Draft Clearly Shows Points of Contention

Built atop the still-smoldering debris of Saddam Hussein’s decades-long rule, Iraq’s draft constitution is a document born of past grievances and future hopes. It has features that will delight social democrats while angering feminists, and encourage some of Iraq’s minorities while enraging others.

The United Nations and other organizations provided Iraq’s 71-member constitutional committee with Arabic translations of constitutions from the West as well as the East, from nations secular and pious, and a wide array of ideas shape the Iraqi charter’s 139 articles. But in the end, the document reflects the conflicts among Iraq’s religious and ethnic groups, and its search for compromises often leaves vague or unresolved issues that have sharply divided negotiators.

The draft constitution’s provisions include:

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The Role of Islam

Article 2 establishes Islam as the official religion of the state and a basic source of legislation, guarantees the “Islamic identity” of the majority of the Iraqi people and requires that no law contradict the “undisputed” rules of Islam. At the same time, it requires that laws do not contradict democratic principles and basic freedoms. It also safeguards religious freedom for Iraq’s Christians and other minority faiths. However, it does not explain how those sometimes-contradictory goals will be resolved. The language represents a compromise between pious Shiite Muslims who had demanded that Islam be the main source of legislation and Kurds and urban liberals who had sought a secular system.

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Ties to Arab World

Article 3 defines Iraq as a “multiethnic, multi-religious and multi-sect country” that is part of the “Islamic world,” while its Arabs “are part of the Arab nation.” That clause, designed in part to placate ethnic Kurds, outraged Sunni Muslim Arabs who had demanded that all of Iraq be considered an Arab nation. Sunnis have appealed to the Arab League for help.

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Minorities

Article 4 defines broad rights for Iraq’s ethnic minorities, especially Kurds. It makes Kurdish and Arabic official languages, requiring both for government documents, money, passports and postage stamps. It also allows Iraq’s Turkmens, Assyrians and Armenians to have their children taught in their languages in public schools.

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Baathists

Article 7 outlaws hate groups that advocate terrorism or racism, “especially the Saddamist Baath and its symbols, under any name.” It commits Iraq to fighting terrorism. Minority Sunni Arabs, who held great influence under Hussein, had asked that language specifying the Baath Party be eliminated from the charter for fear that lower-level party members who had committed no crimes would be alienated from public life.

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Militias

Article 9 bans the formation of militias outside the framework of the armed forces. Such militias, often loyal to political parties, have run rampant in Iraq since the U.S.-led invasion in 2003, serving in some areas as police forces virtually free of government control. Many Iraqis will be glad to see them go. Yet the Kurds’ peshmerga warriors, who will continue to exist in the Kurdish-ruled north, are widely considered to be an ethnic militia loyal to Kurdish parties, and many Iraqis wonder how they’ll be reined in.

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Religious Shrines

Article 10 commits the new Iraqi state to protecting and maintaining the country’s many important shrines and religious sites. Hussein often violated the sanctity of Shiite sites, which include the tombs of imams Ali and Hussein, two relatives of the prophet Muhammad revered worldwide. However, the constitution omits language Shiites had wanted granting special status for Iraq’s highest-level clergy.

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Dual Citizenship

Article 18 grants every Iraqi the right to dual citizenship. Sunni Arabs and others opposed this provision, but were overruled by Iraq’s new political class. Many Iraqi elites spent decades abroad during Hussein’s reign and want the option of returning to the country that sheltered them if the Iraqi experiment fails.

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Welfare State

Articles 28 to 34 define Iraq as a welfare state in the tradition of Western Europe. The constitution exempts the poor from taxes while guaranteeing universal healthcare and free education at all levels for all Iraqis, without defining how to fund such ambitious plans. It guarantees the right of Iraqis to a clean environment and commits the state to preserving the “biological diversity” of wildlife.

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Civil Liberties

Article 36 guarantees Iraqis the freedom of speech, assembly and press with a limitation meant to appease Iraq’s traditionalists and religious fundamentalists: “as long as it does not violate public order and morality.”

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Women

Article 39 gives Iraqis the choice to define their “personal status” according to their own beliefs, supplementing Iraq’s civil laws governing marriage, divorce and inheritance with the option to turn to religious clerics in matters of family law. Iraq’s Islamists originally wanted to put all such laws under the jurisprudence of clerics. But secular Iraqis and many women demanded that Iraq’s previous laws be kept. They fear that under this provision women in more restrictive environments still might be forced by husbands and fathers to accept religious rather than civil rulings.

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Religious Rituals

Article 41 gives Iraqis the freedom to perform religious rituals and run their own religious endowments, a victory for Shiites who were banned by Hussein from taking part in centuries-old ceremonies and forced to succumb to state administration of their faith.

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The Parliament

Articles 47 to 63 spell out Iraq’s two-house legislative authority made up of the Council of Representatives and Council of Union. The Council of Representatives will have the most clout, with one seat for every 100,000 Iraqis and the responsibility to make laws, oversee the government, reject or approve Cabinet appointments and impeach the president.

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The Executive

Articles 64 to 84 define the powers of a relatively weak president who must confer with a prime minister or legislators on making big decisions and is largely reduced to receiving ambassadors and leading the armed forces at parades. Even the medals he awards come on the recommendation of the prime minister.

Sunni Arabs loathe this provision, but after the Hussein era Shiites and Kurds had no intention of vesting both power and prestige in one strong leader.

Much of the power for implementing policy and security will be in the hands of a prime minister and the Cabinet.

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The Courts

Article 90 allows experts in Islamic as well as civil law to serve on the supreme federal court. Iraqi Shiites had originally wanted a separate court to vet laws according to Islamic criteria, but secular Iraqis and Sunnis were outraged, fearing an Iranian-style Guardian Council, which approves all laws in Tehran.

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Oil

Article 110 puts the federal government in charge of administering current oil and gas fields while leaving vague the language on how to distribute money derived from future energy finds. Kurds and Shiites originally wanted specific formulas for distributing oil wealth. The law now only calls for a formula that compensates areas deprived of development under Hussein’s government.

The former dictator lavished much of the country’s oil wealth on largely Sunni areas while leaving the mainly Shiite south to languish.

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Federalism

Articles 113 to 118 define Iraq as a federal state and spell out in detail the mechanism for provinces to form into regions. A referendum can be held if a third of an area’s local legislators or a tenth of its voters ask for one. A simple majority vote creates a federal region.

This has been the provision that has most angered Iraq’s Sunni Arabs, who believe it’s a recipe for dismembering the country along ethnic and sectarian lines. They also fear that federalism will reduce their share of oil revenues and increase the influence of Iran in the Shiite south.

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De-Baathification

Article 132 calls for a continuation of the committee removing ex-members of the Baath Party from government posts throughout the transitional period leading to a new government. Sunnis have decried the very mention of this in the constitution, whereas Shiites have demanded the ongoing purge, which continues in Iraqi ministries.

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Women in Government

Article 137 reserves 25% of the seats in the future parliament for women, who scored a victory by pushing out a previous clause that put an eight-year time limit on the provision.