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Constitution Fight in Iraq

August 29, 2005 at 12:00 AM EDT
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RAY SUAREZ: Sunnis spilled into the streets of Saddam Hussein’s hometown, Tikrit, today, and denounced Iraq’s draft constitution.

SPOKESMAN (Translated): Residents of Saladin Province and Tikrit along with its districts and suburbs and all honest Iraqis fully reject the constitution.

RAY SUAREZ: Many Sunnis boycotted the January election, reducing their initial representation in the constitutional process until the U.S. pressed for more Sunni input in drafting this constitution.

Now, they’re protesting the way it was drafted and the way the stronger and larger Shiite and Kurdish groups pushed the draft document through. Anti-constitution forces have even gained the unlikely support of Shiite cleric Moqtada al-Sadr. But the head of the drafting committee, a Shiite, painted a positive picture of the process.

HUMAM HAMMOUDI, Iraq Constitution Drafting Committee (Translated): In my view, and in the view of many other members of the drafting committee, this constitution represents a very advanced experience in the region and a marvelous experience for the Iraqi people.

RAY SUAREZ: On Sunday, smiling negotiators posed for the cameras just before signing the draft constitution. The Iraqi president, Jalal Talabani, a Kurd, said the move meant the Oct. 15 referendum would go ahead as planned.

PRESIDENT JALAL TALABANI (Translated): The constitution is left to our people to approve or reject it. I hope that our people will accept it despite some flaws.

RAY SUAREZ: But Sunni negotiators soundly rejected it and did not endorse the document.

ABDUL-NASSER AL-JANABI, Sunni Negotiator (Translated): We therefore declare our rejection of the paragraphs in the draft on which we did not reach consensus, which would render the draft illegitimate.

RAY SUAREZ: President Bush praised and backed the Iraqis’ work.

PRESIDENT GEORGE W. BUSH: Instead of using guns to decide the fate of the future, Iraqis from all aspects of their society came together and wrote a constitution. (Applause) This constitution is one that honors women’s rights and freedom of religion. (Applause) Not everybody agreed with it, but now the Iraqi people get to decide. They get to debate. They get to make the decision this fall as to whether or not that constitution will be the constitution that governs their society.

RAY SUAREZ: But just last week, the Bush administration touted the importance of a consensus document. Here’s Defense Secretary Rumsfeld:

DONALD RUMSFELD: Anyone knows that the constitution would be defeated if it stiffed any one of those three units.

RAY SUAREZ: Sunnis could derail the draft constitution if they vote against it by two-thirds in any three provinces.

RAY SUAREZ: And for more on Iraq’s constitutional wrangling and its outcome we’re joined by two Americans who were born in Iraq: Laith al-Saud is a lecturer in social sciences at Harold Washington College in Chicago. Rend al-Rahim Francke is executive director of the Iraq Foundation, which promotes democracy in Iraq; she served as Iraq’s acting ambassador to the U.S. last year under the country’s first interim government. She returned last week from nearly three months in Iraq. Joining them is Spence Spencer, Washington director of the Public International Law and Policy Group, a nonprofit that promotes legal assistance to governments in transition; he spent two weeks in Iraq in July advising the constitutional committee.

Well, Ambassador, does it represent a victory for this young Iraqi government that they decided to just push on and wait for the Sunnis to join or not join later?

REND AL-RAHIM FRANCKE: Well, I think it’s certainly an achievement. This constitution has been a process that has tried to bring everybody together under one banner, and it was done under great pressure. It was a sort of a political pact amongst groups that had to build trust amongst themselves and had to talk about extremely important and very difficult problems, so I think the fact that we have a text is an enormous achievement. They decided to present it to the national assembly even though there isn’t 100 percent consensus, but we are already beyond the deadline and therefore I think it was the right decision to give it to the national assembly and then we have a referendum in October.

RAY SUAREZ: Laith, al-Saud, an enormous achievement?

LAITH AL-SAUD: No, I wouldn’t say so. The constitutional committee broke the law several times. They were unable to achieve consensus although this was a guarantee of the constitutional committee when it became a commission and brought the so-called Sunni community within the process. We have to understand that the role of Zalmay Khalilzad was rather destructive, in this case the ubiquitous presence of him in every and all facets of this constitutional drafting process.

