Almendhar, Iraq
Aug 18 2005
Would the Permanent Constitution Solve the Problem of Regime in Iraq?
A fast review of the drafts that were published by some Iraqi and
Arab newspapers have disclosed some dilemmas and problems of
political and legal nature, especially as some drafts came as an
expression for what is short-termed and temporary at the expense of
what is strategic and long-termed. In addition, some of them came as
a reaction to former conditions, not for considerations of
constitutional dimensions that are necessitated by the contemporary
state.
As regards the ‘new’ un-timed mines and bombs, in addition to what
has been stated in the interim state administration code, they are:
1. The relation between religion and the state: Is Iraq actually ‘an
Islamic republic’ as stated in the chapter of fundamental principles?
It is worth mentioning that the religionization of the state at the
expense of its civil nature would leave its traces and legal and
political traces on the state and its future.
2. Sectarianism of the state and community: For the first time,
sectarianism would be officially adopted instead of equivocation, as
it was in the former racial laws. It seems that the strategy of Paul
Bremer, the American civil governor in Iraq has infected the
permanent constitution, as the draft has included the phrase “the
Islamic identity of the majority of Iraqi people (with its Shiite and
Sunni majority)” (Article 2 Chapter 1). Under the sectarian strain
and the ethnic tension, the legislator should have plainly and
clearly stated ‘the impermissibility of sectarianism and punishing
those who practice, or call for, or promote, or harbor it, based on
the constitutional concepts on which the contemporary state is based
on, especially the principles of equality and non-discrimination.
3. Ethnic division and conceptual confusion between nationalism and
religion: The constitution has coined that the Arabs and Kurds are
“two major races”, and has coined “basic races for the Turkmen,
Chaldeans, Assyrians, Armenians, Shabaks and Persians.” Then it moved
to the Yezidi and Sabaen Mandaen religions (Article 3). It can be
stated that the Iraqi people consist of two major races “Arabs and
Kurds”, in addition to other racial, and linguistic and religious
races, then stating them by name. The constitution guarantees their
rights, pursuant to the UN Convention for the Protection of National
Minorities for 1992, and the International Convention on Human
Rights, on basis of full parity, equality and citizenship.
4. Iraqi’s relation with Arabization is afloat: The legislator did
not desire to state that Iraq is a part of the Arab nation, while it
is a founding member of the Arab League, and is adhering to its
conventions and treaties, due to the related ethical considerations
and legal liability. The text came general and descriptive without
any obligation, “The Iraqi state is a part of the Arab and Islamic
worlds.” (Article 5)
5. Political Seclusion: The constitution project has prohibited
racism, expiation and terrorism, which is a clear and justified
matter, especially due to the plain and clear calls for
criminalization, conviction and hatred, in addition to the terrorist
practices of extremist radical forces. Nevertheless, the legislator
was not satisfied with that, but connected it to the Saddami Baath,
which should be a part of the political diversity of the state
(Article 11). In case the punishment of the criminals of the former
regime is a legal and legitimate matter, the non-criminals would be
included in the constitution in political alienation, including a
great number of the members and cadres of Baath Party, who were
opposing the policies of the former regime, from within the same
party.
This text reminds us of the decisions of the former revolution
council. On March 21, 1980, the council has issued a decision (law)
that prescribes the impermissibility of joining the (agent), as
stated in the text, Islamic Da’wa Party, and rules with death
sentence for all its members. The decision even went further to
punish those former members, upon retroactive force.
Prohibiting Baghdad Alliance, Nouri Al Sa’ed’s government has issued
laws that prohibit the communist activities, and the like,
considering them as destructive activities.
The Baathi government of February 8th has issued a statement during
the first few hours of the coupe de tat, known as (Statement no.13),
which called for eradicating the communists.
The matter appears not to be restricted to laws, as some forces have
practiced banning the activities of others through their influence
over the street, the intellectual terrorism and exploiting the state
authorities, as occurred in 1959 on behalf of the communists against
the nationalists and Baathis.
The Kurdish movement has always been among the victims of banning and
discrimination, to the extent of issuing a general amnesty for the
armed Kurds, of which the former president Saddam Hussein has
excluded the current president Jalal Al Talebani.
The matter is not the issue of a law or the existence of a
constitutional text for eradication, banning or discharging. Ideas
can only be fought with ideas, evidence can never be refuted except
with evidence, and opinion can oppose another, not by the power of
law or chasing ideas. As for criminals, we would say that making
decisions on them is the competence of courts and judiciary
decisions.
6. The role of religious reference: The constitution project stated
“its independence and guidance status, for its being an eminent
national and religious symbol. (Article 15)
Here, we should stress that the reference is not only one, as it is
diverse and numerous. Despite the fact that the text induces the idea
of “the supreme reference” in the Islamic Republic of Iran or “the
committee for diagnosing the interest of the regime”, it does not
state it frankly. These are elected entities that the constitution
puts at a sublime elite status, and would have eventually the right
to make the decisions. In case Imam Al Khomeini has requested for the
rule of the jurist (Wilayat Al Faqih) through his political role, Mr.
Al Sestani desired or was granted a role (which he might not have a
great desire for), through his spiritual reference. Nevertheless, he
has retreated in a significant interview with Germany’s Der Shpigel
magazine has quoted his clear and plain talk when he called the
Shiite scholars not to occupy political positions or play a key
political role.
A question might pop up for the readers: How many references do we
have? (After asking: What is a reference and what is its role?). The
Shiaas have their references and so do the Sunnis, all Christian
sects, the Yezidis, the Sabaens and others.
