The Iraqi Constitution: A Closer Reading
Iraqi school girls hold up pro-constitution posters after they were handed out by teachers in the southern city of Basra, just weeks ahead of an Oct. 15, 2005, vote on the document. The posters read: "We build our country when we join hands; one future one country." Corbis
The proposed Iraqi constitution goes to a public vote on Oct. 15. It could be the key to a free and prosperous Iraq. Or it could be the event that sends the country into open civil war.
The overarching issue that the constitution must address successfully is the relationship between the Iraqi government and its three main interest groups -- the Kurds, the Shia and the Sunnis.
Islamic law scholar Kristen Stilt looked at the constitution for NPR.org and concludes that many of the tough questions -- federalism, the role of Islam in government and the sharing of oil revenues -- remain largely unanswered. She says that the constitution seems purposefully vague in many places and that the ultimate relationship between the Kurds, Shia and Sunnis will likely be determined by the legislature and the courts of Iraq.
Islamic Law and the State
Art. 2(1) and 2(1)(a): Recognizes Islam as the religion of the state and the basic source of lawmaking, and also states that no law may be enacted that contradicts the immutable rulings of Islam.
Recognizing that Islam is the religion of the state is a symbolic provision; this language appeared in all of Iraq's previous constitutions and it is typical language for most Muslim-majority nations without having any real meaning in practice.
Arts. 113-122: Recognize a balance of power between the federal government and the provinces of Iraq, although they leave many details to be determined by the Council of Representatives.
The constitution provides for the possibility of one or more of Iraq's 18 provinces to form together into regions that would have greater local power than any one province would have on its own.
Arts. 109-110: The constitution states that oil and gas are the property of all Iraqis in every region.
Distribution of revenues from oil and gas produced from existing fields will be made throughout the country according to population, although disadvantaged regions are given the opportunity for extra revenue.
The Rights of Women
Art. 14: Provides that Iraqis are equal before the law without distinction based on sex.
This provision assures women that they have at least a textual guarantee of equal legal treatment. How this will be interpreted, however, especially in conjunction with other provisions of the constitution, is a crucial open question.
Arts. 47-63: Establish the Council of Representatives as the primary legislature.
The Council of Representatives will contain one seat for each 100,000 Iraqis. The representatives are elected in a single-district direct election. Since the constitution requires the Council of Representatives to determine many open issues, its membership will be instrumental in shaping the political and legal system of Iraq.
The Supreme Federal Court
Arts. 85-99: Sketch the basic structure of the judiciary, leaving many important details to be determined by the Council of Representatives.
The constitution emphasizes the protection of judicial independence from the executive and legislative branches. The Supreme Federal Court has the power to interpret the text of the constitution and invalidate laws as unconstitutional, and thus is a key institution.
The Draft Iraqi Constitution
The Associated Press has translated the draft Iraqi constitution. The constitution consists of a preamble and 139 articles. The document, as presented here, is 33 pages long.
Islamic Law and the State
This Article overall is fairly vague and is clearly the product of compromise among the drafters on the role of Islam in the state system.
The statement that Islam is a basic source of legislation is weak (another formulation that had been under discussion was to make Islam the basic source of legislation) because it clearly implies that there are other sources of legislation.
On its face this language has no obvious substantive meaning. Islamic law is not a code of laws upon which all Muslims agree. In addition to differences of interpretation between Sunni and Shiite Muslims, there are differences within each of these two broad groups, such that often no one interpretation is accepted by all. The elected members of the legislative body provided for by the constitution, the Council of Representatives, will have to determine how they want to incorporate Islamic laws into legislation before we can gain a better sense of the meaning of this clause.
The clause of Art. 2(1)(a), "No law may be passed that contradicts the immutable rulings of Islam," exhibits the same kind of vagueness as contained in the clause discussed above. Islamic scholars differ on the meaning of "immutable rulings of Islam." The Supreme Federal Court will be responsible for determining in the context of an actual case if a law is unconstitutional on these grounds.
The issue of federalism developed from Kurdish desires to maintain some autonomy in the areas that the Kurdish regional government has essentially controlled since the early 1990s. In deference to Kurdish demands, the constitution acknowledges the control of the Kurdish regional government in the Kurdish-dominated provinces in north and northeastern Iraq and recognizes this confederation of provinces as a "region."
The Shiite drafters realized the potential of amalgamating provinces into regions and successfully included this possibility in the abstract into the constitution. This provision concerns Sunnis, who fear that the Shiite majority in the south could form as many as nine provinces into a region, thus leaving Sunnis with only a small area of non-oil producing territory in the center of Iraq.
