqi government.
Rights and wrongs
The constitution asserts a set of individual political rights, as well as
economic and social rights significantly advanced, though not absolutely
unprecedented, in the Arab world. Those rights include freedom of speech and
association, assembly, religion, travel, the right to demonstrate and
strike, access to the courts, open trials and the presumption of innocence.
There are prohibitions against unlawful arrest, slavery, torture, and trying
civilians before a military court. However, the prohibition on establishing
"special or exceptional courts" is already undermined by the special court
established to try Saddam Hussein and other accused war criminals.
In terms of economic and social rights, the constitution includes "the right
to security, education, health care and social security", and states that
the government agencies "within the limits of their resources" shall strive
to "provide prosperity and employment opportunities to the region".
The text calls for a "goal of having women constitute no less than
one-quarter of the members of the National Assembly" that will be selected
[by as-yet-undetermined means] to draft the final constitution, and states
that "all Iraqis are equal in their rights without regard to gender, sect,
opinion, belief, nationality, religion, or origin, and they are equal before
the law".
While the US has launched a major propaganda campaign regarding the
"unprecedented in the Arab world" nature of these guarantees, in fact a
number of Arab states actually have similar constitutional rights. The
problem comes - as is the case in the US, Europe and elsewhere - not so much
in the written law as in its implementation. In this regard, Iraq is
unlikely to be very different.
The relationship between religious law and individual liberty remains
unclear. Islam is to be relied on as "a source" for Iraqi laws, and the
constitution states that no law may contradict either Islamic law or the
guarantees of individual rights. This was a compromise between those urging
that Islam be regarded as "the source", implying that Islamic Sharia law
should be the sole basis for new laws, and those, especially women,
concerned that Islamic law would undermine the constitution's individual
rights. Islam was also identified as the state religion of Iraq (similar to
most Arab constitutions), though religious freedom is included in the
individual rights. US officials, including Bremer, had already announced
they would veto any constitution that in their view would make Iraq an
"Islamic state".
The new document does not address crucial questions even for the interim
period itself. It does not identify the means of choosing the new interim
government beyond "deliberations and consultations". It leaves undefined the
future legality and power of sectarian militias existing in a legal vacuum.
The language states that militias and armed factions outside of the
to-be-created transitional government "are prohibited, except as provided by
federal law", implying that a law drafted in the future granting the Kurdish
Peshmerga forces or a Shi'ite militia or anything else would be deemed
within the constitutional framework.
Phyllis Bennis is a Fellow at the Institute for Policy Studies and is a
contributor to Foreign Policy in Focus.
Marech 25, 2004
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