Q&A: Drafting Iraq's Constitution

Q&A: Drafting Iraq's Constitution

Writing a permanent constitution is the main task facing Iraq's 275-member transitional National Assembly. A general outline and timeline for the drafting process is spelled out in the Transitional Administrative Law (TAL), Iraq's interim constitution enacted under U.S. occupation in March 2004. The TAL states that a draft should be ready by October 15, 2005, but legislators can ask for more time. Iraq's lawmakers also will have wide latitude in determining who will compose the document and how inclusive the process will be.

Who will write the draft?

On May 10, Iraqis formed a constitutional committee composed of 55 members of the National Assembly. The United Iraqi Alliance (UIA), the predominately Shiite coalition of Prime Minister Ibrahim al-Jaafari, has 28 spots on the committee, giving it a one-seat majority. The Kurdish alliance, composed of the Patriotic Union of Kurdistan (PUK) and Kurdistan Democratic Party (KDP), has 15 seats. Prime Minister AyadAllawi's secular Sunni-Shiite parliamentary bloc has eight seats. The remaining four seats are held by a communist, a Turkman, a Christian, and a Sunni Arab, according to news reports.

Will other Iraqis join the committee?

Probably. One key reason is that the Sunni Arab community, which had dominated the government since the creation of Iraq as a modern state in 1919, is scarcely represented on the current committee. Sunnis, who comprise some 15 percent to 20 percent of Iraq's population, largely stayed away from voting stations on January 30. They therefore make up only 6 percent of the National Assembly, with 17 of 275 seats. Experts cite a variety of reasons for the low Sunni turnout: intimidation from insurgents; opposition to the U.S. presence; anger over their loss of power; uncertainly over their future status in Iraq; and, in some cases, support for the insurgency. But a constitution that fails to take Sunni concerns into account, many experts say, could spark increased violence and--in a worst-case scenario--lead to a civil war pitting Sunnis against Shiites, who comprise some 60 percent of Iraq's population, and Kurds, who make up some 15 percent to 20 percent.

Another reason the committee could be broadened would be to ensure the constitution reflects views beyond those of the politicians in the National Assembly. "Well-respected Iraqis, including lawyers, technocrats, and Iraqis with communications and community-outreach skills, should participate in the committee," writes David Phillips, a senior fellow at the Council on Foreign Relations, in a new report, Power-Sharing in Iraq. Including more voices, experts say, would help to ensure that the constitution is accepted by the Iraqi people once it is put to a referendum.

What rules will govern the committee's functioning?

They are still being decided. For example, it remains unclear whether the committee will conclude issues according to a simple majority vote, as the Shiite coalition would prefer, or by a two-thirds majority, the preference of the Kurds and other minorities. If other Iraqis join the committee, it must be decided whether they will vote or only serve as advisers. Hussein Shahristani, speaker of the National Assembly, told the New York Times May 11 that the new committee will meet in coming days to choose a chairman and two vice-chairmen, posts that are expected to go respectively to a Shiite, a Kurd, and a member of Allawi's party. The rest of the procedural rules will then be worked out.

What are the main issues facing the drafters?

Federalism: While there is general agreement that Iraq should be divided into federal governorates, or regions, many details must be decided. A fundamental issue is how to allot power between the federal government and the regions. Another is agreeing on the number of regions and the territory each encompasses. The knottiest problem concerns Iraqi Kurdistan, the largely Kurdish region in the north of the country. This region has been virtually autonomous since 1991, when it came under the protection of a U.S.- and British-enforced no-fly zone. Kurds are demanding a great deal of autonomy in a federal Iraq in exchange for giving up their long-held dream of independence. They want regional control over their 60,000-strong militia, known as the peshmerga, and also hope to put procedures in place that would likely lead to an expansion of the borders of Iraqi Kurdistan to include the nearby oil-rich city of Kirkuk. Many Kurds were forcibly removed from that city by Saddam Hussein in a campaign to bring more Arabs into the region.

Revenue-sharing: One of the main debates facing Iraqis is how to share billions of dollars in annual oil revenues among the country's many ethnic communities and geographic regions. The TAL recommends that oil revenues be distributed to regions based on population, with special consideration given to parts of Iraq--such as the Kurdish north and the Shiite-dominated south--neglected by the former regime. Revenue-sharing is expected to be a particularly sensitive issue for Sunnis, who received a large share of resources under Saddam Hussein even though there is little oil wealth generated in the central regions where most Sunnis live.

