5: An authoritarian past
Many constitutions have acquired their distinctive character because they seek to address specific problems in the political history of individual countries. Some countries have experienced that concentration of power can threaten democracy , while others have seen that power pulverization can create paralysis of action and risky fragmentation. The constitutions that were created in Germany and Japan after the Second World War are examples of deliberate attempts to weaken the potential for militarization and new centralization of power.
Iraq, too, has a special past under an oppressive regime, and this poses the third challenge to the Iraqi constitution. Millions of Iraqis had to suffer wars and sanctions from 1980 to 2003 because the central government insisted on using the country’s resources for aggressive warfare against its neighbors Iran and Kuwait. In this way, the paradox arose that the inhabitants of areas with some of the world’s largest oil resources (Basra and Kirkuk) lived in extreme poverty and insecurity. The challenge for the constitution will be to deal with Iraq’s historically problematic relationship to the concentration of power without the center becoming so weak that the state disintegrates.
6: Characteristics of the new Iraqi constitution
Work on a new Iraqi constitution is sometimes portrayed as a laborious and democratic process that has been going on for a long time. The reality is that the «democratic election» in January 2005 (which is the starting point for the Iraqi Constitutional Committee) took place in a very tense security situation with almost daily terrorist attacks. This dramatically reduced the opportunities for open exchange of views. A great deal of the constitutional work was then carried out during some hectic summer months, with subsequent crisis negotiations following the approach method.
One of the two striking features of the new constitution is federalization . Instead of a centralized state model where power is concentrated in Baghdad, it is planned that regions can gain far-reaching internal self-government and influence in areas such as criminal law, education and health policy – and even responsibility for local police and security forces. The existing Kurdish region is specifically recognized, while it is also possible for the current provinces (counties) in other parts of Iraq to merge into larger regions in the future. The challenge of dealing with a problematic and centralist past is thus sought to be solved by launching a new way of organizing Iraq in the constitution. The result is a new Iraq so decentralized that the situation is almost turned upside down in relation to Saddam Hussein’s days.
According to baglib, the other important tendency in the new constitution is Islamization . It is stated that no future laws in Iraq will be approved if they are in conflict with established Islamic law and case law. Although a later section states that all Iraqis are equal before the law, regardless of gender, ethnicity, religion and socio-economic status, this represents a dramatic expansion of the role of religion . In many cases, the two paragraphs will be in conflict, because Islamic law in a number of legal situations gives women, non-Muslims or apostates / apostates from Islam poorer legal protection than the non-religious principle of total equality before the law.
7: “Islamic” enough
In continuation of these tendencies, it is tempting to add a third feature to the text that the Iraqis are now going to vote on, namely incompetence . For who is to decide whether new Iraqi laws are “Islamic” enough? Or, to take a concrete example: Who should consider what is constitutionally correct legislation on domestic violence? This is forbidden by the constitution, but is accepted to a limited extent by several Shia Muslim scholars if the “goal” is to ensure decent behavior and if it does not cause physical harm. According to the constitution, this type of question should be left to a separate federal Supreme Court.
However, the composition of this is not further specified. The key question of the balance between secular and religious judges is simply postponed. The result is that the constitution offers very few absolute guarantees for vulnerable minorities in society, and gives even greater power to dominant majority groups in the National Assembly. And this is not the only aspect that remains in the blue: neither the procedures for establishing future federal regions nor the distribution key (between central government and regions) for energy resources are unambiguously specified.