A stumbling start

8/16/2005 3:51:31 AM

Establishing a new constitution for Iraq was never going to be quick or simple, and yesterday's cliffhanger, which failed to produce a completed draft by the midnight deadline, demonstrated that. Under the timetable set by the United States, parliament had to approve a draft by August 15. This would be followed by a national referendum in October and, all being well, the first parliamentary elections under the new constitution in December. All these dates were somewhat arbitrary, but without them the drafting committee's deliberations might well have gone on interminably. Washington, of course, had its own reasons for insisting on the timetable - not least because it could create a political opportunity to declare victory and start pulling out troops early next year.

The process has usefully brought the areas of contention into sharper focus but on the two crunch issues of Islam and federalism nothing has been clearly resolved. The main question is how to achieve a fair and sustainable balance that not only gives the Shia majority its due but protects the interests of the Kurds, the Sunni Arabs and smaller groups such as the Turkmen and the Assyrians. This is not just a matter of deciding how to apportion power between central government and the provinces. In the background there are fears for the continued existence of Iraq as a single state as well as arguments about the distribution of oil revenue.

Finding a workable solution, as a report from the Carnegie Endowment noted last week, "would probably strike even a veteran Israeli-Palestinian negotiator as complicated and difficult". The other issue - which has particularly exercised secularists, US officials and human rights activists - is the extent to which Islamic law will be allowed to shape future Iraqi legislation. Almost all Arab constitutions state that Islam is the official religion and that Islamic law is either "a source" or "the main source" of legislation. This keeps the religious conservatives happy but in practice - along with much else in Arab constitutions - the rule tends not to be followed very strictly. One real problem is the difficulties this causes in the field of human rights, and the international convention on the elimination of all forms of discrimination against women is an example. With the exception of Qatar, all the main Arab countries have signed it. But most have also tabled reservations which in effect negate their signature, citing Islamic law as the excuse.

In Iraq's case, it is possible that different versions of Islamic law - Sunni and Shia - would be applied to different citizens, depending on their sect, with separate rules for the Christians. It is probably true that the majority of Iraqis would not be unduly troubled if that happened, but they ought to be. A basic principle of democracy is that the people are sovereign and a system where their will can be overridden by clerical interpretations of a holy book - whether it be the Qur'an or the Bible - is essentially anti-democratic. Whatever happens between now and October, it is by no means certain that voters in a referendum will say yes. The rules effectively give the Sunni Arab and Kurdish minorities a veto (on a two-thirds "no" vote).

That would send the process back, more or less, to square one. In a region where it is almost unheard of for people to vote no in a referendum, it would be a democratic first of sorts - but not what anyone is really looking for at the moment. Of course, there is a positive side to all this. After decades of oppression, the Iraqis are finally and in a painfully cumbersome way beginning to work out their own destiny. On current form, though, there is little to suggest they will fulfil President Bush's stated hope of creating a model democracy that would inspire the rest of the region.