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[casi-analysis] casi-news digest, Vol 1 #50 - 1 msg

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Today's Topics:

   1. Constitutional tempest in Iraq (Ghazwan Al-Mukhtar)


Message: 1
From: "Ghazwan Al-Mukhtar" <>
To: <>
Subject: Constitutional tempest in Iraq
Date: Tue, 30 Mar 2004 10:55:24 +0300

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Constitutional tempest in Iraq

By Bruce Fein

V olcanic. That characterizes a heated symposium I attended in Ankara, Turk=
ey, last week sponsored by the Foreign Policy Institute and Bilkent Univers=
ity to appraise "Iraq on the way to its new Constitution." The attendees in=
cluded Iraqi participants in the March 8, 2004, interim constitution promul=
gated by the 25 member Iraqi Governing Council (IGC). Other attendees haile=
d from Turkey, the United Kingdom and the United States.
    The symposium exposed numerous fault lines destined to fracture Iraq so=
on after the Coalition Provisional Authority and United States sovereignty =
dissolve on June 30, 2004:
    . An interim constitution and Iraqi Transitional Government devoid of l=
    . A legal system denuded of legal principles.
    . An irreconcilable conflict between the universal tenets of Islam and =
fundamental democratic freedoms.
    .  Implacable embitterment of Kurds toward Arabs born of their wretched=
 oppression and genocide under Saddam Hussein.
    . A demand by Turkmen to the same language and autonomy privileges enjo=
yed by Kurds.
    .  And exchanges and monologues that smacked more of belligerence than =
of fraternity.
    Within days after conclusion of the symposium fireworks, a representati=
ve of Iraq's most influential Shi'ite voice, Grand Ayatollah Ali-al-Sistani=
, warned the cleric would issue a fatwa or religious edict prohibiting part=
icipation in the Iraqi Transitional Government and mandating resistance thr=
ough popular demonstrations and sit-ins.
    To avoid such pandemonium and chaos, according to Ayatollah Sistani's r=
epresentative in Kuwait, Ayatollah Muhammad Baqr al-Mohri, the interim cons=
titution must delete the special authority of Kurds to thwart a final const=
itution and must strengthen the power of a Shi'ite-dominated presidency.
    The staggering blunders of the Bush administration in governing post-Sa=
ddam Iraq have left no satisfactory post-June 30 denouements. The least bad=
 option is a managed partition into statelets for Kurds, Turkmen, Sunnis an=
d Shi'ites to escape a reprise of Yugoslavia's blood-stained disintegration=
    Symposium participants challenged Iraqi representatives to defend the l=
egitimacy of their constitutional handiwork, soporifically styled the "Law =
of Administration for the State of Iraq for the Transitional Period." No me=
mber of the IGC was elected. All were appointed by the United States. None =
enjoy more than a crumb of popular support.
    A favorite of the Defense Department, Ahmed Chalabi, is more reviled th=
an Saddam Hussein. The interim constitution was neither drafted nor debated=
 in a public forum before its promulgation. The document turned precepts of=
 self-government on their heads.
    The defenders fatuously retorted that the interim constitution and the =
IGC deserved legitimacy because both were superior to Saddam Hussein and Ba=
'athist tyranny. By that yardstick, a restoration of the King Feisel dynast=
y would be defensible. It was further urged that the IGC featured members f=
rom all of Iraq's major ethnic and religious groups.
    But Turkmen are underrepresented in proportion to their numbers, and wo=
men occupy but one seat of 25. Moreover, the general unpopularity of IGC me=
mbers convincingly demonstrates they do not embody the wishes of the ethnic=
 or religious constituents they purport to represent.
    Drafters and supporters of the interim constitution readily conceded it=
s celebration of contradictory principles. Article 4, for example, declares=
 Iraqi's federal system shall not pivot on "ethnicity." Yet Article 53 make=
s Kurdish ethnicity the foundation for the "Kurdistan Regional Government,"=
 i.e., the Kurdistan National Assembly, the Kurdistan Council of Ministers,=
 and the regional judicial authority in the Kurdistan region.
    Article 7 enshrines both the universal tenets of Islam that subjugate w=
omen and strict gender equality as the supreme law of the land. A challenge=
 by one of two female conferees (neither from Iraq) to harmonize the loud c=
lashing was met by answers that Islam granted equality among men.
    Nothing was said to deny Article 7's grim risk of bringing honor killin=
gs in Jordan and female stonings in Afghanistan to Iraq.
    The tenets of Islam also war with the freedom of expression guaranteed =
in Article 13, for example, in mandating fatwas against Salman Rushdie's "S=
atanic Verses" or similar irreverences about the Holy Koran or the Prophet =
Mohammed. The tenets also punish conversion from Islam with death, a punish=
ment at war with Article 7's protection of religious freedom.
    Iraqi conferees insisted on the unity of the nation and the eagerness o=
f Arabs to join hands with other nationalities. Yet Article 7 proclaims tha=
t, "the Arab people are an inseparable part of the Arab nation," with the t=
acit corollary that non-Arab nationalities are separable.
    When asked to justify the constitutional hierarchy between Arabs and no=
n-Arabs, an Iraqi participant pleaded a defense of necessity to appease Ara=
b sentiments, a plea reminiscent of Prime Minister Neville Chamberlain's ap=
peasement of Adolf Hitler over the Sudetendland at Munich.
    Saddam's persecution of Kurds, including the use of chemical weapons an=
d the notorious Anfahl campaign, was recited chapter and verse by several c=
onferees to justify a unique Kurdistan state and muscular Kurdish safeguard=
s. Those who suffered most under Saddam, it was hotly maintained, deserved =
the most under a new dispensation. Spokesmen for Turkmen, on the other hand=
, vehemently complained of maltreatment by Kurds. They insisted on Turkish =
as an official language and Turkmen autonomy equivalent to that of Kurds.
     The seminar changed no minds. Differences were more aggravated than so=
ftened. Contemplating Iraq's future evoked visions of civil war featuring r=
ocket propelled grenades and AK-47s, not free and fair national assembly el=
ections monitored by United Nations observers.
    The United States should declare its post-Saddam nation-building enterp=
rise a failure. It should begin immediately to arrange the partition of Ira=
q by regional self-determination plebiscites. To paraphrase Winston Churchi=
ll, it would be the worst imaginable last chapter of Operation Enduring Fre=
edom, except for all the plausible alternative scripts.

    Bruce Fein is a constitutional lawyer and international consultant at F=
ein & Fein and the Lichfield Group.

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