Iraq's infuriatingly vague constitution.

Military analysis.
Aug. 23 2005 4:27 PM

Articles of Consternation

Iraq's infuriatingly vague constitution.

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Iraqi Prime Minister Ibrahim Jaafari

Judging from the two translations of the text released so far, it's hard to see how Iraq's constitution could serve either as a document that unifies the new Iraqi nation or as a clear guide to governance.

The charter is vague to the point of vacuousness in its most basic proclamations. Article 2 reads:

Islam is the official religion of state and a fundamental source for legislation.
(a) No law may contravene the essential verities of Islamic law.
(b) No law may contravene the principles of democracy.
(c) No law may contravene the rights and basic liberties enumerated in this constitution.

Already, we have a contradiction that would befuddle the most probing judicial review (assuming the constitution provided such a thing, which it doesn't). For women especially, Islamic law itself contravenes the principles of democracy and basic liberties. So, which clause takes precedence?

Much has been made of the assembly's debate over whether Islam should be declared "the source" of legislation or merely "a source." But look at how it came out: "a fundamental source"—which, as professor/blogger Juan Cole notes, amounts to pretty much the same thing as "the source." Cole, who has translated the document himself from a version made available in an Arab publication, also stresses that section (a) refers to "the essential verities of Islamic law"—not, as the commonly used AP version has it, "Islamic standards." The latter might be open to wide interpretation; "Islamic law," however, seems to enshrine sharia, which not only denies rights and liberties to women, but also allows religious jurists to question secular legislation. Or does it? The constitution is, at best, ambiguous on this most crucial question.

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Article 2 guarantees the Islamic identity of the Iraqi people as well as all other religious rights. Article 39 preserves the right to observe religious rituals—but it also notes that the issue "will be organized by statute." So, is freedom of religion—any religion—a constitutionally protected civil right or is it a matter to be deferred to legislatures? Things look more ominous still, in light of Articles 13 and 118, which forbid regional or provincial statutes from contravening the laws or constitution of the national government. And what's the national constitution's take again? "Islam is the official religion of state and a fundamental source for legislation."

The Sunnis are up in arms over a section that's not ambiguous but, rather, all too clear. Article 114 defines a "region" as one or more provinces that choose by referendum to form a region. (A referendum can be called fairly easily: either by one-third of the members in the relevant provincial councils or by one-tenth of the voters in those provinces.) Moreover, two or more regions have the right to create a single, larger region.

Here is the Sunni nightmare in plain black and white: The Kurds are allowed to form a single supra-region in the oil-rich north, the Shiites to form theirs in the oil-rich south, while the Sunnis are left in the oil-dry center.

Article 110 appears to deal with the inequities that may result from this arrangement: "The central government administers oil and gas extracted from current wells, along with governments of the producing regions and provinces, on the condition that revenues are distributed in a way that suits population distribution around the country."

But take a closer look at the beginning of that sentence: The article applies to oil and gas extracted from "current wells"—not from wells to be tapped in the future. There is also something odd about the assurance that revenues from current wells will be "distributed in a way that suits population distribution." It would be useful to know if "suits" is a poor translation or a deliberate ambiguity.

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