Coup in Baghdad
Unfinished Constitution Presented, vote Delayed
According to the interim constitution, the permanent constitution should have been presented to parliament and passed by August 15. There should have been two readings of it, two days apart, before the vote. Otherwise, parliament should have been dissolved and new elections called. Parliament avoided this fate with a last-minute amendment of the interim constitution, allowed if by 3/4 vote, though the nicety of two readings of the amendment two days apart was dispensed with (arguably, unconstitutionally, though it is a relatively minor affair). The amendment stipulated that the new constitution would by passed by August 22, with other conditions unchanged.
The new constitution, with blank passages, was presented to parliament just before midnight on August 22. But parliament did not vote on it, and a “three-day delay” was announced.
The rule of law is no longer operating in Iraq, and no pretence of constitutional procedure is being striven for. In essence, the prime minister and president have made a sort of coup, simply disregarding the interim constitution. Given the acquiescence of parliament and the absence of a supreme court (which should have been appointed by now but was not, also unconstitutionally), there is no check or balance that could question the writ of the executive.
The NYT suggests that the religious Shiites had been planning to use their majority in parliament to simply pass the constitution they liked into law, presenting everyone else with a fait accompli. Somehow they were blocked in this plan by the secular Iyad Allawi bloc and by the Kurds. Having failed in this gambit, they punted, giving themselves 3 days by simple announcement.
Al-Zaman suggests that some parliamentarians, including Allawi and some of the Kurds, actually want parliament dissolved and new elections held, convinced that in the next parliament the religious Shiites will not have such a dominant position. They think that might be a better situation for drafting the constitution. Al-Zaman did not give any quotes or proof that this suggestion is founded in more than speculation.
The unfinished draft of the constitution presented was hammered out by community leaders like Jalal Talabani (the Kurdish president of Iraq) and Abd al-Aziz al-Hakim (Shiite leader of the United Iraqi Alliance parliamentary bloc). The constitution drafting committee in parliament appears to have been superseded. The Sunni Arab delegates complained of being frozen out. A partial deal was struck between Shiites and Kurds. Now they will take 3 days to complete the bargain and then lobby the Sunnis to accept it. (“Have we got a deal for you!”) The Sunni Arab members of the drafting committee, not recently consulted on the draft, rejected the entire process and much of the language with some outrage.
It could matter. Any three provinces can reject the constitution by a 2/3s margin in the October 15 referendum. I’d say Anbar and Salah al-Din are in the bag for a no vote at the moment. Since Ninevah, Diyala Baghdad, and Babil are mixed, though, it isn’t clear whether the Sunni Arabs can muster a 2/3s “no” vote elsewhere. Maybe if the Turkmen and Chaldeans/Assyrians join them in Ninevah. Or if the Sadrists join them in Baghdad Province. In insisting on this veto privilege, which Grand Ayatollah Sistani always rejected, the Kurds may have hoisted themselves on their own petard– giving the Sunni Arabs a means of rejecting the loose federalism they advocate.
I don’t know how this very loose federal system will work, and the granting of the right to form provincial federations seems to me dangerous. And I have a sinking feeling that rigid interpretations of Islamic canon law may end up trumping some of the beautiful human rights otherwise promised.
Back in the real world, all of Iraq’s petroleum production was knocked out on Monday.
Al-Sabah gives the Arabic text of the draft constitution presented to the Iraqi parliament just before midnight on Monday, Baghdad time.
Although the wire services say that the preamble was blank in the version presented, al-Sabah gives a long and quite beautiful preamble that recalls Iraq’s past greatness (Sumer, Babylonia), and claiming that Iraqis invented writing and the elements of civilization and passed the first law ever formally passed. This assertion may be more or less correct. It also bows to the Shiite religious authorities in Najaf, as well as “leaders and reformers.”
Here is my rendering of some key passages:
Article 1: The Republic of Iraq is an independent state and sovereign. The form of government therein is republican and parliamentary, democratic and federal.
Para. 1: Islam is the official religion of state, and is a fundamental source for legislation. [Note: It is not THE source of legislation, though being A FUNDAMENTAL one may amount to much the same thing.
a) No law may be legislated that contravenes the essential verities of Islamic law. [Note: The TAL and earlier drafts said that law may not contravene the verities of Islam. By specifying ISLAMIC LAW-- ahkam al-Islam-- this text enshrines the shariah or Islamic canon law quite explicitly in the constitution and would allow religious jurists to question secular legislation.]
b) No law may be legislated that contravenes the principles of democarcy.
c) No law may be legislated that contravenes the rights and basic liberties enumerated in this constitution.
2. This constitution guarantees the preservation of the Islamic identity of the majority of the Iraqi people, just as it guarantees complete religious rights to all individuals, of freedom of religious belief and practice.
3.Iraq is a country of numerous peoples, religions and rites, and is a part of the Islamic world; and the Arab people within it form part of the Arab nation.
[Article 4 gives full recognition to Kurdish as a national language for official purposes, alongside Arabic.]
5) Law is sovereign. The people are the source of (governmental) powers and of their legitimacy, and exercise it through direct secret ballot and through its constitutional institutions . . .
Article 7 forbids racism, terrorism, excommunicating people [saying that someone who claims to be a Muslim is actually an infidel], ethnic cleansing, excluding these phenomena and anyone who incites to them from Iraq’s political pluralism. Especially named in this regard is the “Saddamist Baath Party,” which is banned here just as the Nazi Party is in post-war Germany. [The Sunni Arab delegates are complaining about this provision, and the mention of Saddam's name. Many are ex-Baathists.]
Later, the production of nuclear, biological and chemical weapons is forbidden.
10) The [Shiite] holy cities [al-`atabat] and religious shrines in Iraq are a religious and civilizational entity, and the state emphasizes and safeguards their inviolability, and guarantees the free performance of rituals in them.
Article 13 forbids any provincial constitution from including provisions that contravene the national constitution.
18 a forbids stripping any natural-born Iraqi of citizenship under any circumstances. Gee, maybe Bush could learn something here– he wanted to strip US citizens of their citizenship as part of his ‘war on terror.’ But no one has more terror than Iraq, and they resisted this temptation. US congressional supporters of Bush’s authoritarian so-called “PATRIOT” bill should be shamed by article 18, section A of the Iraqi constitution.
22 guarantees the right of employment to all Iraqis. [Good luck.]
39: Iraqis are free to practice personal status matters in accordance with their religions or rites or beliefs or choice. This will be organized by statute. [Note;: This article is a judge's ultimate nightmare. There will be a civil code governing marriage, divorce, inheritance, alimony, etc, which are called "personal status" matters. But there are also religious codes, whether Shiite law or Catholic canon law. Each individual may choose which law to be under. But what if a Shiite woman wants to be under civil law and her husband wants to be under Islamic law? What if civil law provides for alimony after divorce but Shiite law does not? Which legal code will the family's case be judged under? The man might favor the Shiite court, which will relieve him of alimony. But the woman has chosen civil law, which will award her alimony. How is this dispute over jurisdiction adjudicated?]
AP’s translation of some articles is online. But frankly it is so untechnical as to be almost useless with regard to some key paragraphs. It leaves out the bit about no legislation contradicting the laws (akham) of Islam. You can’t tell what is going on with regard to personal status law, etc. News organizations ought to hire bilingual lawyers as free-lancers for this sort of task– translating a constitution is a tricky thing and many technical terms can be deceiving, especially if you have technical terms drawn from both civil and religious law!