Nearly
one year to the day after the American-led invasion of Iraq, and
after months of closed-door wrangling over the demands from various
elements -- the 25 members of the now-defunct Iraqi Governing
Council gathered in Baghdad to endorse a document that would guide
the country
through a period of fragile sovereignty to the first free elections
in that country in over 50 years.
 That document,
the interim constitution -- officially, the Law of Administration
for the State of Iraq for the Transitional Period -- laid out
the process by which Iraqis would elect a transitional government
whose main charge was to write a new constitution.
Although at
times threatened by what former U.S. Iraq Administrator Paul Bremer
called "birth pains of a democracy," the law came into
being on March 8, 2004. Mohammed Bahr al-Ulum, a Shia who held
the council's rotating presidency on that day, called the document
a "foundation for the reconstruction of a new Iraq; a new,
free, democratic Iraq that protects human rights."
With references to the "right of free expression ... to freedom
of thought, conscience, and religious belief," protections
for minorities, women's rights, guarantees of legal due process,
pluralism, federalism and democracy, much of the transitional
law's language would be familiar to those who read the U.S. Constitution.
The document itself was a product of American-trained lawyers
of Iraqi descent -- and shaped with American input.
Approval process
The Iraqi constitution outlines a fairly straightforward process by which
the National Assembly should craft a new constitution. After forming
the new government, the elected parliament must complete a draft
of the new constitution by Aug. 15, 2005, for a national referendum
to be held by Oct. 15, and elections for a new government by Dec.
15.
But many observers
of the political process in Iraq say the broad support needed
to adopt the new constitution is just one part of the process
that could falter.
The framers
of the transitional law did recognize the tight window between
the formation of the new government and the drafting of the constitution
and allowed for a one-time delay of six months. One of the key
tenets of the transitional law is that the new constitution will
pass only with the approval of a majority of Iraq's population,
and provided two-thirds of the citizens in three  or
more of Iraq's 18 provinces do not reject it.
Leaders of
the major Kurdish parties, a long oppressed ethnic group that
for more than a decade has had a de facto level of autonomy in
the northern part of the country, demanded the veto clause. They
wanted a mechanism by which they could reject any new constitution
that undercuts the autonomy they had nurtured and enjoyed under
U.S. protection after the 1991 Gulf War.
The clause
took time to negotiate since the religious leader of Iraq's Shiite
majority, Grand Ayatollah Ali al-Sistani, feared it would allow
minorities to hijack the democratic process. In the end, however,
he acquiesced, and the Shiites signed the law.
While that
veto clause was drafted with Kurdish demands in mind, each major
constituent group in Iraq -- Shia and Sunni Arab, as well as Kurd
-- would be able to exercise it if its members felt the constitution
fell short of their demands. So participation in the drafting
process appears critical to eventual adoption.
The delicate
balancing act between ethnic groups was strained when many of
Iraq's Sunnis, who controlled politics under deposed dictator
Saddam Hussein, boycotted the elections. The Sunni parties cited
both continued opposition to the interim government and the continuing
insurgent violence that has plagued their regions of the country.
Although the Shia and Kurds who essentially run the government
can appoint Sunnis to the constitutional drafting committee from
outside the government, one challenge the new government faces
is figuring out which Sunnis would be perceived by their community
as truly representative of their interests.
Role of religion
One of the
most complicated issues, according to experts, will be the role
of religion in the formation of legislation, and its influence
on society. The interim constitution provided a measure of guidance,
setting Islam as the official state religion, but guaranteeing
religious freedom for Iraq's non-Muslims. Whether that will satisfy
the Shiite majority -- who are more firmly in power than they
were at the time the interim constitution was drafted -- will
be a strong indicator of how smoothly the constitutional process
will run.
While many
Iraqi Shia have struck conciliatory tones on the role of religion
in official life, Kurds, who are largely secular Sunni Muslims,
have made it clear they will only support a secular constitution.
An early indication
of how this may unfold came during the brief tenure of the Iraq
Governing Council, when several religiously conservative Shia
politicians tried to adopt a more stringent Sharia code of justice
that would have strictly adhered to the Quran and would have negatively
impacted women's rights. Although the attempt was ultimately defeated,
many secular Iraqis fear the issue may be raised again in coming
months.
Remaining roadblocks
But religion
remains only one of several roadblocks. Iraq still faces a bloody
and vigorous insurgency, which could drain the fledging government.
One member of the National Assembly was assassinated on her property
before the prime minister even named his Cabinet.
Iraqis must
also strike a balance between central control and regional autonomy.
Kurds are demanding a federal style government where they maintain
largely autonomous control over their  region
of the country and continue to support their 100,000-man peshmerga,
which stands as the only functional military force in Iraq. Kurds
also seek renewed control of Kirkuk, an oil-rich city which Kurds
say was stripped of its Kurdish majority by Saddam's Arabization
efforts. A resolution that minimizes Sunni Arab control of that
city could mean political strife.
These critical
state-shaping issues will be decided upon in a newly born democratic
institution that experts worry may severely test the country's
commitment to democracy and pluralism. Nathan Brown, a scholar
of Arab politics on leave from George Washington University, has
argued that the platforms various political parties ran on during
the election were so vague and personality-based that there is
little basis to begin a constitutional discussion.
Another major
task remains -- selling the eventual constitution to the people.
Larry Diamond, a former political adviser to the U.S.-backed Coalition
Provisional Authority, said that when he went into the Iraqi countryside
to sell the transitional document, he was met with bitterness.
According to Diamond, people felt they had no input in the process.
To combat
this, the transitional constitution advises the National Assembly
to encourage "debate on the [new and permanent] constitution
through regular general public meetings in all parts of Iraq and
through the media" and by "receiving proposals from
the citizens of Iraq."
All of these
concerns make some wonder if a new constitution is even worth
the risk.
"My sense
is that if the constitutional process doesn't work, that Iraq
would do well to set it aside because a lot of these issues can
be handled practically, for example, the military issue. The Kurds
do have their own military. The Iraqi army doesn't come there.
It's an arrangement that works," Peter Galbraith, who has
been a staunch supporter of Kurdish rights, told the NewsHour
in May 2005. "But if you try to raise the issue to a constitutional
level, the central government will certainly insist that it should
have a monopoly on military power, the Kurds won't agree, and
there will be a deadlock."
But in the end, many experts argue, a constitution is essential
to making sure Iraq is a democracy. Adeed Dawisha, an Iraqi by
birth who teaches at Miami University of Ohio and is writing a
book about modern Iraqi politics, has argued a constitution "lays
the foundations for political action and it makes it difficult
for one political group to literally subvert the political process
because there are no political rules to go back to."
Either way,
Iraq as a unified, federal state faces significant political and
security risks in the near future, regardless of the compromises
reached at the drafting table.
-- Compiled by David Butterworth for the Online NewsHour
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