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The Shadow of the Constitution over the Future of Iraq

The Fundamental Law does not assure stable and clear bases for the new institutional process that the country needs. Many points regarding federalism and the national identity remain unresolved. The words that consecrate the role of Islam leave areas of heavy ambiguity, whilst the request of the Christian Churches to apply the principle of citizenship has not been heeded. The 'status of the person' has been recognised.

It was a very difficult birth but in the end, on 28 August 2005, the parliament of Iraq finally approved, of necessity and without a debate, the text of the Constitution. But the contentious points were decided outside parliament. And the matter is not yet over because it is envisaged that the Constitution will be amended after the elections of 15 December 2005. The disagreements had accumulated and had polarised around some twenty points of disagreement (1), which everyone considered strategic, and all compromises and arrangements were rejected. The Constitution was approved by referendum on 15 October 2005. A brief description of the Constitution now follows.


The preamble. This refers to the secular and religious heritage of Iraq, the heir to Mesopotamia. The Constitution states that Mesopotamia 'is the homeland of apostles and prophets, the dwelling of 'pure imams' and the founders of this civilisation, which produced the first legislative code (2).


The official name of the state of Iraq. Which definitions were to be applied to this state? The Shiites were in favour of a state described as being Islamic, a denomination that the Kurds and secular people rejected. As regards the Sunnite Arabs, they requested that the name be simply the Republic of Iraq, In the end it was this name that prevailed (art. 1).


The ethnic components of the Iraqi people. It is stated that the Iraqi people is made up of a number of nationalities, religions and confessions (art. 3), whereas the previous text laid down that the country is made up of two 'principal' nationalities, the Arab nationality and the Kurd nationality, and of other 'fundamental' nationalities: the Assyrians, the Chaldeans, the Syriacs, the Turcomans (about 200,000), the Armenians (30,000), the Yezids (3), the Sabeans (or Mandeans who speak the Eastern Aramaic tongue: about 50,000), and the Shabaks (4), all of whom have equal rights and duties. Some people even wanted to add the Persians, a term whose contents, however, remain imprecise (5). The Faylian Kurds protested at not being listed.


The national identity of the country and its range. The Constitution states that Iraq is 'part of the Islamic world' (art. 3) and that only the 'Arab people of Iraq' forms a part of the Arab nation (art. 3). This formulation is absurd because it leads one to think that Iraq is at one and the same time both Arab and non-Arab! It is also grave because it could be a prelude to a partition on ethnic and confessional grounds. However, this clause provoked the ire of the Secretary General of the League of Arab States, 'Amr Moussa, and the concern of the Council for the Co-operation of the Gulf States. In an attempt to satisfy Arab circles, this article was modified on 14 September and the clause which laid down that only 'the Arab people of Iraq forms a part of the Arab nation' was replaced by 'The State of Iraq is a founding and active member of the League of Arab States and is committed to its Charter'.


The languages of the state of Iraq. Arabic and Kurd will be the two official languages of the state (art. 4). The range of the term 'official language' covers:


the publication of the official gazette in these two languages;


speeches and pronouncements in official contexts such as the National Assembly, the Council of Ministers, the courts and official conferences are to be made in one of these two languages;


the recognition and publication of official documents and correspondence in one of these two languages;


the opening of schools with teaching conducted in these two languages, in conformity with educational directives;


the use of both these languages in other contexts under the principle of equality (such as banknotes, passports and stamps);


and the use of both these languages in federal institutions and the agencies of the region of Kurdistan.


The Constitution guarantees the rights of Turcoman, Syriac and Armenian speakers in public and private institutions (idem). In addition, the Turcoman and Syriac languages will be the two official languages in the local authorities where these communities are in a majority (6). Article 122 adds that the Constitution guarantees the administrative, political, cultural and educational rights of various nationalities such as the Turcomans, the Chaldeans, the Assyrians and all the other components of the population (7).


The state and religion. What status does Islam have in the Fundamental Law? Today religion has an important political role in Iraq. The administrative law of transition of 8 March 2004 had already upheld this and Islam occupied an important position in this law (art. 7). This approach was then confirmed by the new Constitution. Islam is 'the official religion of the state of Iraq' and the 'principal source of legislation' (art. 2). In addition, there is a prohibition on the passing of laws that are contrary to the 'constants (8)of the precepts of Islam' (art. 2), and almost to moderate this the Constitution here goes on to add 'to the principles of democracy, the rights and fundamental freedoms contained in this Constitution'. Just as the Constitution guarantees 'the Islamic identity of the majority of the Iraqi people', it also assures 'the religious rights to liberty of doctrine and the religious practices of all individuals' (art. 21). The Christians are cited by names, such as the Yezids and the Mandeans (Sabeans), and this constitutes an advance.


