Iraqi Council to Debate Plan for Transition

Iraqi leaders are to begin debate today on a newly crafted proposal for a transitional government that would fuse European and American styles of democracy, with executive, legislative and judicial branches underpinned by a bill of rights.

The draft law calls for a tripartite presidency, which could help balance power among the three dominant religious and ethnic groups. It is likely to be made up of members of those groups -- Shiites, Sunnis and Kurds.

“We are trying to devolve power away from a single center of gravity,” said Feisal Istrabadi, one of the draft’s authors and a senior legal advisor to Governing Council President Adnan Pachachi.

The proposal would also require that women hold 40% of the seats in the transitional national assembly and in a constitutional convention, an effort to guarantee women’s rights in a nation that has vocal fundamentalist Muslim strains.

The document does not call for the strict version of Sharia religious law in place in countries such as Saudi Arabia. Rather, it says that the broad sweep of Islam -- encompassing a vast landscape of thought and legal concepts -- should be the principal source for legislation.

The draft law will be discussed by a committee of the U.S.-backed Iraqi Governing Council, which is free to make changes. Approval by the full council could take several weeks because of the controversial nature of several provisions, not least of which are those calling for women’s rights.

Once approved, however, the proposed law, a copy of which was obtained by The Times, will become the framework for Iraq’s government until the end of 2005, by which time a constitution is scheduled to have been adopted and a permanent government elected.

The document, written by Iraqi lawyers and staff advisors to the U.S.-led Coalition Provisional Authority in consultation with members of the Governing Council, contains a series of checks and balances to ensure no one person or group has too much power. That is in direct contrast to the dictatorship under former President Saddam Hussein, who concentrated power in the hands of the Sunni Muslim minority.

The three presidents, who would be selected by a transitional assembly, would appoint a prime minister to oversee most day-to-day government operations.

However, it is unclear whether the assembly’s members will be chosen through the caucus system advocated by the coalition authority and some members of the Governing Council, or through direct elections, as demanded by Shiite leader Grand Ayatollah Ali Sistani.

Although the plan applies only to the transitional government, it is possible that much of it will be made permanent in a future Iraqi constitution.

“Everything in this document was designed with the goal of attempting to rebuild this country,” Istrabadi said.

It is on that basis, Istrabadi said, that the provisions for women are included. “Women in Iraq have been part of the intelligentsia and academia and professions for a long time. The estimates are that 58% of the population are women.... Iraq will not make progress if it ignores more than half of its talent pool.”

A senior U.S. official familiar with the document said the Bush administration had concerns about some provisions, but that the document was “headed in the right direction.”

Several provisions in the document, particularly those concerning women, are expected to generate heated debate. Furthermore, the Kurds are expected to make an effort to secure a guarantee that they will receive a sizable share of Iraq’s oil and mineral revenues.

The proposal is being discussed at a delicate moment in Iraq’s political development. The U.S. deadline for handing over power to Iraqis is June 30, but a controversy remains over how to choose the transitional national assembly, the primary authority to which the coalition would transfer sovereignty.

Shiites, who make up at least 60% of the population, fear that the caucuses will be too tightly controlled by the Americans and that they can easily be rigged, potentially leaving Shiites with a smaller share of power than they would probably get in a direct election.

The United States and the Governing Council have agreed to have the United Nations assess the possibility of holding fair direct elections in the next five months as called for by Shiite leader Sistani. A U.N. team is expected to arrive in Iraq in the next few days to make an assessment.

Raising the stakes further, Sistani and the Supreme Council for Islamic Revolution in Iraq, which is represented on the Governing Council, are gathering their own team of experts to meet with the U.N. The goal is to have people prepared to counter any concerns the U.N. raises about the viability of direct elections, said Hamid Bayati, a representative of the supreme council.

“We are in the process of selecting a group of technical experts in census taking, security issues, election laws, to study all the problems that could be raised by the U.N.,” Bayati said.

The Governing Council has until Feb. 28 to devise a structure for the transitional government. The draft law is part of an effort to outline that government’s shape regardless of how the assembly is chosen.

Under the draft proposal, there would be a unicameral transitional national assembly with the power to ratify treaties, make laws, make spending decisions and oversee the executive branch. The size of the assembly has not been determined, but it probably will have between 250 and 300 members drawn from Iraq’s 18 governorates.

