Amir Taheri, Arab News Staff

PARIS, 5 March 2004 — After months of heated debates, Iraq’s interim leaders have approved a constitutional draft designed to close decades of tyranny in the nation’s history.

The document signed this week is remarkable for a number of reasons. To start with it is a patchwork of compromises in a region where give-and-take is regarded a sign of political weakness if not outright dishonor. The Iraqi success in agreeing to a draft is all the more meritorious because the compromises that had to be made concerned fundamental issues.

The most hotly debated of these was the place of Islam in a future Iraqi state. Some members, arguing that the new state should belong to all citizens, whether Muslim or not, opposed any mention of Islam as state religion. Others, however, campaigned for an Islamic state in which non-Muslim Iraqis would, in effect, become second-class citizens in a system of apartheid based on faith. Under the compromise reached, Islam is mentioned as the religion of the state but will not be used as a means of barring non-Muslim citizens from public office. Nor will the state interfere in personal religious matters of the citizens, as is the case in many other Muslim countries, notably neighboring Iran.

Some radical secularists have already expressed disappointment at the compromise. The fact, however, is that giving the state a right of oversight on matters Islamic will prove good for Iraqi democracy. Under a totally secular system, Islam will be monopolized by the most radical elements that could use it as a political base on which to build a state within the state.

Let us cite two examples.

First, the shrines at Najaf, Karbala, Kazemiah and Samarrah are bound to emerge as magnets for mass pilgrimage for the world’s estimated 200 million Shiites. Linked with these shrines are thousands of endowments in the form of real estate, farms, industrial units and commercial businesses.

If allowed to escape some form of state control these could develop into a string of miniempires controlled by the mullas who could then be tempted into creating a parallel authority, thus weakening the democratic state. Under the new constitution the shrines and the businesses linked with them, worth billions of dollars, could be managed by a ministry in an atmosphere of transparency.

The second example concerns the way Islam is taught in the new democratic Iraq. If the democratic state excludes itself from the process in the name of secularism it will leave an important space open to groups with extremist ideologies. This has happened in Turkey and Pakistan in recent years, with private madressahs monopolizing the teaching of religion under the auspices of radical groups. At a time that the European Union is leaning toward honoring its “Christian culture” in its proposed new constitution, no one should take the Iraqis to task for acknowledging the religious heritage of 95 percent of its people.

Linked to the issue of Islam as state religion was that of the role that Shariah (Islamic law) might play in Iraq’s legal system. Some members of the Governing Council wanted the Shariah to be declared the sole source of legislation in new Iraq. This was never a serious proposal but the opening gambit by several parties who used Islam as a weapon against the Baathist regime and its supposed socialist ideology.

Under the compromise, the Shariah is mentioned as one of the sources of Iraqi law. This is reasonable because there is much in the Shariah that reflects centuries of customs, traditions and practices that do not contravene the Universal Declaration of Human Rights of which Iraq was one of the first signatories.

The draft constitution offers yet another important compromise. It allows the two Kurdish enclaves of the north to continue the autonomy that they have enjoyed since 1991. The compromise was designed to avoid a battle between those who want a federal system, patterned on Germany, and those who believe that federalism is inapplicable to Iraq.

This writer supports the latter view.

A federation comes into being when two or more existing states come together to form a single one. This is not applicable to Iraq which was put on the map as a unitary state from the start. There is also the need for a strong central authority to distribute the oil revenue and manage the nation’s water resources.

Nevertheless, it is impossible to reimpose a highly centralized state. Those Kurds who have enjoyed autonomy for the past 13 years are unlikely to accept any system in which all key decisions are taken in Baghdad.

There are aspects of the proposed draft with which it is hard to agree. For example, the idea of having both an executive president and a prime minister is a recipe for perpetual fights at the summit of the state. Things could become even more complicated because the draft envisages the appointment of two vice presidents, presumably to represent the ethnic and religious minorities, thus encouraging communalism at the highest level. The new constitution cannot emphasize both the concept of “Iraqiness” (Uruqa) and encourage ethnic and/or religious sectarianism.

The decision to impose quotas for women — 25 percent in the Parliament and 40 percent in government departments — is not helpful either. Added to the quotas for religious and ethnic minorities, these “reserved places for women” could complicate the task of forming an efficient administration with the help of the most qualified Iraqis.

Helping women secure a bigger role in the decision-making process could better be assured by political parties and, later, Cabinet ministers, on an informal basis. The parties, for example, could include more women in their electoral lists. More women could also be appointed to key positions such as governorship of provinces, ambassadorships, and the management of major state-owned corporations. There is no need for constitutional “charity”, so to speak.

The Governing Council has already taken a much more important step toward removing discrimination against women by canceling the law on “identity and personal matters.” That infamous law made women subservient to men, in many cases treating them as second class citizens.

The success of the Governing Council to come up with a credible draft must be seen as further encouragement to those who believe that, given a chance, most Iraqis can learn the rules of democratic politics. And that, in turn, is a strong argument for holding free and fair elections as soon as possible.