Division of powers: There is broad consensus that Iraq's government will have three independent branches--a judiciary, a legislature, and a executive--with checks and balances among them. The details of this arrangement have yet to be worked out. Drafters will have to decide if the form of government should be a presidential or a parliamentary democracy and whether leaders should be directly elected or appointed by an elected assembly. The current transitional government is a parliamentary system with a weak presidency and an indirectly elected president and prime minister.

Role of Islam: There is wide agreement among Iraqis that Islam should be considered the nation's official religion, as it is in most of the region's constitutions, says Nathan Brown, senior associate at the Carnegie Endowment for International Peace. But the role given to sharia, or Islamic law, in the constitution is expected to be a matter of considerable contention. Religious Shiites are expected to demand that sharia be acknowledged as the sole source of Iraq's law, and they may want the constitution to state that sharia will govern marriage, divorce, inheritance, and other so-called personal-status issues for the nation's Muslims, who make up more than 90 percent of the population. Kurds and other secularists want sharia to be acknowledged as one of a number of sources of Iraq's law. The TAL compromised between these two positions: it states Islam is the official religion and "a source of legislation," but also says the government may not enact a law "that contradicts those fixed principles of Islam that are the subject of consensus."

Will the general Iraqi population be included in the drafting?

According to Article 60 of the TAL, the drafting should be a widely consultative process, but whether Iraqi lawmakers fulfill this mandate remains to be seen. The TAL dictates that Iraqi lawmakers gather the opinions of a wide section of Iraq's population, "in part by encouraging debate on the constitution through regular, general public meetings in all parts of Iraq, through the media, and by receiving proposals from the citizens of Iraq."

What is the deadline for the draft?

According to Article 61 of the TAL, it should be completed by August 15 and presented to the Iraqi people for approval in a general referendum by October 15. But the TAL also allows the National Assembly to request a six-month extension by August 1. If this happens, the National Assembly would have until February 1, 2006, to complete the draft.

What are the procedures for the referendum?

After the constitution is drafted, the TAL states, it must be published and distributed widely to encourage public debate. The referendum will follow the period of public discussion. If a majority of voters nationwide approve it--and if two-thirds of the voters in three or more of Iraq's 18 current governorates do not reject it--the constitution will be ratified.

How did this approval process come about?

It is the result of a compromise in 2004 between Iraqi Kurds and the Iraqi Arab majority. Kurds make up more than a two-thirds majority in three Iraqi governorates of Iraqi Kurdistan--Dohuk, Erbil, and Sulaymaniya--and wanted to ensure that no constitution could be enacted without the approval of these areas. But the referendum formula can also be used by Sunni or Shiite geographic strongholds to veto the constitution. This explains why the demands of all three groups must be taken into account during the constitution-writing process.

What will happen if the constitution is approved?

After a successful referendum, elections for a permanent government will be held by December 15. The new government will assume office no later than December 31, the TAL states.

What will happen if the constitution is rejected?

The National Assembly will be dissolved, and elections for a second transitional National Assembly will be held by December 15. The new assembly will appoint a new transitional prime minister and government, and the drafting process will start again. A second constitutional draft must be completed by August 15, 2006, after which another referendum will be held. If the new draft is ratified, a permanent government will be seated by the end of 2006. The TAL is silent on what happens if the second draft fails.

Will Iraqis draw on international assistance to write the constitution?

Perhaps, though the Iraqi government has not yet requested assistance, and some experts say the Iraqis, to display their independence, will shun help from U.S. advisers. The United Nations has sent South African human-rights attorney Nicholas Fink Haysom to the region in case Iraqis request U.N. assistance, U.N. spokesman Fred Eckhard said April 12. Haysom, Nelson Mandela's long-standing legal adviser, is "one of South Africa's most prominent human-rights lawyers," says Paul van Zyl, director of country programs at the International Center for Transitional Justice. Haysom is not an Iraq expert, though he has worked in many countries, including Burma, Burundi, and Sri Lanka. Van Zyl says that if Iraqis ask Haysom for help, he will likely emphasize the "consultative and inclusive" aspects of the constitution-writing process.