Assyrian Government Network

The Future of Democracy in Iraq through a Sensible Constitution

Posted: Tuesday, February 03, 2004 at 06:38 AM CT


The Iraqi Governing Council (IGC) was established by the Coalition Provisional Authority Administrator L. Paul Bremer on July 13, 2003 . The IGC began to prepare the path for the transfer of sovereignty to Iraqi people and paving the road for the writing of Iraq 's new constitution. The IGC issued a political declaration on July 22, 2003 . The declaration emphasized that Iraq must be democratic, free, pluralistic, and federal. Article 3 declared that the declaration respects the Islamic identity of Iraq since the majority of Iraqis were Moslem; however, the rights of all Iraqis, regardless to their race, ethnicity, or religion were guaranteed through the constitution. On August 18, 2003 , the IGC created a Preparatory Committee for Constitutional Process in order to study all aspects related to the most acceptable, scientific, practical, logical, and fair manner of writing Iraq 's new constitution. This preparatory committee needed to find as well the ways and means in order to select the members who will write the constitution, taking into consideration the recommendations of this preparatory committee.

Dr. Hikmat Hakim is one of the 25 members of the Preparatory Committee for Constitutional Process. He graduated from the University of Basra , College of Economics and Law / Law Branch. Hakim worked as an attorney from 1970-1973 in Baghdad . Soon after, he traveled to Moscow and obtained his Masters and Ph.D. in Law and constitutions. Dr. Hakim, the ChaldoAssyrian representative in this committee is visiting the United States and he presented a speech in Detroit on January 7, 2004 . He started his lecture by stating that some media outlets, where radio, TV, or Internet, have claimed that the Governing Council was formed on sectarian basis that did not represent the Iraqi people. The reality is, Dr. Hakim states, that Iraq consists of Arabs, Kurds, Turkomen, Chaldeans, Assyrians, Mandeans, Armenians, and others; this is the fabric of Iraqi society. If that is the case, why do some propagate that the Governing Council is sectarian? This is the Iraqi reality; the members in the Governing Council represent this fabric.

After the preliminary discussions by a group within the Iraqi Governing Council (IGC), four options emerged about the new Iraq constitution, the foundation of any democratic state:

  1. Direct Election: Certain groups within the committee began to press for taking direct census and then holding direct elections. However, the United Nations' expert declared that conditions were not ready in Iraq to carry on census process. Iraq 's progress was not possible to be held back until census were taken since that might take up to three years to prepare. Furthermore, the cost of census undertaking is around $75 – 100 millions, money that is much needed in the rebuilding process. Most importantly is that there are four million Iraqis outside Iraq and they need to be part of this process and the Iraqi embassies abroad are not yet capable to undertake such process.
  2. Partial Elections: This suggestion is based on the foundation that elections should be conducted on the provinces level. Meaning, each province of the 18 Iraqi provinces will hold its own elections by picking a council from the various ethnic and religious groups, in addition to technocrats, educated and notables. Then a person out of these councils will be elected by the council itself. The number of these elected representatives will depend of the population of that specific province; for example, one representative for every 100,000 of the population.
  3. Duel Structure: In this system it was suggested that the Iraqi Governing Council would select experts in constitutional law, politics, economics, and sociology who will write the draft of the constitution, then that draft was to be voted on it on the national level.
  4. A last option was that experts would write a two-years temporary constitution (now coined Iraq Transitional Administrative Law).

After many discussions, the last option was adopted. The IGC and the Coalition Provisional Authority (CPA) reached an understanding on November 15, 2003 to set a timetable for the restoration of full Iraqi sovereignty and present the Transitional Administrative Law by February 28, 2004 .

Dr. Hakim explained how the whole process of paving the road for the writing of the constitution began and where it stands today. The committee, which he was part of, began its activities by traveling to all the 18 Iraqi provinces and communicating with many Iraqis of various groups to get their feedback regarding this matter.

The Transitional Administrative Law will emphasize, states Dr. Hakim, on democracy, freedom, pluralism, and federalism. Furthermore, there must be a separation between the legislative, judiciary, and the executive branches of government. There is a consensus among the 25 members of the constitutional preparatory committee on other main issues, such as guaranteeing certain basic human rights for all Iraqis. The Transitional Administrative Law will stress a respect for the Islamic identity of Iraq since Islam is the religion of the majority in Iraq . However, it will provide guarantees for religious freedom for other non-Moslem groups; it will assert the separation between the various branches of government; and it will ensure that civilians will administer the Iraqi army (similar to that in the United States). Furthermore, there is a consensus among the preparatory committee for the writing of the constitution that the Kurdish formulation that Iraq is made of two main ethnic groups Arabs and Kurds is rejected; such statement will not see its place in Iraqi constitution despite the Kurdistan Democratic Party (KDP) own version and suggestion of the constitution. Additionally, the term minorities will not be used to reflect the smaller ethnic groups in Iraq . Dr. Hakim stated that all Iraqis are equal in the eyes of the law; the duties undertaken by the Arabs and the Kurds are not heavier or superior to those applied on the other ethnic groups; therefore, there shall be no primary and secondary ethnic groups in Iraq .

However, two problems arose while brainwashing the structure of the future constitution: one religious and the other ethnic in nature. About the first problem, few members of the IGC refuse to accept the consensus and logic; they demand that Islam be the official religion of the state. Others demand that the Islamic Shari'aa law be the main source for law in Iraq . Dr. Hakim elaborated on this issue further. If Islam, he says, became the official religion of Iraq according to the new constitution, then there must exist special provisions in the constitution that guarantees the complete rights of the non-Moslems and clarifies that a non-Moslem could hold any position in Iraq , including the presidency of the land. Democracy could not be achieved if one certain ideology was considered superior over another; and Shari'aa is an ideology where it depends on the Koran. Demanding the Shari'aa to be the only source of laws in the land overrules any serious claim for democracy since one specific ideology could not rule over all population. If that is the case, the Communists could demand that Marxism be the source of law and the pan-Arabs could demand that the Nasirate national ideology be the source of the land. Since politics is the art of executing the conceivable, the various groups must learn how to give and take; Iraq could not accomplish democracy if all its groups did not learn how to give-up on certain thing or give up one thing in order to get another.

The other problem is ethnic in nature. The Kurds are demanding federalism. The consensus is with a federal system in Iraq , however, the thoughts varies from one group to another about the shape of this federalism. The Transitional Administrative Law will not get into the details of this governing system at this moment; i.e. whether the federal Iraq will be geographic, ethnic, or along the provinces.

About the Iraqi National Assembly (The Legislative Assembly), Dr. Hakim states that local caucuses from each of Iraq 's 18 provinces will convene to elect delegates from among their groups to participate in the Iraqi Transitional National Assembly. This should be accomplished by May 31, 2004 . Then, by June 30, 2004 , the Iraqi Transitional National Assembly will convene to elect its leaders and assume full sovereignty for Iraq , and national elections by the end of 2005, according to the Coalition Provisional Authority (CPA) web site.

In each Iraqi province, a committee of 15 members will supervise these elections (Organizing Committee). These 15 members will be selected as follows: five by the IGC; five by the city councils; and five who will represent the biggest administrative units in the province. These members will have to qualify through certain conditions.



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