Counting on a constitution

Iraq’s best hope for quelling the insurgency and ending sectarian violence might rest with the 71 politicians assigned to draft a permanent constitution for the country.

The addition today of 15 Sunni Arabs to the constitutional committee and 10 more to a consultative committee gives Iraqis hope that the constitution can be completed by the Aug. 15 deadline and will foster national reconciliation.

An inclusive constitutional process is a way to win over Sunnis to the new government and might be the only means to bring stability to Iraq, analysts and U.S. policy-makers said.

“The January election was a baby step,” said Robert C. Blitt, legal-policy analyst for the U.S. Commission on International Religious Freedom who served as an adviser on the constitution. He called the document “a departure point for Iraqi democracy and first step toward legitimacy for the government.”

Reaching out to Sunnis

U.S. officials are pushing for the constitution, called the Transitional Administrative Law (TAL), to be finished on deadline so the momentum toward independence can bolster the Iraqi government and discredit the insurgents.

But a growing number of people inside and outside the country caution against working too quickly. Some fear that rushing work on the constitution could undermine the nascent democracy and further alienate Sunni Muslims.

If the constitutional committee doesn’t produce a draft by August, it has the option of delaying the constitution by six months.

“If it is jammed through by mid-August, I don’t think that ordinary Sunnis will be prepared to buy into it as their constitution,” said Noah Feldman, a professor at the New York University School of Law who advised Iraqi drafters. “If we see a six-month delay and serious debate over what it should really look like, then Sunnis will believe that they were really involved.”

Previously, only two Sunnis sat on the drafting committee, where membership was based on the number of seats each party held in the National Assembly. It consists of 28 members of the Shi’ite United Iraq Alliance, 15 Kurds, eight members of the Sunni-Shi’ite coalition of former Prime Minister Iyad Allawi and four seats filled by a Turkmen, a Christian, another Sunni and a Communist.

“One of the biggest challenges is for Iraqis to find an identity that isn’t tied to ethnicity,” said Tad Stahnke, deputy director for policy of the religious freedom panel.

“We hope the constitutional process will lead them to think of themselves as Iraqis rather than different groups and winners and losers,” Mr. Stahnke added.

Role of Islam

The first section of the constitution, which will make up 70 percent to 80 percent of the document, has been resolved, said Fuad Masum, deputy chairman of the committee.

But the most contentious issues — such as the role Islam will play and how power will be divided between the regions and central government — still have to be negotiated. The committee works on consensus, and no voting will take place, leading many to fear that the addition of Sunnis makes meeting the deadline more difficult.

If the parties agree on the wording of the constitution, it will be submitted to the National Assembly and then be put to a vote in an Oct. 15 national referendum. If it is approved by the national referendum, national elections would be conducted in December under the new constitution.

One article in the TAL specifies that if two-thirds of the population in any three of Iraq’s 18 provinces reject the constitution, it will not take effect.

“No one should view the constitution as a done deal,” said Wayne White, an adjunct scholar at the Middle East Policy Institute and former leading Iraq analyst at the State Department. “If it is vetoed, we go all the way back to the beginning.”

The role that Islam will have in the new constitution is an essential aspect in the jockeying among politicians over how Islamic the country should be.

Besides enshrining freedom of religion, the Transitional Administrative Law requires that legislation not “contradict the universally agreed tenets of Islam.”

The TAL presents a good approximation of how the permanent constitution will be worded because of the protracted negotiations and haggling that preceded the adoption of the earlier document, said Jonathan Morrow, of the United States Institute of Peace, who worked extensively with the committee.

Balancing act

Heated discussion now centers on whether Islam will be “a source” of law or “the source.” Shi’ite Muslims and some Sunnis want Islamic law, or Shariah, as the sole basis for legislation, while the more secular-minded Kurds and other Sunnis and Shi’ites would like a more open interpretation of this clause.

Shi’ites “can try and create a constitution having a larger role for Islam, but the Kurds and Sunni Arabs can then reject it in the referendum,” said Mr. White, who ruled out any chance that an Iran-style council of clerics might be formed.

The Shi’ites on the committee don’t seem radical, said Michael O’Hanlon, a senior fellow at the Brookings Institution, adding that it is unlikely Shariah will be imposed.

But an adviser to Muqtada al-Sadr announced last week that the constitution must emphasize Islam as the only source of legislation or it will not receive the Shi’ite cleric’s backing. Sheik al-Sadr, de facto ruler of the Baghdad district of Sadr City, has ordered his forces to fight American troops in the past.

Whatever the wording of the constitution, the Islamic character of the law will be defined by subsequent legislation in the National Assembly and the interpretation of Iraqi courts, Mr. Blitt said.

Local vs. federal

All parties involved accept a federal Iraq, but a rancorous debate is under way about the extent to which powers will remain at the national level or be delegated to regional authorities. The northern Kurdish regions have enjoyed autonomy since 1991, and the Shi’ites are eager to exercise more control after years of neglect and oppression by dictator Saddam Hussein.

Oil revenue is also an issue because Sunni populations possess little of Iraq’s oil.

“The one big natural resource doesn’t flow to Sunnis,” Mr. O’Hanlon said. “They could be ghettoized, and you don’t want a lot of those people to be angry.”

The principle that regional authorities should receive oil revenue roughly proportional to their population will be incorporated into the constitution to solve this problem, said Patrick Clawson, deputy director for research at the Washington Institute for Near East Policy.

For the constitution to succeed, it will have to do more than placate the Sunnis and give them a share of Iraq’s oil revenue, analysts say. The Shi’ites and Kurds on the committee must treat Sunnis as equal partners and be willing to acquiesce to some of their demands if the majority groups want to pull them into the political process.

If Sunnis feel they are not getting a fair share of the pie, they could form a temporary alliance with Shi’ite hard-liners like Sheik al-Sadr and defeat the constitution in the referendum, Mr. White said.

“The constitution will not be a panacea,” Mr. Feldman said. “But if it speaks on behalf of the broader Sunni population, this will facilitate their entry into politics, which is what we need to help end the insurgency.”