Iraq Interim Constitution Signed
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GWEN IFILL: Ayatollah Ali al-Sistani’s objections to the new law exposed some of the hurdles along the way to democracy in Iraq.
Joining us to walk us through the cause and the likely effect of the interim constitution are Feisal Istrabadi, who is just back from Iraq where he was one of the principal drafters of the law– he serves as a senior advisor to governing council member Adnan Pachachi, and Juan Cole, professor of middle east history at the University of Michigan — he recently authored Sacred Space and Holy War” about Shiite Islam. Mr. Istrabadi, what would you say is the significance of this new document?
FEISAL ISTRABADI: Well, I think the significance is that the people of Iraq are taking charge of their future. This is the first step towards the assertion, reassertion of the sovereignty of the people of Iraq, which has been usurped for at least 35 years by a tyrannical and brutal regime.
It is the first step that Iraq takes in over a dozen years to attempt to reintegrate itself into the family of nations. And it is, I think, a day which the first steps towards ending at least the formal occupation of Iraq by the coalition forces begins. It’s a significant day, I believe, in Iraq’s history.
GWEN IFILL: Professor Cole, Mr. Istrabadi talked about the first steps. Are they big enough steps as far as you can see?
JUAN COLE: Well, this is a basic law that will govern the interim period, the transitional period to an elected parliament. But an elected parliament next year must in essence renegotiate many of the prime points in this document, and those negotiations are likely to be extremely difficult and controversial to provoke a great deal of trouble. This document has put off many of the most essential disputes until the future.
GWEN IFILL: Mr. Istrabadi, let’s start with the Bill of Rights, then we’ll get back to the parts that Professor Cole says are missing. To an America ear and an American eye, we see the guarantees which are included in this document as fairly ordinary. But are there things that we just outlined that are included in the Bill of Rights significant in this context?
FEISAL ISTRABADI: Well, they are significant outside these shores. Whether they are ordinary or not in the United States, obviously is debatable. There are certain things that this Bill of Rights does which the United States Bill of Rights does not necessarily do.
For instance there is a provision, I think it’s Article 22, which allows citizens whose rights have been abused in fact to march into court, to enforce their rights against officials who have denied them their rights under the Bill of Rights. That is something which is not contained in the United States Bill of Rights. And in fact is a statutory right in this country.
It is in the Bill of Rights in the transitional administrative law, what is commonly being called the interim constitution. In addition to that it is a fairly liberal Bill of Rights, which on the other hand does not attempt to divorce itself from the cultural and social milieu in Iraq. I think it’s a significant document for the region.
GWEN IFILL: How about, Professor Cole, how about the part of the new law which declares Islam the official religion. Is that leaning toward theocracy?
JUAN COLE: Well, no, I don’t think that the provision that Islam is the religion of state is necessarily theocratic. After all, Anglicanism is the religion of state in the United Kingdom. But the troubling part of that passage really is a provision that no law may be passed by the national parliament which is contrary to the Islamic legal code.
Well, the Islamic legal code can be interpreted in many different ways. But if you had authorities who were more fundamentalist in power, they could actually use that provision to attempt to circumscribe many of the liberties specified elsewhere in the document.
GWEN IFILL: Actually, Professor Cole, I’ll be with you in a moment. Mr. Istrabadi, Professor Cole, you mentioned something about the fact that more conservative elements can control — can exert control in this way, yet it seems that most of the control that’s been exerted so far about whether this got signed or not was by a theocrat, I guess, by Grand Ayatollah Ali al-Sistani. His statement over the weekend, at least his suggestion that it was okay to sign this constitution and then his statement today that he didn’t think this would be enough, how do you interpret that?
JUAN COLE: Well, Sistani believes that there are provisions in this interim constitution, which are illegitimate. One of the main problems he has is with a provision that would allow any three provinces, and this especially refers to the primarily Kurdish provinces, to veto the permanent constitution that will be worked out next year if it’s voted against by two thirds majority in each of those provinces.