The role of the United States is exactly what is at issue in Iraqi politics. And for Zalmay Khalilzad to have such a ubiquitous presence exacerbated the very issue that the so-called Sunni community as well as those opposed to the U.S. presence in Iraq are making.

RAY SUAREZ: Well, Spence Spencer, you were an American who was closely watching the process, advising the process. Do you agree with Laith al-Saud that there was a problem with the level of American participation?

SPENCE SPENCER: I think the American presence there is so broad and deep that it’s difficult to avoid not speaking with Americans on the topic. I can speak from my own experience that we were very strongly cautioned to make sure that the technical assistance that we provided was good and technical only and to leave the drafting and the decision-making to the Iraqis themselves.

RAY SUAREZ: Well, you’ve been a part of processes like these in other countries. Have there been times when parties have just had to sort of agree to permanently disagree and move on to accomplish what they could?

SPENCE SPENCER: Exactly. And a lot of this happens in prior conflicts that I’ve worked on. A lot of people have just been tired of war, and a lot of people have been wanting a settlement. And I think in this case, the consensus, as Secretary Rumsfeld said, was simply not there to have a more universal agreement that can bring Iraq together.

RAY SUAREZ: But Secretary Rumsfeld also said that this thing could fall apart if one of the three major constituent groups feel, they’re, quote, stiffed.

SPENCE SPENCER: That’s why I would label this an achievement. It’s an achievement today but we have to see how it all turns out on Oct. 15.

RAY SUAREZ: Well, let’s talk about Oct. 15, Ambassador. Can this be stopped at the ballot box?

REND AL-RAHIM FRANCKE: Just to go back to what Secretary Rumsfeld said, the transitional administrative law under which we are now living says that if three governates turn down the constitution by a two-thirds vote in each, then this constitution is defeated. The question becomes a question of numbers. Can any group or can a number of groups combined muster a two-thirds majority in three governates?

RAY SUAREZ: How do you answer that question?

REND AL-RAHIM FRANCKE: I don’t know the answer to that. My gut feeling– you know, it’s not good to predict– my gut feeling is it’s going to be very difficult. A lot of groups are going to have to get together and are going to have to vote in a bloc. And that’s going to be a little difficult. It could be done. I’m not saying it can’t but I think it’s unlikely. I think a bigger question and a more interesting question is what happens if this constitution passes but passes with a marginal vote — in other words, it only gets 53 percent or 54 percent of the national vote, and therefore 46 people vote no for it across the board, across the country? That is going to be more of a problem. The constitution will be in effect. But it will mean that there is a substantial proportion of the population that is not entirely satisfied with the constitution.

RAY SUAREZ: Well, Laith al-Saud, let me get a quick read from you on both those questions. First, given the structure of the Oct. 15 vote, is it possible for the Sunnis who are disaffected plus perhaps supporters of Moqtada al Sadr to stop the constitution?

LAITH AL-SAUD: Yes, I agree. I have to respectfully disagree with the ambassador. There’s obviously if you look at some of the protests that took place in Kirkuk, we have followers of Moqtada al-Sadr joining the so-called Sunni community in denouncing this constitution. And throughout the country we well know that Moqtada al-Sadr has millions of followers not to mention possibly millions of followers in Baghdad itself. So with the joining of Moqtada al-Sadr and other prominent Shiites in Iraq, we can certainly see the possibility of this constitution being voted down in October. In fact, I would argue that it has a strong chance of not passing the referendum in October.

RAY SUAREZ: Well, let me get a quick response to the ambassador’s other point that there’s also threat in the idea of it passing narrowly, that there will be in the country a large bloc of people who don’t want it and yet it becomes the law of the land despite that.

LAITH AL-SAUD: Well, if we consider that, what we have here is a matter of convenience for those who are opposed to this process. On the one hand, the constitutional committee violated the TAL by not requesting an extension by Aug.1. On the other hand, we had some of the fumblings that took place in the past two weeks in which the world was able to witness the inability of the constitutional committee to reach a consensus. So the opposition is in a place of convenience. On the one hand, it can advocate, it can campaign against voting against this constitution in October. If it fails to achieve its ends, it can always invoke that this constitutional progress was illegal or illegitimate because of the heavy-handed role of the United States.

