- The Washington Times - Wednesday, May 26, 2004

A fatal flaw is present by an absence in the proposed draft of the U.N. Security Council resolution on the transfer of sovereignty in Iraq.

It makes no mention of the Transitional Administrative Law (TAL), signed by the 25 members of the Iraqi Governing Council in March, which provides an historic bill of rights for the Iraqi people and a road map to a permanent and elected government in 2005.

For the Iraqi people, the post-June 30 shape of the country is a looming uncertainty. The only possible anchor for them is the TAL, which some call an interim constitution.

The absence of incorporation of this document in the proposed resolution will leave the Iraqi individual unprotected, the new government adrift in a sea of political sharks and the international community’s credibility questioned.

Without the provisions in the TAL, the new government has no option but to enforce the current law drawn up by the former Ba’athist regime to bolster party and central government power and keep the people too repressed to revolt.

This war was fought to end this legally constructed exploitation. Why would the coalition want to leave it intact?

The U.N. resolution should recognize the TAL as the touchstone that provides the guiding principles of the new government.

News reports say the TAL has been dropped from the resolution to appease Grand Ayatollah Ali al-Sistani and his apparent supporters in Russia and France.

Iraqis who want to live in a secular democracy with their rights respected now fear that they may become victims of backroom deals to placate religious leaders who are perceived by the coalition and the United Nations as major players in Iraq’s completely untested political environment.

Understandably, the Iraqi people fear that after the transfer of sovereignty, the security situation will deteriorate into chaos, leaving the new Iraq dominated by mullahs and warlords. For the international community, this could mean the possible reappearance of a rogue state, a loose cannon in a region desperate for stability.

Despite its shortcomings, the TAL is the only available road map for moving toward a democratically elected government in Iraq. Its bill of rights and provisions for a separation of powers offer the only guarantee for the Iraqi citizen that the caretaker government will not abuse its power and its citizens.

The international community can empower the Iraqi people and garner their support for the resolution by assuring them that their basic rights, as listed in the TAL, will be protected during the transitional period.

Saying that the TAL will be “observed” by the new government, as some have suggested, is not sufficient. The complicated Iraqi political scene, the rise of extremist leaders, and increasing violence and foreign interference make it imperative that Iraqi individuals have international guarantees to protect their rights.

With U.S. resolve, the U.N. Security Council can do that.

Aside from the Iraqi people, the international community would benefit from inclusion of the TAL. This transition could go wrong in so many places, and we could all be back to square one with a belligerent state and a government once again violating its own citizens.

A crucial clause in the TAL, Article 61C, offers the international community some protection against that eventuality. It gives three governorates the right to veto a permanent constitution and the mechanism of modifying the draft until consensus is reached.

For this veto clause alone, the United States, Britain and the international community should be adamant that the TAL is included.

This veto power provides the country’s secular and liberal-minded population and their international supporters a safety net.

Article 61C is a guarantee that democratically minded Iraqis will not end up marginalized by a new authoritarian or theocratic regime, or subjugated by the elected majority.

If the future elected Iraqi parliament becomes dominated by hardline clerics — the chances of which are not remote today — they would be free to establish a theocracy if they so desire, regardless of the enthusiasm, or lack thereof, of the majority of the country’s citizens.

The United States will not be able to institute regime change again. But the veto clause provides at least the possibility that three governorates could nix a permanent constitution that could result in an Iraq that is once again a threat to international peace and security.

Some argue that this three-governorates veto could lead to near-permanent stalemate and that a permanent constitution will never be agreed upon.

Iraqi liberals and secularists say: better to have a long-term interim constitution than one that takes us back to the brutal past.

Hiwa Osman is a Baghdad-based journalist.

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