The constitution provides very little detail about the powers these regions will have, and tasks the Council of Representatives with determining the exact powers of the regions as well as the mechanism for the formation of provinces into regions.
These articles reflect a careful balance between the federal government and the provinces and also among the provinces.
Art. 110 contains an important provision that most likely benefits the Kurdish and Shiite areas, which contain most of the oil and gas yet arguably were the most economically disadvantaged in the Saddam Hussein era. After recognizing the general principle of proportional distribution of revenues, Art. 110 states that an additional allotment of the revenues will be given to regions that were damaged or unjustly deprived under the former regime. Subsequently, additional allotments may be given to areas in order to ensure equal development throughout the country.
The constitution does not specify how to make these determinations, but leaves the details to the Council of Representatives to legislate.
This possibility of additional allotments is best understood as an effort by the Kurdish and Shiite drafters to establish that they will receive an increased share of the revenues for some time, while still appeasing the Sunni drafters by recognizing the general principle of national revenue distribution on the basis of population. The Kurds and Shia will claim that they were the most disadvantaged by the previous regime and thus entitled to extra revenue now.
The Council of Representatives and the Supreme Federal Court will play a significant role in determining how this system will work and interpreting the terse language of these provisions.
The Rights of Women
Advocates of the rights of women have been concerned that the constitution might provide that rules of family law -- which includes topics such as marriage, divorce, and inheritance -- should be derived directly and narrowly from Islamic legal rulings and that Islamic legal scholars should be responsible for interpreting and implement these laws.
The constitution allays these concerns to some degree in Art. 39, which is a creative compromise between groups wanting Islamic law to play a larger role in family law matters and those wanting it to play a lesser or at least not a more significant role.
Art. 39 states that Iraqis are free to choose their applicable family laws according to their own religion, denomination, belief, or choice, to be determined by law. This provision suggests that Iraqis who want religious law to apply may elect that option and may further choose if they want to be governed by Sunni or Shiite law or by the law of other religious groups or sub-groups.
The inclusion of the provision "according to their choice" suggests that Iraqis who want non-religious law to govern their family law matters may choose this option, which could include the current Iraqi Family Law Code, which is Islamic inspired but contains innovative provisions in an effort to achieve equality between men and women, or even a completely secular family law code, if the Council of Representatives were to adopt one.
The extreme vagueness of this Article, however, along with the current absence of a secular family law code, means that the Council of Representatives will play a large role in defining family laws in the future.
A single-district legislature will benefit those groups and parties with the largest nation-wide appeal, i.e. the Kurds and Shia. Between these two groups, they won the vast majority of seats in the transitional National Assembly, the legislative body responsible for the preparation of the constitution, although their massive victory was due in part to a wide-spread Sunni boycott of those elections. Nevertheless, if this legislative system worked once to the advantage of the Kurds and Shia, they are hopeful that the Council of Representatives will replicate that advantage.
The criteria for membership on the Council of Representatives are fairly straightforward with the exception of one requirement tucked away in Art. 135, a completely different section of the constitution. If a would-be member of the Council of Representatives was a member of the Ba'th Party, he or she must have left the party 10 years prior to its collapse in order to be eligible for a seat in the Council of Representatives. While Sunnis were not the only members of the Ba'th Party, they constituted the majority of its membership, and this provision, along with the ongoing de-Ba'thification program in Iraq, is an additional irritant to Sunnis.
As another example of how the constitution leaves many issues undetermined, Art. 63 provides for a second legislative house, a Council of Union, but gives no specifics for the composition or jurisdiction of this body, leaving these determinations to the Council of Representatives.
The Supreme Federal Court
Regarding the composition of the Supreme Federal Court, the constitution states only that its members will include a number of judges and experts in Islamic law and general law.
The Council of Representatives should pass a law by a two-thirds majority to specify the number of judges, how to select them, and the procedures of the court.
This lack of specificity in the constitution is clearly the result of negotiations among many interest groups on the drafting committee, with some wanting no or minimal participation by religious scholars on Supreme Federal Court and some, mainly the Shiite members, wanting their extensive participation. Given the crucial role the Supreme Federal Court will play in determining the meaning of the many vague provisions of the constitution, its membership is a crucial unknown at this point.
Professor Kristen Stilt teaches at the University of Washington School of Law. Her specialty and main area of research and writing is Islamic law, in its classical formulations and contemporary applications.