In case we supposed that ‘Al Alamia, Al Zuhd and Al Haida’ are within
the reference, then what about if they interfered in the political
affairs and have promoted for this team or that group or person?
There might be many criticisms that emerged during the elections on
January 2005, when Al Sayyid Ali Al Sestani’s name and images were
used, and the denial of supporting this slate was not up to the level
of responsibility necessitated by the status of the reference.
However, the references and Hawzas should not be exploited for
political propaganda or promoting for this or that political party.
In addition, how can we deal with the reference in case it protected
‘corrupters’ or did not confront them, especially those acted
fruadently with the rights and money of the state, community and
citizens, in the past and present?
What if the references have been negligent and delayed a great
crucial matter that is relating to the destiny of the homeland, such
as the situation towards the occupation and fighting it? What if its
estimations were mistaken and wrong? The reference has previously
adopted stands that have aroused division in the Iraqi street. As
long as we are weak humans, we can make mistakes. Nevertheless, heavy
weight negligence or mistakes, as they say, are not similar to the
wrong estimations of regular people.
7. The legal identity of sacred thresholds: The state should stress
their sacredness and protect them. The text also induces the demands
of some Iraqi and non-Iraqi Shiite Islamic forces for the necessity
of placing the sacred thresholds under international supervision,
which would lead to dishonoring Iraqi sovereignty. It is a
coincidence that the post-occupation governments are the ones that
most violate the holiness of the sacred thresholds. They have
cordoned Imam Ali’s shrine (PBUH) in Najaf, have raided Al Sayyid
Muqtada Al Sadr’s group in the sacred Al Haidari’s shrine, and have
bombed the returning people from Muslim Ibn Aqil’s shrine in Kufa.
These confrontations and violations remind us of what Hussein Kamal
did in Imam Al Hussein’s shrine in Karbala in 1991.
The sacred shrines are public facilities that have their special
status and holiness for great classes of Iraqi and non-Iraqi Muslims.
The state should protect, maintain and develop them, in addition to
improving their mortmain system that they were annexed to in 1997.
Unfortunately, the sectarian division of the civil governor Paul
Bremer has extended to the mortmain ministry, dividing it into
“Shiite Mortmain” and “Sunni Mortmain”, after being only one
ministry.
8. Fear of the issue of population housing that is harming the
demographic environment in Iraq: (Section C, Article 4, Chapter 2).
The matter is not concerned with the settlement of Turks from Turkey,
or Kurds from Turkey, or Iran, or Syria, or Iranian or Bahraini or
Saudi Shiaas, it is related to the Palestinians. Some identities have
expressed panic from the settlement as it would lead to changing the
sectarian structure. The rejection of the principle of settlement is
not for preliminary considerations relating to the rights of the
Palestinian Arab people.
9. Women’s rights: which the state guarantees, pursuant to the
provisions of Islamic Sharia, as stated in the draft. It is a new
indirect attempt against law no. 188 for 1959, which has granted
broad rights for women, and has been rejected at that time on behalf
of many unsuccessful religious and traditional media. There were
attempts to cancel it in the interim governing council. Many laws
that treat women fairly, but they were frozen and nullified, due to
the wars and siege. The former regime has issued several retarded
laws that dealt with women’s rights, including the attenuated
penalties for murdering women for disgrace and the return of some old
clannish traditions.
There are currently several worries including: subjugating women’s
rights and freedom to limitations, designated in the name of Sharia.
The explanations and interference of interpreters are included.
Therefore, the issue of marriage, divorce and heritage are not remote
from the dominance of clergymen, which sets pressure on the idea of
civil marriage and equal rights stated in international conventions
with regard to women’s rights and preventing all forms of
discrimination against them.
10. Regions and their competence: Chapter 4 (Article 2) of the
constitution project has given the right to two or more provinces to
create a region and gave the region a right to draft a constitution
and approve it upon absolute majority (Article 7). It also gave the
president of the region the right of representing his region abroad
(Article 14). The legislator should have stressed the competence,
i.e. rights and duties, of Kurdistan region (in specific) as it is a
realistic not hypothetical situation. It has actually existed for
years. The Kurds have clearly crystallized their demands. Discussions
and debate might not be on the principle but on the limits and
competence of the regional authorities, the competence of its
non-central institutions, the right means for settling the postponed
Kirkuk problem, and the relation of the region with the federal
authority.
As for speaking of federations and regions for two or more provinces,
under a perplexed situation and the occupation, it might give some
adventurers and greedy persons the opportunity to exploit such hard
conditions, especially by accelerating the sectarian strain and
tension to drive matters towards division and fragmentation. This
serves old Zionist plans; especially as the heritage of the strict
oppressive central regime still have their heavy nightmares and
bitter experience.
The form, structure and competence of the federal system, which is
stated in the drafts is closer to entities, on their way to
separation, or at least it would be possible in case these regions
desire that, especially as the constitution project does not clearly
state the singularity of foreign representation, and international
and diplomatic relations, in addition to the issue of resources,
general budget, currency and armed forces, which arouse such doubts.
***
This mine might be the most dangerous, after the sectarianism, in
case it aggravated and exploded. The issue is not related to
Kurdistan region, which is a legal and political entity since the law
of self government for 1974 (despite its missing points and great
gaps), the broad and semi-complete independence during the period of
late 1991 until 2003, but the supposed form of the region and the
political projects behind it.
The permanent constitution has added to the complexity of the old
governing problem and filled it with doubts, skepticism and confusing
texts.
An Iraqi writer and thinker
Al Hayat