But there is the risk of being faced by insurmountable contradictions. Everything depends on the orientations of the political majority in power given that the principles that underlie democracy and human rights have a rather secular essence. How will this equivocal coexistence be achieved. (9) The text is ambiguous and the coexistence between the two rules of law, those of positive law and those of religious law, is of a problematic character. In addition, the Constitution seems to be coloured by the religiosity of the Shiites and this provokes fears. It is certainly the case that the practice of religious worship is recognised for everyone without there being any ambiguity in the text, but a specific mention is made of the Hussainiya forms of worship, which are Shiite, given that this is the Shiite name for a mosque (10).


In addition, it is stated that the Supreme Federal Court will be made up of judges and experts in 'Islamic jurisprudence' (art. 87) and in law. Its statutes will be set out by law and will be adopted by parliament by a two-thirds majority. This Court will pronounce in particular on the constitutionality of laws and the interpretation of the provisions of the Constitution. What its choices will be is a difficult task given the Constitutional balancing between the shari'a, democracy and human rights.


Such clauses will favour in an evident way a particular community, they will accentuate confessionalism and could constitute a threat to public liberties and human rights. The Islamisation of Iraq would be a tragedy for the Iraqi people and a new defeat for the United States of America, which, indeed, wanted to bring democracy to Iraq and the Great Middle East: this would be a bitter disappointment which would undermine the arguments used by the Americans to justify the war against tyranny. Another no less grave consequence of Constitutional Islamisation would be its impact on the civil status of people.


The holy places. The Constitution states that the holy places have their own legal status because of their religious and cultural character. The state of Iraq guarantees and protects these places and religious worship in all freedom (art. 10).


Religious freedom for non-Muslims. The text of the Constitution recognises and upholds religious freedom and practice and belief. The Constitution states that 'every individual has the right to his own personal singularity, without prejudice to the rights of others and public morality' (art. 17). Article 39 affirms that as regards their personal status Iraqis are free to conform to the rules of their respective religions, their denominations, their creed and their choices. Every individual enjoys freedom of thought, conscience and doctrine (art. 40). The faithful of the religions are free to practice their forms of religious worship, including the hussainiya forms of worship, and to administer their religious goods and institutions. The state of Iraq assures freedom of worship and defends the security of the places of worship of Muslims, Christians, Yezids and Sabeans Mandeans (art. 41).


Christians and the Constitution. Although in favour of secularity, the Christian Churches understand in a realistic way that Islam can be mentioned as a reference point in the Constitution given that the majority of the population is Muslim. But they absolutely do not accept that the shari'a should be the only source of legislation because this would be a grave threat to the religious freedom of non-Muslims to whom Muslim law should not be applied. On this point, the spiritual heads of the Christian Churches and communities of Iraq sent a letter (11) to the public authorities on 24 August 2005 in which they laid emphasis on the principle of 'citizenship' in the Constitution, on equality of opportunity, and on freedom. And they argued that if the religions, the nationalities and the languages were to be mentioned, then all the historic religions, nationalities and languages should also appear with their respective rights, according to the principle of equality and without any form of hegemony.


At the beginning of August 2005 the Iraqi Churches also published a petition on religious freedom and the rights of women in which they defended secularity and adjudged 'very grave' a Constitutional Islamisation of the country. From a religious point of view, they stated, Iraq is characterised by multiplicity and this multiplicity had always been recognised at a legal level. This petition was preceded in July by an important meeting in Baghdad of the leaders of all the Churches who requested that religious instruction be introduced into state schools.


The drafting committee of the Constitution on 13 August 2005 listened to the representatives of the non-Muslim religions, the Christians, the Sabeans and the Yezids. On that occasion, Bishop Shlimoun Warduni, auxiliary of the Patriarch of the Chaldeans, Emmanuel III Delly, made an important declaration. He above all else defended the secular and democratic state: 'what we want is a democratic, civil, pluralist and federal state that separates religion and the state, that is to say the non-politicisation of religion and the non-'religionisation' of politics. Each person should perform his duties and obtain his rights in order to satisfy God and serve man'. The Constitution, he added, must be based upon citizenship without reference to nationality because 'we are for the homeland and the homeland is for everyone'. And 'it is in this citizenship that lies and is expressed the strength and unity of Iraq'. However, if nationalities had to be cited then all of them should be cited: the Arabs, the Kurds, the Chaldeans, the Assyrians, the Syriacs, and the Turcomans. As regards religious rights, he invoked freedom of belief and worship, based upon the Charter of Human Rights. With reference to the Islamic shari'a and its possible incorporation into the Fundamental Law as one of the sources of legislation, he applied the condition that it should not limit citizens to the cited 'constants' because the Constitution should be a model of openness to everyone and should respect the laws of other religions. Laws specific to each religion should be adopted in order to organise the religious beliefs of all Iraqis so as to guarantee the rights of women and handicapped people in line with their respective religions.


