Irag's constituional drafting process

These guys were advisors to the Iraqi constitutional drafting process.....were they a help or a hindrance?

PAUL R. WILLIAMS AND WILLIAM SPENCER
Iraq's political compact

By Paul R. Williams and William Spencer | August 13, 2005
They write for the Boston Globe
MOST OF the news and commentary addressing the leaked drafts of the Iraqi constitution focus criticism on the role of religion, Iraq's designation as an Arab nation, the protection of women's rights, and Kurdish autonomy. While these are key issues that must be resolved, the constitution under development is first and foremost a political compact.
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Although the constitution will ultimately guide the political development of Iraq, it is not being approached in an overly legalistic manner. Rather, the founding fathers of Iraq are attempting to use the constitutional process to develop a mutual understanding of the future of Iraq. We spent the month of July in Baghadad as advisors to the Iraqi Constitutional Drafting Committee.

The purpose of the political compact is to weld all the factions to the idea of a united Iraq committed to the principles of pluralism and democracy. If successful, this compact hopefully will split and weaken the insurgency, allow Iraq to fend off interference from neighboring states, provide an opportunity to resurrect and restructure the oil industry, and provide a blueprint for the operation of governing structures.

This compact is being negotiated in an environment where none of the major political actors have previous national political experience; for many it is their first foray into politics. There is scant historical precedent in Iraq for constitutional rule, and an absence of regional models.

Despite the obstacles, the Iraqis will likely succeed due the nature of the committee chosen to represent their interest and craft the political compact. The committee is headed by Dr. Hamam Hamoudi and includes secular and religious Shi'a and Sunni, the two major Kurdish groups, women -- representing both the conservative Islamic tradition and the more secular liberal tradition, Turkmen, and other minority groups.

Fortunately, the committee is not composed solely of lawyers, but rather engineers, doctors, physicists, religious scholars, historians, journalists, and businessmen. Many were exiled in Western Europe and North America, are familiar with democratic models, but retain their understanding of the factors that drive politics and law in the land of Hammurabi.

A number of the groups have articulated extreme positions. This is to be expected in a constitutional negotiation, in order to test their bargaining positions and clarify opposing views. The agreement of the drafting committee to operate on the principle of consensus will sufficiently moderate these positions.

What is important, and impressive, is that the committee has not reached for political expedient, yet practically devastating mechanisms such as rotating presidencies, set-aside seats in parliament and the judiciary for specific ethnic groups, sectarian distribution of executive offices, or direct international participation in the governance of the state.

August 15, the day the Iraqi National Assembly will adopt the constitution, will not be the finish line. It will not be the day the United States and its coalition partners can begin political and military disengagement. Rather, it will be the day the race for political sustainability begins.

The constitution adopted on that day will resemble more of a General Framework Agreement than a traditional legalistic constitution. The Constitution will set forth a number of principles and themes that will guide the next Iraq Assembly, to be elected on Dec. 15, as it implements laws and regulations which find a proper place for Islam in a modern democratic state, protect human rights, especially those of women, and secure the autonomy of Kurdistan.

To insure the adoption of the constitution, the United States and its partners must provide the resources necessary for a dialogue on the constitution prior to the Oct. 15 referendum. It will also be necessary to continue extensive support for the creation of political party structures, as they are key to holding together eclectic political interests in Iraq.

Most important, the United States and the international community will need to launch a program of assistance inimplementing the constitution. The newly elected Iraqi Assembly will have the political skills necessary to identify and craft solutions, but they do not possess the practical experience with creating courts, human rights commissions, banks, and other institutions.

During the drafting process the nascent political factions have developed an effective means for consensus building, and for constructing bridges to resolve points of impasse. To turn the political compact into a workable constitution will require the continued development of these skills and the assistance of the United States and the international community.

Paul R. Williams is the RebeccaGrazier Professor of Law & International Relations at American University in Washington. William Spencer is Washington director of the Public International Law & Policy Group.