U.S. Voices Concern on Direction of Iraq Charter

Less than three weeks before Iraq’s National Assembly is to approve a new constitution, the U.S. appears increasingly concerned about the document and is vocally trying to influence its provisions on issues such as women’s rights, federalism and the distribution of oil revenue.

Instead of staying behind the scenes as did his predecessor, U.S. Ambassador Zalmay Khalilzad has made clear in his first days on the job that he plans to personally help bring various ethnic and sectarian groups together to forge a compromise document.

“It’s very important that the constitution is produced through the participation of all Iraqis. And, that all Iraqis see themselves in this picture that is emerging,” Khalilzad said at his residence Tuesday. “This is important for ending and defeating the insurgency -- having a political compact.”

A draft of the constitution published Tuesday in the daily newspaper Al Sabah gave some indication of why the Bush administration might have reason to worry.

The document proposes an explicitly Islamic state with a strong Shiite Muslim identity and less progressive laws for women than existed under Saddam Hussein. It also would give sweeping powers and potentially considerable oil revenue to newly created federal regions to use as they see fit. Those provisions, critics say, could deepen the country’s ethnic and sectarian divides.

The draft does not represent the latest text being considered by Iraq’s constitution-writing committee. Absent, for instance, is a provision strengthening the political role of women, which was recently added after extensive lobbying by secular members of the commission.

But several people close to the process said the published version appeared to be the commission’s working document of a few days ago.

“It wasn’t supposed to be released ... but this is what we’re working on,” said Jawad Maliki, a Shiite Muslim member of the constitutional commission. “But in a way it’s good, and in a way it’s bad. Now people know what we are working on in the constitution.

“There will be additions and deletions from this,” he added. “We haven’t finished yet. Kurds still have their demands, the Sunnis still have their demands and we still have our demands.”

Some of the rights outlined in the draft are common to many democracies, such as the right to privacy, free speech, plus freedom of religion and freedom from discrimination.

Other elements, though, are products of the nation’s experience under Hussein. During his rule, the dictator often stripped enemies of their citizenship, forcing them to leave the country. So the drafters inserted a clause forbidding the state to strip an Iraqi of his citizenship.

According to this draft, the government would be a parliamentary democracy with a weak executive branch -- another result of the Hussein era. There would be a single legislative body, elected every four years, and an independent judiciary.

Arabic would be the state language except in the Kurdish-dominated north, where both Kurdish and Arabic would be official languages.

However, the provisions on Islam and on the powers of the newly created federal regions are potentially divisive within Iraq. The powers of the regions are a concern for U.S. officials, as are the diminished rights of women.

The draft text states that “Islam is the official religion of the state. It is the basic source for legislation. It is forbidden to pass a law that contradicts its fixed rulings.” That language is considerably stronger than the model set down by U.S. authorities before the hand-over of sovereignty last year, which stated that Islam would be “a source” for legislation.

By elevating Islam to the primary source of law and by referring to its “fixed rulings,” the draft constitution suggests that the whole body of Islamic jurisprudence should be taken into consideration when drafting Iraqi laws, said Nathan Brown, an expert in Arab constitutions at the Carnegie Endowment for International Peace.

Brown noted that the draft constitution did not mention who would determine whether a secular law contravened Islamic principles. But the provision raises the question of whether clerics would have to approve legislation passed by the National Assembly.

Another provision would accord clerics a special status in society, granting them the authority to offer guidance “as religious and patriotic symbols.” But which clerics the drafters are referring to remains unclear.

There is debate about whether to specify that the clerics under discussion are the marjaia -- the grand ayatollahs who form the elite of the Shiite clergy.

Shiites are a majority in Iraq, and specific mention of the marjaia would almost certainly be a nonstarter for minority groups, particularly Sunni Arabs, who do not have a similar clerical hierarchy. Kurds would also dislike it, because they are both Sunnis and largely secular.

A third provision on religion would specify that religious shrines have a special status under the law and that the government must “emphasize that they are sacred, and must protect and safeguard their sanctity.” But because most shrines in Iraq are seen as Shiite, Sunnis might object to that article.

U.S. officials have been largely silent on the constitution’s discussion of Iraq’s Islamic identity. In part that is because they do not want to be seen as anti-Islam. In addition, they recognize that the constitution needs to be seen as an Iraqi product in order to have legitimacy.

However, the draft constitution’s provisions on women have drawn clear criticism from U.S. officials. In the draft, a single sentence jettisons nearly 50 years of progressive Iraqi legislation protecting women’s rights.

The draft reads: “The state provides all rights for women to make them equal to men in all fields according to Islamic Sharia laws and to help women to make a balance between their family and societal duties.”

Explicit mention of Sharia indicates the drafters’ intention to reinstate religious courts to oversee marriages, divorces and disputes surrounding inheritances. Although the language is less explicit than in some earlier versions, it still would remove all “domestic” issues from the jurisdiction of civil courts, said Rajaa Khuzai, a physician who is a member of the constitution-writing commission.

However, in a victory for Khuzai and other secular members of the committee, the commission has reinstated a requirement, contained in the temporary law now governing the country, that at least 25% of the National Assembly’s members be female.

Khalilzad has expressed strong views on the importance of preserving women’s rights.

“In our view ... equality before the law for Iraqi citizens is very important,” he said Monday. “A society cannot achieve all its potential if it does things that prevent ... half of its population to make the fullest contribution that it can.”

By far, the most difficult question involves how power in the country will be divided between the central government and the provinces. Under the draft leaked to the newspaper, any two provinces could unite into a region, and there is no limit on the number of provinces that could join together.

That would allow Kurds in northern Iraq, who have had almost complete autonomy for more than a decade, to retain a large degree of self-rule. Some Shiites hope to use the provision to unite the nine largely Shiite provinces south of Baghdad to create a Shiite mega-state within Iraq.

Each region would have an executive branch, a legislature and a judiciary -- like states in the U.S. -- and they would be financed in part through “a fixed share of the natural resources,” a response to demands by Kurds and Shiites that a portion of the revenue from oil drilled in their areas benefit local residents.

The percentage of revenue they would receive is unspecified. However, some Kurds have discussed figures as high as 50% and Shiites have mentioned 30%. That could mean more than $1 billion a year for certain regions.

Another controversial provision under consideration would allow the regions to make agreements with neighboring states, as long as they do not contravene Iraq’s national laws.

Sunnis oppose such a plan, fearing that the Shiite-heavy south might secede or come under inordinate influence from Iran, also dominated by Shiites.

Many Sunnis view Iran as an enemy country not only because of the Iraq-Iran war in the 1980s, but because Shiites and Sunnis have struggled against each other for centuries.

Sheik Illiam Khalaf, secretary-general of the National Dialogue Council, a leading Sunni organization, said the idea of granting Kurds a special region was not especially controversial.

“We do recognize that the Kurds are a special case. They have been self-ruling for the past 15 years,” he said. “But this special status will not be extended to other parts of Iraq, because it might lead to separation in other areas.”

Khalilzad, too, signaled discomfort with the federalism provisions in the draft. He praised as a model South Africa’s constitution with its “weak form of federalism,” which specifies the powers of regional authorities and those to be shared with the central government.

On the question of oil revenue, he suggested Tuesday the shape of a possible compromise, noting that Sunnis are most worried about the country dividing into federal regions that would have access to oil revenue.

“There are people on the Sunni side ... [who say] they would be open to a resource division as long as it’s not a regional-federal arrangement,” Khalilzad said. “Fundamental issues are on the table.”

Times staff writers Paul Richter in Washington and Zainab Hussain in Baghdad contributed to this report.