Next Steps for Iraq's Constitution Authors

Madeleine Brand talks with constitutional scholar Noah Feldman, a professor at New York University and advisor to Iraq's now-defunct Coalition Provisional Authority, about the contents of Iraq's draft constitution. The document proposes greater autonomy for Shiite Muslims and Kurds, and many Sunni Muslims feel left out of the political process.

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MADELEINE BRAND, host:

From NPR West, this is DAY TO DAY. I'm Madeleine Brand.

Coming up, why the Iraqi constitution may cause more unrest in that country. We'll speak to a leading Iraqi Sunni about why he objects to the document.

But first, President Bush today attacked critics who want US troops to be brought home from Iraq immediately. He accused them of advocating a policy that would weaken the United States. The president, speaking to reporters in The Tamarack Resort in Idaho, also praised Iraq's efforts to approve a new constitution.

President GEORGE W. BUSH: We're watching an amazing event unfold, and that is the writing of a constitution which guarantees minority rights, women's rights, freedom to worship in a part of the world that had only--in a country that only new dictatorship.

BRAND: Iraq's leaders face a deadline of Thursday to approve the constitution. Noah Feldman is a law professor at New York University. He has advised parties on the drafting of the country's interim constitution. I asked him whether this constitution achieves the goal of creating a blueprint for democracy?

Professor NOAH FELDMAN (New York University): It does provide those basic directions, and that's crucially important. It also guarantees the equality of all citizens, men and women, Muslims and non-Muslims, and it protects basic rights. That said, it does not achieve what's probably the most important goal of any constitution, and that is producing some sense of national consensus among the major demographic groups in the country. Because at least so far, Sunnis have not fully bought into the constitution, even though Shia Arabs and Kurds are, on the whole, supportive of the draft.

BRAND: And what is it that they object to?

Prof. FELDMAN: They object primarily to a provision that says that any of Iraq's governorates--there are 18 governorates--can get together and form themselves into a geographical region, which will then have substantial power vis-a-vis the central government. They've more or less come to terms with the fact that Kurdish governorates in the north are going to gather together to form a Kurdish region, which has basically existed already practically speaking for most of the last decade. But the Sunni Arabs have not fully accepted the possibility that in the southern part of the country, which is Shia dominated in which there is a great deal of oil, will see the banding together of different governorates to found a kind of large mega-region, which would control a great deal of oil and would potentially be adverse to the interests of the Sunnis, who mostly, though not exclusively, live in the center of the country.

BRAND: A lot of people were worried that this constitution would make Shariah or Islamic law dominant. Is that what, indeed, happened?

Prof. FELDMAN: Islamic law is central to the document. The constitution says that Islam is the official religion. It says that Shariah is a main source of legislation or, you might translate as, a principal source of legislation. It also says that no law passed by the new government shall contradict the principles of Islam. And yet, at the same time, it's also a democratic constitution, guaranteeing equality and stating that no law shall contradict the principles of democracy or the basic freedoms that are guaranteed in the constitution. So what we're seeing is an experiment in a new kind of democratic government, what you might call Islamic democratic government. It wants to be truly Islamic in a very thoroughgoing way, but simultaneously true to the principles of democracy. And that's a very great challenge for Iraq to take on. On the other hand, it's a very significant historical fact that they're trying that.

BRAND: Well, is it a contradiction?

Prof. FELDMAN: There will be tensions between these two sides of the equation for certain, and individual cases will raise them. So, for example, let's imagine that the legislature passes a law that says that family law shall be governed by classic Islamic law, and that makes it harder for women to initiate a divorce than it does for men, and women come to the courts and say, `Look, we're equal citizens, according to this constitution, and this principle of Islamic law violates our equality.' It will then be up to the court and perhaps the legislature to figure out what the right balance between these things might be. So there will be tensions, but I do not believe that it's a fundamental contradiction. If fact, to the contrary; many, many people in the Muslim world increasingly believe--not all, but many increasingly believe that Islam and democracy are wholly compatible with one another.

BRAND: But it does not specifically outline the rights of women.

Prof. FELDMAN: It, in fact, does say that women are equal to men, a provision which notably is absent from our US Constitution, and the draft also guarantees that 25 percent of the seats in what will be a national legislative body, the so-called Council of Deputies, are reserved for women. There's a set-aside of 25 percent of the seats in the legislature for women. Again, that would put the Iraqis well beyond where women are in the national Congress and Senate in the United States.

BRAND: What does it mean when--in the document where it says Iraq is part of the Islamic world and Arabs part of the Arab nation?

Prof. FELDMAN: That's a classic compromise formulation. Traditionally, in recent years at least, Iraq has always identified itself as an Arab nation, as part of the Arab world, and throughout the Arab world at various times, the ideology of pan-Arab identity has been very, very significant. However, the Kurds in the northern part of the country are not Arabs. They speak a language other than Arabic. They're ethnically distinct from Arabs, and they are, of course, a substantial part of this new nation, and they objected to the idea that Iraq would include language saying that the new constitution would include language saying that Iraq was part of the Arab world. So they came up with this compromise, which says, rather, that those Arabs within Iraq are part of the Arab world; thereby giving each side something that it was looking for.

BRAND: There are several statements in this constitution restricting the Baath Party. What's that all about?

Prof. FELDMAN: The Iraqis are well aware that in the former Soviet Union and other Eastern European countries, after several years have passed since the collapse of communism, Communist parties essentially re-emerge, sometimes under a new name, sometimes even occasionally under the old names, and regained a substantial amount of political power in some instances. They don't want that happening in their own country. They're concerned that the Baath Party remains organized in Iraq sort of under the surface and that it, in fact, plays some role in the insurgency. And they want a strong, not just symbolic but practical statement prohibiting that political organization from re-emerging in organized politics.

BRAND: But the Sunnis, I understand, object to that, thinking that it singles them out for persecution.

Prof. FELDMAN: Sunnis are very concerned that the label Baathist could be used to exclude them from good government jobs, from government resources and from political participation. And, indeed, the Baath Party was disproportionately Sunni. Not every Sunni was a member of the Baath Party, but there were many more Sunnis in the party than there were Shia or Kurd. So that remains a real possibility, and the trick here is to balance a very natural desire for doing justice and overcoming the fact that the Baath Party really was the mechanism through which--one of the most important mechanisms through which Saddam dominated Iraq, with the need for practical reconciliation going forward. So the de-Baathification issue has become, in the minds of many Sunnis, a kind of stand-in for the question of how they will be treated in the new Iraq.

BRAND: New York University law professor, Noah Feldman, thank you for joining us.

Prof. FELDMAN: Thank you for having me.

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