Iraq’s proposed constitution… oddly incomplete

BAGHDAD—Last night’s drama at least left us with a draft of Iraq’s new constitution sitting on someone’s desk. And despite some protests that the Iraqis again broke the law of the TAL, I don’t think they did. The amended TAL said the draft had to be submitted by Aug. 22 for approval. There’s nothing in the TAL, at least as near as I can tell, that requires an approval vote on that date. Which is why I was mystified that so many news reports headlined their stories with “Assembly fails to vote on constitution!” Well, duh. They weren’t required to. As long as they’re able to hold a referendum on Oct. 15, there seems to be nothing legally improper with waiting until Oct. 14 for parliamentary approval. That would be impolitic, yes, but sometimes the law is an ass.

I wouldn’t be surprised if this three-day consensus-building period gets extended some more, as there’s nothing preventing it. Also, there’s nothing in the TAL forbidding amending the draft after it’s turned in. Since it’s not forbidden, the National Assembly—again, theoretically—could amend the damn thing willy-nilly. And this is not just my judgment but the opinion of lawyers here on the ground specializing in international and constitutional laws.

However… the AP published a thoroughly incomplete draft, which the New York Times has now also published. For instance, there’s no mention of a judicial branch, thanks to large chunks just being left out. For instance, Articles 6, 8-34, 38, 40-65, 67-74, 76-103, 105-106, 108, 111-113, 115-116, 119, 121-127, 130-134, 136-143, 146-150, 152 and possibly anything after 153 are simply not in the English drafts yet. The draft in al-Sabah, a government newspaper, is much more complete and—shockingly—”good” according to A., my extremely gruff and cynical office manager. Shocking because he hates everything. To hear him say it’s “good” has to be a good sign, although he immediately began complaining about the official language. “I hate this shit,” he said. Yes, yes, A. I know.

Anyway, we’re piecing together a translation, but so far it’s not bad. There seems to be no role for the Shi’ite hawza, women are mentioned in almost every clause that guarantees rights, the court system is independent and liberal. Islam is the official religion and “a main source of legislation,” but religious minorities are guaranteed freedom of worship. However, no law may contradict the principles of Islam, democracy or the rights and freedoms mentioned in the constitution, which sets up an immediate contradiction when you get to the rights of women. Under some schools of Islamic jurisprudence, women’s testimony are worth only half as much as a man, and they get half the share of inheritance that men get. Their custody of children can be easily abridged and marriage and divorce can be a nightmare for them. Under a human-rights focused democracy, all people are equal before the law. So what takes precedence in a dispute? The Qur’an or the Constitution?

Federalism is a big part of the constitution, which will upset the Sunnis. At least they’re still in the game by threatening to vote it down instead of blowing stuff up. That’s an improvement even if they manage to scuttle it in October. (I don’t think they have the numbers to do that, though.)

I’m sure there are more legal land mines a-plenty, but I’ve not been able to reach any lawyers who’ve seen a complete draft for analysis. Maybe later today.

[UPDATE 8/23/05 17:35 +0300: I’ve got a piece on on some of the issues here.]

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