As the yet-again-extended ‘deadline’ for a final draft of the constitution for Iraq looms, I thought it would be useful to look at some aspects of the Law of Administration for the State of Iraq for the Transitional Period (also known more simply as the TAL) that protects minorities against the kind of majoritarianism that I have expressed concerns about in previous posts (please go to the ‘Iraq’ category link at the right sidebar for those).
If these sorts of TAL provisions do not reappear in some form in the final draft, we can conclude that these days of further negotiations have been more for show than substance, or simply that the differences could not be bridged despite efforts. If these sorts of provisions reappear, it will be a very good sign.
On the formation of regions
The TAL, at Article 53 (C) specifically limits the number of provinces (or ‘governorates’) that may come together in a region:
Any group of no more than three governorates outside the Kurdistan region, with the exception of Baghdad and Kirkuk, shall have the right to form regions from amongst themselves.
The Aug. 22 draft simply says:
A region consists of one or more provinces, and two or more regions have the right to create a single region. [Article 114, paragraph 1]
Not only does this not pose any limits on the number of province that may accede to a regionâ€”and thus no limits on the extent of the national population any region may containâ€”it also removes the TAL provision that specifically prevents Baghdad and Kirkuk from becoming part of another region. It is clear that the wording of Article 114 is part of a deal between the Kurds and Shiites, in that it would allow Kirkuk to be annexed to Kurdistan (in fact, the TAL actually pre-established Kurdistan in order to leave Kirkuk out, as well as allow it to span more than three provinces, as the area they have controlled for some time already does). Of course, annexing Kirkuk to their region has been one of the Kurds’ primary goals. The Aug. 22 draft provisions, as opposed to those of the TAL, would also raise the alarming prospect that Baghdad itself could become part of the Shiite super-region in the south.
On the procedures for ratifying the creation of a region
Not only in the sense of which and how many provinces may associate as regions, but also in the process of approving their creation, the TAL had a stricter process than the Aug. 22 draft.
In the TAL, continuing Article 53 (C):
The mechanisms for forming such regions may be proposed by the Iraqi Interim Government, and shall be presented and considered by the elected National Assembly for enactment into law. In addition to being approved by the National Assembly, any legislation proposing the formation of a particular region must be approved in a referendum of the people of the relevant governorates.
The Aug. 22 draft, in paragraph 2 of Article 114, specifies the petition for a province’s accession can be by either 1/3 of a provincial council or 1/10 of a provincial electorate, and then the region’s ratification is by “general referendum by the residents of the designated provinces,” with the following additional provision:
the referendum is not be repeated, unless 2/3 (two thirds) of each of the provincial council members, or 1/4 (a quarter) of the provinceâ€™s residents, request that.
As I noted on Thursday, this is not clear as to whether it means the entire proposed region votes up or down, with a possibility of a follow up request from one or more provinces for a reconsideration, or what. It is vague and worrisome. But what is clear is that the draft constitution makes it much easier to form a region, by taking away the requirment for approval by the National Assembly.
The TAL set up a three-person presidency and required that it unanimously name the candidate for prime minister (Art. 38). I have not seen the provisions on the presidency or nomination of the prime minister in the current draft. However, the few references to the presidency in the excerpts I have seen imply a single person, rather than a collective presidency. In such a divided society, the collective presidency, albeit cumbersome, is a useful guarantee for the minority. If the presidency is a single person, it is likely to be held by a Shiite for about as far out as one can imagine. So watch closely what the powers of the office areâ€”whether rather limited, as in the TAL, or more expansive.
On Islam and the law
The TAL, at Article 7, says:
Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice.
The Aug. 22 draft says,
Islam is a main source for legislation.
a. No law may contradict Islamic standards.
I will leave it to others to interpret what this means, but “a source” and “a main source” seems like not just a trivial matter of wording.
On ratification of the constitution
I have already talked quite a bit about this (here and at the end of this post). I will just note here that whereas the TAL was explicit about the veto if three provinces have 2/3 ‘no’ votes, the draft is not. The TAL specifically defined that this is what is meant by ‘general referendum,’ whereas the Aug 22 draft does not.
The Aug. 22 draft does, however, add the caveat to the phrase ‘general referendum’ as it applies to the ratification of a region (where Shiites or Kurds could be the minority that seeks protection from the majority of a province), but not as it applies to the ratification of the constitution itself (where the Shiites are obviously not the minority seeking protection, and neither any longer are the Kurds, now that the draft effectively gives them Kirkuk).
I am sure there are other areas, but these are some that have caught my eye, and are worth paying attention to once we see the final draft.