[R-G] Iraq 'fundamental law' aims at weak govt. that US will dominate
ffeldman at bellatlantic.net
Sun Feb 1 08:28:34 MST 2004
DEBATE BEGINS ON STRUCTURE OF TRANSITIONAL GOVERNMENT
By Alissa Rubin
Los Angeles Times January 31, 2004
BAGHDAD -- Iraqi leaders are to begin debate Saturday on a newly
crafted proposal for a transitional government that would fuse
European and American styles of democracy, with executive, legislative
and judicial branches underpinned by a bill of rights. The draft law
calls for a tripartite presidency, which could help balance power
between the three dominant religious and ethnic groups. It is likely
to be made up of members of those groups -- Shiites, Sunnis and Kurds.
The proposal would also require that women hold at least 40 percent of
the seats in the transitional national assembly and in a
constitutional convention, an effort to ensure women's rights in a
nation that has vocal fundamentalist Muslim strains.
The document does not call for the strict version of Sharia religious
law in place in countries such as Saudi Arabia, but rather says that
the broad sweep of Islam -- encompassing a vast landscape of thought
and legal concepts -- should be the principal source for legislation.
The draft law will be discussed by a committee of the U.S.-backed
Iraqi Governing Council, which is free to make changes. Approval
could take several weeks because of the controversial nature of
several of the provisions, not least of all those calling for women's
Once approved, however, the law would become the framework for the
country's government until the end of 2005, by which time a
constitution should have been adopted and a permanent government
The document, written by Iraqi lawyers and staff advisers to the
U.S.-led Coalition Provisional Authority in consultation with members
of the Governing Council, contains a series of checks and balances to
ensure no one person or group has too much power. That is in direct
contrast to the dictatorship run by former President Saddam Hussein,
who concentrated power in the hands of the Sunni Muslim minority. The
three presidents, who would be selected by a transitional assembly,
would appoint a prime minister to oversee most day-to-day government
However, it is still unclear whether the assembly's members will be
chosen by the caucus system proposed by the coalition authority and
supported by some members of the Governing Council, or through direct
elections, as demanded by Shiite religious leader, Grand Ayatollah Ali
While the plan is only for the transitional government, it is likely
that much of it would be made permanent in a future Iraqi
"Everything in this document was designed with the goal of attempting
to rebuild this country," said Feisal Istrabadi, one of the authors
and a senior legal adviser to the current Governing Council President
It is on that basis, said Istrabadi, that the provisions for women
were included. "Women in Iraq have been part of the intelligentsia,
and academia and professions for a long time; the estimates are that
58 percent of the population are women. . . . Iraq will not make
progress if it ignores more than half of its talent pool."
Included in the draft law is a bill of rights that guarantees freedom
of speech, the right to peaceful assembly, freedom of movement, the
right to demonstrate and strike and the right to schooling and
The law also grants an array of other rights that were unheard of in
Saddam's time, including a ban on arbitrary arrest or detention; the
right to a fair and public hearing, the right to speedy public trial,
the right to be presumed innocent until proved guilty and a ban on the
use of physical or psychological torture.
A senior Bush administration official familiar with the document said
the administration had concerns about some provisions, but that the
document was "headed in the right direction."
The document is expected to generate heated debate over several
provisions, particularly those concerning women. Furthermore, the
Kurds are expected to make an effort to secure a guarantee that they
will receive a sizable share of Iraq's oil and mineral revenues.
The proposal is being discussed at a particularly delicate moment in
Iraq's political development. The U.S. deadline for return of power
is June 30, but a controversy remains over how to choose the
transitional national assembly, the primary authority to which the
coalition would transfer sovereignty.
Shiites, who constitute at least 60 percent of the population, fear
that the caucuses will be too tightly controlled by the Americans and
that they can easily be rigged, potentially leaving them with a
smaller share of power than they would probably get in a direct
The United States and the Governing Council have agreed to have the
United Nations review whether it is possible to hold fair direct
elections in the next five months as called for by Shiite leader
Sistani. An expert team is now on its way to Iraq to make an
Raising the stakes further, Sistani and the Supreme Council for the
Islamic Revolution in Iraq, which is represented on the Governing
Council, are gathering their own team of experts to meet with the
United Nations. The goal is to have people prepared to counter any
concerns the U.N. raises about the viability of direct elections, said
Hamid Bayati, a representative of the supreme council.