Immediately after the adoption of the Constitution a number of Chaldean dignitaries communicated their reservations about article 2 of the Constitution, emphasised its ambiguity and expressed their concern about this article. (12) And on 6 September, and this was an important event, the Council of the Catholic Bishops of Iraq, chaired by the Patriarch of the Chaldean Church, Emmanuel III Delly, published a communiqué in which it restated its fears about the multiple and opposing readings that could arise in relation to article 2 of the Constitution. Thus one can affirm that the Churches of Iraq are amongst the most strenuous defenders of the unity of the country and they are very attached to the principle of citizenship and secularity. It is thanks to their perseverance that the Christians are mentioned in the Constitution.


On the other hand, some Assyrian-Chaldean Christians, divided about what their name should be (Assyrians, Chaldeans, Syriacs, Armenians) and worried about the increase in the attacks on them personally (threats, kidnappings, murders) (13)and their places of worship, in particular from 1 August 2004 onwards, asked for the granting of an autonomous administrative region in the province of Ninive (near to Mossul). Others want a name that expresses their identity to be present throughout the Constitution, preferably 'Assyrian-Chaldeans', rather than the useless dispersive effect of three names. But these requests are far from enjoying unanimity. In August 2005, on the eve of the adoption of the Constitution, the battle over the name raged because each of the three components, strong with their respective political parties and political movements , conducted a campaign in relation to the political powers in order to make their own name appear, and without worrying too much about the others. The Churches themselves were also divided. The Chaldean Church in the end opted for the name 'Chaldean', whereas the other two ancient Churches of the East had chosen the term 'Assyrian'. There was a war of communications and controversies on the Internet, in newspapers, and on television channels. And yet we had thought that this crisis of identity had waned on 23-25 October 2003 at the time of the first congress held in Baghdad at which an agreement was signed on the unifying term 'Assyrian-Chaldean'. Subsequently, the number of conferences on the subject increased without any result being achieved and positions became increasingly rigid. On 20 August the Chaldean-Assyrian-Syriac communities abroad rebelled against the Iraqi authorities and asked for the Assyrians to be recognised as an autochthonous people, with the cultural, religious, linguistic and administrative rights that derive from this. The document was signed by sixteen organisations. The new Constitution consecrated the terms 'Assyrians' and 'Chaldeans' separately, a provision that was strongly contested by the Assyrian Democratic Movement on 19 September 2005 (art. 122).


Federalism and regional autonomy. Federalism has encountered many obstacles and its configurations have not been defined despite it being mentioned in the Constitution (art. 1). It is far from being clear, within the different component parts of the Iraqi people and in particular the Shiites and the Sunnis as well. The Kurds refer to a federal state which had already been consecrated in the previous texts, (15)but they would like a federal state of an ethnic kind so as to consolidate their autonomy which could then be a stage towards a possible separation. The Sunnis, for their part, although they recognise the regional particularities and the autonomy of Kurdistan as a fact (they have done this since 1991), are opposed because they fear that the expansion of regional responsibilities and a connected division of wealth will lead to the partition of the country. In contemporary circumstances they would prefer the country to be governed from its centre and not from the outer regions. They would accept at the utmost a decentralisation of the state but with an exploitation of natural resources by the central power. The Shiites, lastly, would be prepared to accept the federal system on the condition that the federalism of the Kurd regio (16) was extended to the nine Shiite provinces of the centre and the south of the country (Babylonia, Karbala, Najaf, Qadisiya, al-Muthana, Wasit, Maisan, Dhi-Qar, Bassora), which then would become a single region on the model of Kurdistan but on confessional and religious bases. And what would happen to the regions with a Sunnite majority such as Diyala, Anbar, Salah al-Din, al-Ta'amim? These questions have not been resolved by the Constitution.


International law. The Constitution affirms that the Iraqis benefit from the rights recognised by the international treaties on human rights that have been ratified by Iraq 'that are not contrary to the principles and precepts of this Constitution' (art. 44) (17).


