The Implications Of A Flawed Constitution.

Hopes that Iraq's parliament might find the wisdom and patriotism to improve significantly on a flawed constitutional draft it was handed have evaporated. Provisions which could strip away the legal rights of Iraqi women have been left unchanged. The chances of this language being interpreted benignly by a future legislature dominated by Shiite Arab religious parties or a future Supreme Court packed with senior religious men is less than nil. This is just one of problems caused by a draft constitution presented to the public on Aug. 28 by Talabani before going to Washington this month to meet with President George W. Bush.

In a ceremony marking the end of a tortuous drafting process, Talabani on Aug. 28 said: "The draft constitution...will be presented to the Iraqi people, who are known for their intelligence, to give their verdict on Oct. 15. There are objections from our Sunni [Arab] brothers...but nobody can claim that they represent the whole spectrum of Sunnis. If the nation rejects it, we will write another one".

Negotiators by Aug. 28 had agreed 11th-hour changes to the text in a bid to win endorsement from the Sunni Arabs. But the changes failed to bring them on board. The text was signed by Iraq's three-man presidency, which includes Sunni former president Shaikh Ghazi al-Yawer from the huge Arab confederation of Shammar tribes. The parliament session ended without any vote on the text. In Crawford, Texas, President Bush said the Iraqi people will work together toward a new constitution. Of course there is disagreement. We are watching a political process unfold". After the final draft was formally presented to parliament, US Ambassador Zalmay Khalilzad called it "the most progressive document of the Muslim world".

New amendments have been made to accommodate Sunni Arab demands. The UN, in charge of printing some five million copies of the draft to distribute to Iraqi families before the Oct. 15 referendum, on Sept. 9 said it had not yet received the final text. Nicholas Haysom, the UN official in charge of constitution affairs, said: "We are hoping to receive it at least by Sunday [Sept. 11]". He insisted that the UN needed confirmation that the delivered text was the official one, and the best way was through the Iraqi National Assembly. The assembly is to convene on Sept. 12 enabling a possible ratification of the text.

Confusion reigned about the circumstances surrounding failure to deliver a final copy of the draft to the UN, with some negotiators suggesting different parties were seeking to present different texts. Shiite Arab panelist Baha' al-A'raji on Sept. 9 said among recent changes added to the text, "it has been agreed that Iraq is part of the Arab nation". Article Three of the proposed charter had stipulated that Iraq was "part of the Muslim world, and its Arab people are part of the Arab nation", infuriating Sunni Arabs.

Weeks of discussions with Sunni Arab representatives who had been shut out of the drafting process went predictably nowhere when the Sunnis declined to sign on to divisive designs for federalism and vindictive rules for former Baathist supporters.

A loose federal structure with a weakened central government has an obvious appeal for the Kurdish north-east, which wants as much independence as it can get. It attracts support from Shiite Arabs in the south-east, home to most of Iraq's oil reserves and its main trading ports. But too much federalism would be little short of a disaster for the Sunni Arabs in the western and north-western provinces, which are landlocked and oil-poor. Their fear is that, despite language apportioning the oil revenue by population, the Shiite Arabs and Kurds will manage to maximise their shares.

A fractured Iraq could dangerously destabilise the broader region. Turkish hostility is guaranteed for any Kurdish statelet, which Ankara worries might set an attractive example for Turkey's restive and oppressed Kurdish minority. Iran would find it irresistible to manipulate a semi-autonomous Shiite Arab region dominated by Tehran-financed parties and Iran-armed militias, and spiritually guided by the Iranian-born Grand Ayatollah Ali al-Sistani.

If Iraq starts to fragment along these lines, no one should be surprised to see the orphaned Sunni Arab triangle looking for whatever allies it can find in Baathist Syria, in the Wahhabi opposition circles of Saudi Arabia and among Jordan's Palestinian majority. The threat of civil war is obvious.

Sunnis are wary of constitutional provisions broadly banning former Baathists from political life and forbidding the creation of any new party representing Baathist ideology. Prosecuting the criminal mass murderers and torturers of Saddam's regime is seen as necessary, but banning Baathism in any form could easily turn into a pretext for denying secular Sunni Arab nationalists any effective political voice. The process of creating this constitution was supposed to help draw Sunni Arabs away from the Salafi/Baathist insurgency and towards peaceful political competition, but the provisions drawn up on federalism and Baathism will help undermine any such possibility.

Most Iraqis are not exclusively defined by the narrow religious and ethnic categories - Shiite Arab, Sunni Arab and Kurd - which dominate the constitutional debate. Although a majority of Iraqis are Shiite Arabs, a majority of those Shiite Arabs are either female or secular and should therefore not be counted as automatic supporters of state-enforced Shari'ah law.

There are important differences among the Sunni Arabs, which is one reason it has been so hard to find representative negotiators on their behalf. Banning Baathist political activity will not make this any easier, and it could work to the advantage of radical Salafi/Baathist parties and insurgents.

As The New York Times noted on Aug. 29, the US has "played its secondary part clumsily and sometimes even destructively by encouraging the temporary sidelining of Sunni [Arab] negotiators and by seeming to put arbitrary deadlines ahead of the family and property rights of Iraqi women".

Only Iraqis can produce a document which will give them a constitutional democracy, rather than a civil war. The real message from the recent deliberations is that they have seemed unwilling, or perhaps unable, to do so.

On paper the constitution is an example of democratic progress in the Middle East. It strikes a balance between human rights and the country's Islamic tradition and guarantees the freedom of the judiciary. But on the insistence of Islamist Shiite Arab parties, dominant in the current government, the text uses the same terminology as that of several Arab charters, stipulating that Islam is "a main" source for legislation. Egypt's constitution, for example, goes further, stating that Islam is "the" main source of legislation. A more ambiguous, and potentially problematic, clause in the Iraqi constitution is that no law may contradict the standards of Islamic jurisprudence. Sunni and Shiite Arab religious leaders may have difficulty agreeing on what that means.

Most constitutions in the region guarantee respect for human rights and freedom of expression, but these clauses are rarely applied in practice. Even the Iraqi constitution which existed under Saddam's Baathist dictatorship banned all form of discrimination and promised to uphold freedom of expression.

The new charter was written in a country riven by a brutal insurgency and teetering on civil war. Anthony Cordesman, Middle East expert at Washington's Centre for Strategic and International Studies, has said: "Rather than an inclusive document, it is more a recipe for separation based on Shia and Kurdish privilege". Cordesman argued that the constitution could divide the Iraqi military, security and police forces along ethnic and sectarian lines, and undermine the loyalty of the Sunni Arabs in these services.

Whether ratified or rejected by Oct. 15, the constitution could have a damaging effect. Approval by the electorate would aggravate Sunni Arab grievances and pit Iraq's communities more fiercely against each other.

Rejection, which now would seem to carry serious risks, may in effect set an opportunity for the Iraqis of all three main groups to draft a better constitution. According to the Transitional Administrative Law (TAL), the interim constitution agreed in 2004 with US help, a two-thirds No vote in three of Iraq's 18 provinces - at least that many are predominantly Sunni - would nullify the charter. If this happened, Iraq would have new elections and a new committee would set about redrafting the constitution. This may not be such a bad outcome, given that the Sunni Arabs, who either boycotted the Jan. 30 parliamentary elections or were too afraid to vote, are now more likely to participate in the political process.

However, there is a danger that rejection of the constitution would throw Iraq's fragile political process into further disarray, prompting Shiite Arabs and Kurds to ignore the TAL and the stipulation of new elections and setting the stage for wider strife.