"We are in the process of selecting a group of technical experts in
census taking, security issues, election laws, to study all the
problems that could be raised by the U.N.," Bayati said.
The Governing Council has until Feb. 28 to devise a structure for the
transitional government. The draft law is part of an effort to
outline that government's shape regardless of how the assembly is
Under the draft proposal, there would be a unicameral transitional
national assembly with the power to ratify treaties, make laws, make
spending decisions and oversee the executive branch. The size of the
assembly has not been fixed but it will probably have between 250 and
300 members drawn from Iraq's 18 governorates.
The assembly would elect the three members of the Presidency Council,
which would appoint a prime minister and have veto power over
legislation approved by the assembly. Under one scenario, the
Presidency Council would also have power to appoint a chief justice as
well as the judges who would serve on Iraq's Supreme Court. An
alternative scenario allows the three presidents only to choose the
Supreme Court judges and gives the prime minister the power to select
the chief justice.
The prime minister would recommend ministers for Cabinet posts but the
Presidency Council would actually appoint them. The prime minister
and Cabinet would have to win a vote of confidence in the assembly.
A three-person presidency is problematic, according to several members
of the Governing Council as well as governance experts. Although the
draft law does not spell out that its members would represent each of
the major ethnic and religious groups, there is little doubt among
Iraqis that it would work that way.
"I'm against the tripartite presidency," said Samir Shakir Mahmoud, an
independent member of the Governing Council. "We should have a single
president and elect whoever it may be Sunni, Shiite or Kurd. I want
to get away from Sunni, Kurdish, Shiite divisions, we should have an
Iraqi president. I will argue vehemently against it, but I think I
will lose, they all want to be represented."
U.S. administrations have previously discouraged the idea of
tripartite presidencies or the automatic granting of top political
positions along ethnic lines.
"It would only contribute to the cantonization of Iraq along ethnic
lines," said a Bush administration official.
Others familiar with similar ethnic power-sharing arrangements in
Bosnia and elsewhere also argued that a tripartite presidency could
cement rather than soothe ethnic rivalries in Iraq.
"You are defining the political dialogue in terms of ethnic and
religious identity, which is not the way to start building a
democracy," said Paul Williams, an American University professor of
law and international relations who has been a legal advisor to the
Such a system would likely exclude Iraq's minorities, such as
Turkmens, Christians or Assyrians, from ever holding the presidency,
Another hazard is that it makes it harder to make decisions, said
Mahmoud Othman, a Governing Council member from Kurdistan. Othman
said he fears that Shiites, who hold 13 of the 25 seats on the
Governing Council, will want a larger representation on the Presidency
Council and that it could be expanded to five or seven seats.
"One president is better than three; three is better than five . . .
the fewer you have the better because they have to be able to reach
decisions," said Othman, noting that the Governing Council, which has
a presidency that rotates among nine members, has had great difficulty
deciding many policy issues. The council was created last summer with
the backing of the U.S.-led coalition to begin the shift of power to
Iraqis but it has no legislative authority.
The experience in Bosnia has been bleak. Three co-equal presidents --
a Bosnian, a Croat and a Serb -- rotate through the post of chairman.
The chairman has most of the power, resulting in each incoming
chairman reversing the decisions of the previous.
In addition, the system has tended to result in the election of ethnic
nationalists from each faction. "When you run as a Serb, the only
people voting for you are Serbs . . . so none of (the candidates) has
an incentive to reach out to the other side," said law professor
"The evil of the system is not just the tripartite presidency but the
fact that it pervades the entire institution with ethnic vetoes, and
that's a dreadful idea," said Daniel P. Serwer, a specialist in
post-conflict situations at the U.S. Institute of Peace.
But he noted that the Iraqis might adopt a tripartite presidency
without the other negative elements of the Bosnian political system.
>From the Iraqi point of view, the tripartite system was a familiar one
prior to the Baath Party takeover of Iraq and Saddam Hussein's
A version of it existed under Abdul Karim Qassim, Iraq's leader in the
1950s. Furthermore, because the presidency council must unanimously
select the prime minister, it would invest three major groups in the
the one person who has the most day-to-day responsibility in running
the government. It would also add to the balance of power among
different branches of government. "We are trying to devolve power
away from a single center of gravity," said lawyer Istrabadi, one of
"We wanted a presidency that had power as a counterweight to the prime
minister, it's part of the checks and balances we're trying to build
into the system," he said.
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