Drafting of Constitution and Adopting it may take 18 Months or More

The Constitutional Preparatory Commission in Iraq, which was supposed to make its report on Tuesday recommending how the new Iraqi constitution should be drafted, has failed to reach agreement. The main issues are whether the drafters are to be elected or appointed, and how much the constitution will incorporate Islamic law. The Commission, which has been working on this problem for weeks, consulting with Iraqi notables and holding town hall meetings in various cities, dumped the hard issues back in the lap of the Interim Governing Council (al-Zaman, AFP).

The IGC took weeks to decide that it could not appoint one of its members president, and would instead have a cumbersome 9-man rotating presidency with each incumbent serving for one month. This deeply divided body, which is averse to making tough decisions, is highly unlikely to take the bull by the horns and be decisive in choosing a method.

Even once a constitutional convention is called, Iraqis on the IGC are saying that it is highly unrealistic to expect it to finish its work within 6 months, as called for by US Secretary of State Colin Powell. They think more like a year will be necessary. And Adil Abdul Mahdi of the Supreme Council for Islamic Revolution in Iraq said that it could take four to seven months just to adopt the constitution! Powell believes that elections could be held six months after the constitution was adopted, which would put us in late summer, 2005. But it seems entirely possible that the process could be delayed into 2006. The Shiite Supreme Council for Islamic Revolution in Iraq belittled Powell's deadline of six months (it is represented on the IGC by Abdul Aziz al-Hakim).

The IGC is divided about whether the drafters of the constitution should be elected or appointed, with the Shiites tending to favor election (they are 60% of the population and so would dominate the process). Grand Ayatollah Ali Sistani issued a fatwa last summer insisting on the election of the drafters. Fuad Masum, a Kurdish member of the PUK and first prime minister of autonomous Kurdistan, is chair of the constitutional committee, and he said that although it would be better to elect the drafters, if that would take too long another method must be found. In contrast, Ibrahim Jaafari, an IGC member from the expatriate London branch of the Shiite al-Da`wa Party said that Sistani's fatwa was in accordance with Islamic law and was supported by the majority of Iraq's political parties.

Although the IGC itself is largely secular or moderate, having been appointed by the Americans, many, many Iraqis want the constitution to be based on Islamic law. Izz al-Din Salim, a former member of the Shiite al-Da`wa Party from Basra, called "unlikely" the prospect that the constitution would be based on Islamic law or shariah, according to al-Zaman. (The Basra branch of al-Da`wa is said to have rejected Khomeini's notion of the rule of the jurisprudent, and Salim may in any case now be an independent). He added that the constitution must recognize the pluralism and religious diversity of Iraq.

Apparently the US wants the constitution drafted while it is still in control, to make sure it reflects the principles the US wants to impose on Iraq, including extreme laissez faire economics, parliamentary democracy, and safeguards for the rights of women and minorities. But if the Iraqis drag the process of drafting the constitution out for a year or more, and if elections are two or three years off, that would leave a highly unpopular Coalition Provisional Government in place for a very long time, trying the patience of the Iraqi public.

The US should just re-adopt a non-monarchical version of the 1925 constitution and hold elections under it, and let the drafting of a new constitution unfold over coming years in accordance with the desires of the Iraqi public. That way, we could have a new, elected, Iraqi government as soon as January, and the severe problems of legitimacy would be solved. The US will lose some control, and will risk having Iraqis elected that it doesn't like, but the parliament will be diverse enough to make it hard for, say, a pro-Iranian faction to just take over the country.