RAY SUAREZ: Spence Spencer, what’s at risk here with these various possible outcomes?

SPENCE SPENCER: Well, certainly for the people of Iraq, a very prolongation of the violence and, you know, the continued sort of stalling of any reconstruction for the country. I really should stress that, you know, people are looking not just at this constitutional process but also about electricity and water and basic infrastructure that has been denied these guys. And you always want to put that in that sort of a context.

For the United States just for example, U.S. forces it’s well known are very stretched in Iraq and around the world and a rerunning of the national assembly elections in December would prolong U.S. force levels for several months.

RAY SUAREZ: Let’s give people at home a look at some of the particular provisions in this draft constitution. In Article 2, it calls for Islam to be the official religion of the state and a basic source of legislation. It says that no law can contradict the undisputed rules of Islam. No law can contradict the principles of democracy, and the Supreme Court will have a number of judges and experts in Islamic jurisprudence.

Some of these formulations, Ambassador, seem purposefully vague — specific in some senses, vague in other ones. Who gets to say what is undisputed in Islam?

REND AL-RAHIM FRANCKE: Right. In fact, throughout the constitution all the 154 articles of it are marked by some ambiguity. And I think this is both a weakness of the constitution but also an opening, a strength. Just as you read, first of all, Islam no laws will contradict the basic tenets or — of Islam, but also not the principles of democracy.

There are openings for everybody here. The question is: Who is going to make the better argument? Which law is going to prevail? Is it a law that is more Islamic, or is it a law that is more democratic? I think the real battles about the constitution are going to start after Oct. 15. We are going to have fights to define what this constitution really means in terms of legislation and in terms of implementation. And I think you’re going to see the lines drawn in terms of the political forces on the ground, in terms of the elections that are coming on Dec. 15 in order to give much more focus and much more meaning to these ambiguous articles in the constitution.

This ambiguity runs throughout the constitution. And it may be deliberate. It may be a question of trying to accommodate as many people as possible, as many views as possible. And therefore we get this looseness, these cracks in the constitution. It depends on who puts their foot first in that crack.

RAY SUAREZ: Laith al-Saud, one of the biggest Sunni complaints during the process was over the parts of the constitution regarding federalism. It says the federal system is made up of the capital, regions and decentralized provinces. The governments of the regions have the right to practice legislative, executive and judicial powers and it specifically sets aside Kurdistan as one of those self-governing regions. Is this a poison pill for the Sunni population?

LAITH AL-SAUD: Well, it is to a great extent, but we have to go further than that and understand Iraqi society. Iraqi society is extremely integrated. There’s a great deal of inter-marriage between not only the Sunni and Shia Arab population but also between the Kurds and the Arabs. So there’s a serious question as to whether federalism as they’re talking about it is feasible to begin with. There’s a millions Kurds in Baghdad; there are tens of thousands of Sunni in Basra.

I also, if I may, would like to address the issue about the attribution of an Islamic state or the provisions within the constitution which call upon Islamic law and the recognition and respect of Islamic law.

RAY SUAREZ: Briefly, please.

LAITH AL-SAUD: Sure. I have a problem with this demarcation between Islam and democracy. I don’t think it’s been made clear by any analysts let alone the western legal advisors who went to Iraq what they mean by Islam or what they mean by democracy. Whenever we invoke these abstract concepts there’s always going to be some obscurity.

RAY SUAREZ: We have until Oct. 15 to work it out. Spence Spencer, does this look like a document that’s got some chance?

SPENCE SPENCER: It certainly has some chance. I think what depends between now and Oct. 15 is the outreach that is going to be required of all of the members of the Iraqi national assembly. One of the things that the transitional administrative law called for was that the constitution would be drafted in consultation with the Iraqi people. And a lot of the national assembly members that I spoke to were all saying, you know, we missed this chance. We only had two months to draft it. We hopefully can get out into the streets and do something. And that’s going to be a real serious challenge for these guys.

RAY SUAREZ: Spence Spencer, guests, thanks a lot.

REND AL-RAHIM FRANCKE: Thank you.