WASHINGTON, March 9 (UPI) -- Iraq's historic January election was a testament to many Iraqis' commitment to democracy. However, the newly elected Transitional National Assembly will face greater challenges in drafting the country's constitution.
The highly fragmented interim government, which is set to open session on March 16, will be responsible for the key role in writing a draft of the permanent constitution. It will then be presented for general referendum by Oct. 15, 2005.
Given the importance of the task, the question remains if a body that does not proportionally represent Iraqis can speak to the needs of all citizens.
In some areas during the election, only 2 percent of Sunnis voted out of fear or anger.
The United Iraqi Alliance, a coalition of 38 Shiite groups, claims 140 seats of the 275-member parliament, while Kurds have 25 percent of the seats, and the Sunni Muslims groups are minimally represented with as little as 2 percent of the seats.
"The (Transitional) National Assembly has to decide to bring under-represented groups into the constitution-drafting process," said Jonathan Morrow, program officer for the Rule of Law Program, at the United States Institute of Peace. "There is an emerging consensus that Sunni Arab groups could and should be brought into the constitution process."
According to a report released in February by the Washington-based USIP,"the importance of good constitutional process will be greater than ever; indeed this process provides perhaps the only nonviolent opportunity for a workable compromise to be reached as to the shape of the Iraqi nation."
The problems, however, will not be easy to deal with.
"The new government has to act very responsibly," said Louay Bahry, an Iraqi-American scholar, formerly of the University of Baghdad. "Writing the constitution is a very big hurdle." He added that the Shiite majority cannot isolate Sunnis from participating in writing the constitution.
Analysts agree that a representational constitution will increase the likelihood of acceptance by all Iraq's groups. Morrow said, "We have presented the lawyers of each political party with ways of doing this." According to Morrow, the most viable option is to create a constitutional commission, which would be comprised of members of several parties. He says that with such a structure put in place, "It seems possible that they (the Sunnis) will take part." After all, he said, "We know what Kurds want, what Alliance figures expect, (but) what Sunni Arabs want remains to be seen."
Consensus is critical as this document will determine the democratic future of Iraq. Feisal Istrabadi, Iraq's deputy representative to the United Nations, is well acquainted with the need for consensus and popular support, as he was one of the co-drafters of the Transitional Administrative Law.
The TAL was executed on March 8, 2004, and established a temporary state structure for the interim government and set out the parameters of a future, permanent constitution. In a briefing at the Middle East Institute, Istrabadi said, "Issues faced a year ago are likely to reoccur in a number of likely guises."
The ongoing debate centers on the relationship between mosque and state, the role of women, and the competing forms of federalism and the status of the northern Iraqi city, Kirkuk.
The role of Islam has received the most attention as the influential cleric Grand Ayatollah Ali Sistani, eminent backer of the UIA, has called for making Islam "the sole source of legislation in the permanent constitution."
Questions also arose about the role of Islam when the UIA nominated Ibrahim Jafari to the post of prime minister. Al-Jafari, a moderate politician, heads the Dawa Party, which has also called for the implementation of Sharia law. However, in the weeks since his nomination, al-Jafari, in an interview with CNN, has said that Iraq's government would reflect its "distinct personality."
Morrow said that the implications of Sharia law would be most "sensitive" for Kurdish and Shiite women. He added, "(There) is no uniformity of views within the UIA or in the Dawa Party," from which to judge support for Islamification. "From my own direct contact, my view is that to get a sense of the way these issues will play out in the constitution, look beyond personalities and characters in the National Assembly and look at the dialogue. What are the positions of civil society?"
His view is that there is a much greater degree of consensus in the role of Islam then division. And even if there is not, the public will have a chance to approve the constitution when it goes up for general referendum in October. As described in Article 61 of the TAL, the permanent constitution will be accepted only if not more than two-thirds of the voters in three or more governorates do not reject it.
As to the role of women, Istrabadi said, "everyone recognizes the role of women" and noted the large representation of women in the National Assembly. Women represent approximately 25 percent of the seats.
Mark N. Katz, professor of government at George Mason University, thinks differently. "The insistence of role of women will backfire," he said. "The sad fact is that a large number of men and even women will vote against a role of women." He added, "They will question why we impose such a large percentage of female representation although the U.S. doesn't have it."
However, Katz believes that none of these issues compare to what he believes will be the most contentious point: the competing systems of federalism.
"This is a nasty issue that could undermine the whole process," he said. "Each side is going to push. Kirkuk is a specific issue, both sides feel entitled and that could be messy."
As it stands, the TAL has allowed the Kurdistan Regional Government the right to continue to perform its functions throughout the transitional period, "except with regard to those issues which fall within the exclusive competence of the federal government."
Article 58 provides for the deferral of permanent resolution on the status of Kirkuk until after a permanent constitution is ratified, the repatriation process is finished, and a transparent census has been conducted. The controversy surrounding the strength of the Kurdistan Regional Government is likely to heat up during the constitution-drafting process since they have started to lay claim to oil rich Kirkuk in recent months.
As the Iraqi National Assembly session opens next week, they will have the difficult job of addressing the disproportionate representation of Sunnis in parliament -- and face many other issues that loom large over the constitution-making process. For the first time, the limits of democracy will be tested in Iraq without foreign interference.
"It is up to the National Assembly to tell the U.S., U.N. if they need help and not vice versa," said Morrow. "If the Assembly decides they want help on substantive constitution help, the international community can provide that kind of advice."
He added, however, "It is not the role of the U.S. government to have a view on what the constitution should say."
