Constitution Sparks Debate on Viability

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By Robin Wright
Washington Post Staff Writer
Thursday, August 25, 2005

The Bush administration endorsed Iraq's proposed new constitution yesterday, but analysts warned that some provisions can be interpreted to undermine everything from the distribution of political power to a secular judiciary, from women's rights to fair distribution of oil revenue.

Even before a vote on the draft in Baghdad, due today, a divisive debate has emerged about the document's viability -- and whether it will provide a new model for Middle East democracy or whether it will make Iraq vulnerable to either civil war or Islamic rule.

The administration praised the Iraqi process and product. "In terms of providing fundamental rights that are protected, we feel confident that this will be a document that Iraqis will be proud of and the world and America will be impressed with and proud of also," said Elizabeth Cheney, deputy assistant secretary of state for Near East affairs.

But experts on Iraq and constitutional law warned that the current draft does not do enough to heal divisions or ensure rights for Iraq's disparate ethnic and religious groups or minorities.

"It may well be more of a prelude to civil war than a step forward," Anthony H. Cordesman said in an analysis for the Center for Strategic and International Studies. The draft heavily favors southern Shiites and northern Kurds -- in both political power and oil revenue -- while offering inadequate incentives to Sunnis, he said. "Rather than an inclusive document, it is more a recipe for separation based on Shiite and Kurdish privilege."

Even legal experts who support the draft are concerned about provisions for the 20 percent Sunni minority. "A constitution that is a deal between the Shiites and Kurds is not a deal," said Noah Feldman, constitutional adviser to the U.S.-led occupation government and adviser to Iraqis who wrote the interim law.

Specific parts of the draft constitution are under scrutiny, particularly the balance between democracy and Islam. Two provisions symbolize the issue: One says no law can contradict Islamic principles. The other says Iraq's supreme court will include a number of experts on sharia, or Islamic law.

Defense Secretary Donald H. Rumsfeld said Tuesday that the draft is consistent with the nation's heritage and religion, like Afghanistan's constitution, and "will require a respect for democratic principles and the rights of women and minorities."

But other Iraq experts fear that conservative Islamic tenets will often prevail. Unclear are the role and powers of the clerics on the nation's top court and their numbers, said Rend Rahim Francke, until recently Iraq's top envoy in Washington, at a U.S. Institute of Peace conference Tuesday. She just returned from constitutional talks in Baghdad.

"The constitution is not only a disaster for a lot of the people who share the secular democratic perspective, whether Sunni, Shiite or Kurdish. It's also leading to some version of a sharia state . . . not necessarily a theocracy but certainly a state where there is a dominant role for Muslim clerics," said David Mack, a former U.S. diplomat who served in Iraq in the 1960s and 1970s and is now vice president of the Middle East Institute.

Women's rights are pointed to as a barometer of freedoms. The draft guarantees 25 percent of legislative seats will go to women, which Feldman noted is higher than in the U.S. Congress. But Francke said women failed to extend that representation throughout government.

A senior State Department official said the draft prohibits discrimination based on gender, race, ethnicity, origin, color, religion, sect, opinion or economic and social status. But Iraq experts say that women are vulnerable because issues -- such as divorce, custody and alimony -- may be decided either in civil courts or according to Islamic law. "Just imagine if a Shiite couple are seeking a divorce," Mack said. "She can get a divorce under the civil code and with difficulty get it under Shiite law, but no alimony or child custody [for children] above a certain age. . . . This is a recipe for real problems."

Feldman compared the provision to the practice in Israel, where family issues can be resolved based on religious law.

Another key issue is Iraq's militias. The draft says the central state will control all armed forces. But the reality is that the Shiite and Kurdish militias are the de facto security forces in their territories and are loyal to their own political leaders -- a reality unlikely to change anytime soon, Iraq and law experts say.

U.S. officials also acknowledge that a constitution will not ensure security. "Regrettably, completing the constitution is not likely to end all the violence in Iraq or solve all of the country's problems," Rumsfeld said. "But it will represent one more important step towards cementing a new way of life for Iraqis, one ruled by ballot boxes rather than by death squads."

The biggest issue is likely to be how the government elected in January implements the constitution in new laws, said Nathan Brown, Arab constitutional expert at the Carnegie Endowment for International Peace. Several Arab countries have good constitutions that are abused, violated or ignored.

U.S. officials said Iraq is different. "What the people of Iraq have accomplished to date is historic and impressive, and we're confident that they'll put that same commitment and dedication to work in enacting the laws that will enforce this constitution," Cheney said.

But Iraq under Saddam Hussein and his predecessors also had a "perfectly fine constitution" that had "no bearing on the conduct of the state," said Kenneth M. Pollack, a former Bush and Clinton administration staffer now at the Brookings Institution Saban Center.

Staff writer Josh White contributed to this report.


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