Sat, Oct 08, 2005 page9

• The promise of Iraq's constitution

  • By Feisal Amin Al-Istrabadi
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  The constitutional process now under way in Iraq represents a hopeful milestone for all Iraqis. After decades of successively imposed constitutions, an elected assembly has overseen the process of drafting a new permanent constitution, and the draft text will be voted on by ordinary Iraqis next Saturday.

  Much of the current talk about the draft's various provisions thus misses the point. Regardless of whether the referendum succeeds or fails, and regardless of the details of the constitutional text, what is most important is the establishment of constitutional processes and institutions in Iraq, before and after the referendum.

  Concerning the pre-referendum phase, the National Assembly largely succeeded in this task. Although Iraq's interim constitution gave the Assembly exclusive control over the drafting process, the Assembly wisely reached out beyond its membership in creating a constitutional drafting committee.

  Iraqi leaders were well aware of the decreased participation in the election by a significant portion of Iraq's multi-ethnic mosaic, particularly the Sunni community. Accordingly, they sought out those who were under-represented in the Assembly, but whose sense of participation in and ownership of the process was essential, not merely to the constitutional exercise, but to binding the nation's wounds. This was no mere gesture.

  Reaching out was an important component of establishing the rule of law, and it also sent a message that Iraq had truly turned a corner -- that no single party sought to dominate Iraq. This was an important signal that those elected to the National Assemblyunderstood that democracy does not mean merely the will of the majority.

  Instead, all Iraqis were allowed to participate in the process, and, though consensus was not ultimately reached, that was also a part of the democratization process. In the end, Iraq's voters will decide whether this is a constitution under which they wish to be governed for the foreseeable future. Those who chose not to participate in last January's elections will most certainly do so now, both in the referendum and in the upcoming elections to a new assembly in December.

  A second important feature of the drafting process was the extent to which the National Assembly complied with the requirements of Iraq's interim constitution, the Transitional Administrative Law (TAL). At the time of the transfer of authority in June last year, many pundits predicted that an elected national assembly would ignore an interim constitution drafted by an unelected Governing Council and promulgated by an occupying authority. Yet that did not happen.

  The TAL set a rigorous schedule for the Assembly to complete an initial constitutional draft, and the Assembly essentially abided by those limits. The deadline extension that it passed was in keeping with both the spirit and the letter of the TAL. At long last, it can be said that an Iraqi legislature understood that it was constrained by constitutional principals and the rule of law.

  The test for institution building, however, will come once a constitution has been approved and a new government installed. Regardless of who wins the elections, there will be temptations to tinker with the constitutional text.

  However, given the little weight given to constitutions in Iraq's modern history, it is likely that the political class will leave the text alone. Barring some compelling need, the calculus might well arise that it is more important to abide by the constitution for some time -- and to be seen to be abiding by it -- than it is even to improve its provisions. Changes can always be proposed after a decent interval.

  It goes without saying that it will be essential to establish that governance in Iraq is institutional, not personal. The US administration was absolutely right to resist the call to turn Iraq over to a caudillo, as some wanted. Iraq's salvation from the nightmare that it endured over the previous 35 years lies not in any one man; indeed, reliance on "one man" was the central ingredient in Saddamist rule.

  Here again, Iraq's immediate past history allows one to be optimistic. The Iraqi Governing Council was not dominated by any single member.

  Giving life to constitutionally defined political institutions is far more important to the course of Iraq's immediate future than the specific provisions that the constitution contains. That has been the missing ingredient, not only in Iraq, but also in other countries ruled by despots.

  Constitutions frequently enshrine lofty principals, and nobly assure protection of fundamental rights. The question is whether those guarantees are given meaning on the ground. If the immediate past is a guide, one has reason for optimism in Iraq.

  Feisal Amin al-Istrabadi, Iraq's ambassador and deputy permanent representative to the UN, was a principal drafter of Iraq's interim constitution.

  Copyright: Project Syndicate
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