The assembly would elect the three members of the Presidency Council, which would appoint a prime minister and have veto power over legislation approved by the assembly. Under one scenario, the Presidency Council would also have power to appoint a chief justice as well as the other judges who would serve on Iraq’s Supreme Court. An alternative scenario allows the three presidents to choose only the Supreme Court judges and gives the prime minister the power to select the chief justice.

The prime minister would recommend ministers for Cabinet posts, but they would be appointed by the Presidency Council. The prime minister and Cabinet would have to win a vote of confidence in the assembly.

A three-person presidency is problematic, according to several members of the Governing Council as well as governance experts. Although the draft law does not spell out that the Presidency Council will represent each of the major ethnic and religious groups, there is little doubt among Iraqis that it will work that way.

“I’m against the tripartite presidency,” said Samir Shakir Mahmoud, an independent member of the Governing Council.

“We should have a single president and elect whoever it may be -- Sunni, Shiite or Kurd. I want to get away from Sunni, Kurdish, Shiite divisions -- we should have an Iraqi president. I will argue vehemently against it, but I think I will lose. They all want to be represented.”

Previous U.S. administrations have discouraged the idea of tripartite presidencies or the automatic granting of top political positions along ethnic lines.

“It would only contribute to the cantonization of Iraq along ethnic lines,” said a Bush administration official.

Others familiar with similar ethnic power-sharing arrangements in Bosnia-Herzegovina and elsewhere said that a tripartite presidency could cement rather than ease ethnic rivalries in Iraq.

“You are defining the political dialogue in terms of ethnic and religious identity, which is not the way to start building a democracy,” said Paul Williams, an American University professor of law and international relations who has been a legal advisor to the Bosnian government.

Such a system would likely exclude Iraq’s minorities, such as Turkmens, Christians or Assyrians, from holding the presidency, Williams said.

Another hazard is that it makes it harder to make decisions, said Mahmoud Othman, a Governing Council member from Kurdistan. Othman said he was worried that Shiites, who held 13 of the 25 seats on the Governing Council, would want a larger representation on the Presidency Council and that it could be expanded to five or seven seats.

“One president is better than three, three is better than five.... The fewer you have, the better, because they have to be able to reach decisions,” Othman said. He notes that the Governing Council, which has a presidency that rotates among nine members, has had great difficulty deciding many policy issues. The council was created last summer with the backing of the U.S.-led coalition to begin the shift of power to Iraqis, but it has no legislative authority.

The experience in Bosnia has been bleak. Three presidents -- a Bosnian, a Croat and a Serb -- rotate through the post of chairman, who has most power. This has resulted in each incoming chairman reversing the decisions of the previous.

In addition, the system has generally led to the election of ethnic nationalists from each faction. “When you run as a Serb, the only people voting for you are Serbs ... so none of [the candidates] has an incentive to reach out to the other side,” said law professor Williams.

“The evil of the system is not just the tripartite presidency but the fact that it pervades the entire institution with ethnic vetoes, and that’s a dreadful idea,” said Daniel P. Serwer, a specialist in post-conflict situations at the U.S. Institute of Peace.

But he noted that the Iraqis might adopt a tripartite presidency without the negative elements of the Bosnian political system.

From the Iraqi point of view, the tripartite system was a familiar one before the Baath Party takeover of Iraq and Hussein’s ascension.

A version of it existed under Abdul Karim Qassim, Iraq’s leader in the late 1950s.

Furthermore, because the Presidency Council must unanimously select the prime minister, it would invest three major groups in the one person who has the most day-to-day responsibility in running the government. It would also add to the balance of power among different branches of government.

“We wanted a presidency that had power as a counterweight to the prime minister. It’s part of the checks and balances we’re trying to build into the system,” said lawyer Istrabadi.

Included in the draft law is a bill of rights that guarantees freedom of speech, the right to peaceful assembly, freedom of movement, the right to demonstrate and strike and the right to schooling and healthcare.

The proposal also grants an array of other rights unheard of in Hussein’s time, including a ban on arbitrary arrest or detention; the right to a fair and public hearing; the right to speedy public trial; the right to be presumed innocent until proved guilty; and a ban on the use of physical or psychological torture.