Since many provinces are lightly populated, a provision that any three provinces out of the eighteen could reject the permanent constitution seems to Sistani to be anti-democratic, to allow a small minority to hold the entire country hostage.
So that was his concern, and he has allowed the process to go forward and has instructed people loyal to him to vote, to sign this document. But he has made it clear that he has severe problems with this provision, and I think he’s going to agitate to try to get it changed in some way, even though the document itself specifies that it can’t be amended until a new constitution is prepared.
GWEN IFILL: Mr. Istrabadi, you helped to draft this constitution, this interim document. Is it a weak point?
FEISAL ISTRABADI: Well, certainly the document is not flawless, and there were compromises which were made in order to get an agreement on the document. I want to emphasize that this document was passed without a single dissenting vote, that there was a genuine effort on the part of the governing council, which was successful, to engender a consensus about this document article by article.
No huge compromise was made, as was the case say with the American Constitution where the founders of the American Constitution compromised say on the issue of slavery. Those kinds of compromises on principle were avoided in this document, political compromises were necessary, and no one walked away with 100 percent of what was they wanted.
On the issue of Islam, and this is something that has to be pointed out unfortunately the media hasn’t quite gotten right what the document says about Islam. What, I believe it’s Article 7, says is that there cannot be laws which contravene the settled principles of Islam upon which there is universal consensus, nor any laws which contravene the principles of democracy, nor any laws which violate Chapter 2 of the document which has to, which is the Bill of Rights. Now the Arabic for the Islamic principles is — (speaking Arabic) — that is to say on which there is universal consensus. This is not the, (Arabic), the document does not say that Islamic law cannot be contravened. It is the Islamic principles upon which there is university consensus. That’s a very different thing.
GWEN IFILL: Let me ask you both about one other big cloud, potentially hacking over this, and that’s the unpredictability of the security situation. We saw last week, Mr. Istrabadi, what happened in Karbala, what happened in Baghdad, and I wonder if you are concerned in any way that the kinds of unpredictable events such as bombing, such as suicide bombings, attacks on holy days, could take this entire, this entire effort to democratize Iraq off path?
FEISAL ISTRABADI: It can. The security situation is the fundamental problem in Iraq. If it continues to deteriorate, it will at some point be very easy for a demagogue to take advantage of the situation, and I fear that frankly.
On the other hand, I am also buoyed by the knowledge that that is an obvious attempt, the terrorist attacks which have been occurring in Iraq of late, particularly those in Kabul and Karbala are clearly designed to draw, to create wedges between Iraq’s Shiite and Sunni populations. And I’m very pleased to see that those attempts at least thus far have failed, I pray their continue to fail.
GWEN IFILL: Professor Cole?
JUAN COLE: I think that this is an important document. It’s significant in many ways. It guarantees the Iraqi public many rights, but as you say, the political situation goes beyond what are words written on paper.
The issue of Kurdish autonomy or the degree to which the Kurds will retain a certain amount of autonomy from Baghdad still has not been worked out. This document simply recognizes the status quo and puts off the negotiations about that until next year.
We had in January riots in Kirkuk, a northern city, over the possibility that it might be joined to the Kurdish provinces — that hasn’t been resolved. The issue of what is a consensus about an Islamic principle is to some degree subjective, and were a very large number of delegates to the parliament to be elected from fundamentalist parties, that would affect appointments to the judiciary, so you might have more of a, fundamentalist judges making a decision about what Islamic law is, and of course people tend to think that their opinion is what is agreed upon.
So with regard to separation of religion and state, with regard to provincial autonomy, with regard to, and then the security problems are enormous — North Central Iraq seems to be very unstable. The reports I get from journalists on the ground talk about waves of assassinations, kidnappings, insecurity, people are afraid to go out at night. And you can’t have a democracy in those circumstances.
GWEN IFILL: Professor Cole, and Feisal Istrabadi, thank you both very much.