The recognised tribes. The Constitution specifies that the state is committed to promoting the welfare of the tribes and to benefiting from those positive values and customs of theirs that are not contrary to the principles of religion, the law and human values. The state forbids tribal customs that are contrary to human rights (art. 43). In an exceptional climate of violence and fear, of increasing crime, of confusion and insecurity, of drug dealing, in short of an enormous security deficit, of economic crisis and of unemployment (more than 50% of the population is unemployed), a chronic shortage of housing, of massive emigration, of the absence of the state and incapacity at the level of government, of a lack of democratic culture, of foreign occupation, and of the absence of drinking water, electricity and gas (18), it would have been more reasonable to have postponed the debate on the Constitution to a calmer tomorrow. Given what is at stake and the Constitutional challenges represented by the national identity of the country, by the relationship between religion and the state, by the nature and the structures of the (federal, unitary, decentralised) state, by the form of (parliamentary, federal) political regime, by the balance between the religious, ethnic and tribal components of society, by the status of women, by the distribution of government and civil service jobs, and the distribution of wealth, it would have been better to wait. Six months (February-August) were certainly not sufficient. Such a time span was not realistic. After all, the Constitutional history of Iraq has been marked only by the provisional and the temporary (the Constitutions of 1958, of 1964 and of 1970)! The contents of this Constitution are so unclear that it will not change anything in the lives of the Iraqis. The path to the 'canonisation' of the country is open. Whatever options are adopted, the Iraqi priorities are not of a Constitutional character and tomorrow is full of uncertainty and risk.



(1) The points of contention are: the official name of the Iraqi state, its ethnic components, the recognition of the tribes, the national identity of the country and its range, the languages of the Iraqi state, the relationship between Islam and the state, the holy places,the guarantees of religious freedom, federalism and its expressions, regional autonomy, the relationship between the parliament and the President of the Republic, the status of the eighteen Iraqi provinces, the conditions for the granting of Iraqi nationality and the holding of dual nationality, the status of Kirkouk and the distribution of oil resources, the representation of the Kurds abroad, the ethnic and religious militias and their incorporation into the Iraqi army, the status of women, their parliamentary representation and the family code, the future of the Baath Party, the regional domain and international law.



(2) Reference here is to Hammurabi code.



(3)They are said to be 150,000 in number. The Yezids have a deputy in the Iraqi parliament.



(4) On 15 August 2005 the Shabaks demonstrated in Bartella (which is about twenty kilometers from Mossul) to ask to be cited in the Constitution as an Iraqi ethnic group which although Muslim is neither Kurd nor Arab. The Shabak political movement on 25 August 2005 protested at the fact that the Constitution did not mention the Shabaks as a nationality.



(5) These are Iraqis of Persian origins. It is estimated that they number about 70,000.



(6) In April 2005 the Minister of Education decided to open a department for the teaching of Kurd, Syriac and Turcoman in teacher training collages in the province of Mossul.



(7) On 1 September the independent Syriac movement protested at the fact that the Syriacs were not cited as an ethnic community as was the case with the Chaldeans and the Assyrians (art. 122) but reduced to being the mere speakers of a language Syriac (art. 4).



(8) The meaning of the Islamic phrase 'constants' is not made clear.



(9) Cf. J. Yacoub, 'Inquiétante islamisation?', in Le Figaro, 2 september 2005.



(10) The initial project of the Constitution was clearly marked by twelve imam Shiiteism on the lines of the Constitution of Iran. The idea was to establish the Welayet al-Faqih. The Iraqi Shiites belong to the same juridical school as Iran, the Jafarites, the followers of twelve imams, who are very distinct from the seven imam Shiites (the Ishmaelians), the Zaidites (of the Yemen) and the Ibadites (of Oman). They ask for the recognition of the Marjayia, their canon law decision-making body: 'The religious Marjayia benefits from its independence and its guiding role because of the fact that it is a sublime, national and religious symbol' (art. 15). This clause, however, was not accepted.



(11) This letter is signed by the following Christian Churches and communities: the Chaldean Church, the Catholic Syriac Church, the Orthodox Syriac Church, the Greek Orthodox Church, the Church of the East, the Church of the East of the ancient Calendar, the Latin Church,the Catholic Armenian Church, the Orthodox Armenian Church, the Protestants.



(12) See the declaration of Msgr. Paul Faraj Rahlo, Archbishop of Mossul, to the Italian Catholic Agency Information, Asia News, 30 August 2005.



(13) Many murders were committed in Mossul,Bartella, Kirkuk and Baghdad in August 2005 and death threats were made against the Christian inhabitants of the Dora district of Baghdad which invited them to leave their homes.



(14) More than ten have been counted in Iraq.



(15) Article 4 of the Administrative Law of Transition of 8 March 2004 and the preamble to the resolution of the Security Council of the United Nations of 7 June 2004.



(16) These are the three provinces which have been very autonomous ever since 1991 when the Iraqi authorities withdrew: Dehok, Arsela, Sulaymania.



(17) The previous text laid down: 'on the condition that they are not contrary to the precepts of Islam'. This article was eliminated once again and every reference to international treaties was eliminated, thereby making the Constitution the supreme law.



(18) On 15 August the Iraqi daily newspaper Azzaman wrote that 'the energy crisis is eclipsing the Constitutional crisis'.