IRAQ: Iraq's interim basic law is meant to come into force on signing and remain the law of the land until a new permanent constitution can be drawn up and ratified by referendum. Michael Jansen reports
It reasserts Iraq's territorial integrity. The law is to be in force in all Iraq's provinces, including the three northern Kurdish governorates which were detached from Baghdad in 1991 when the US and Britain designated them as a "safe haven" protected by air power.
The law states that Iraq is an independent, sovereign state with its capital at Baghdad and a democratic, pluralist, parliamentary system. Iraq is a federation.
The territory of Kurdistan, which the Kurds seek to expand by annexing the city of Kirkuk and its oilfields, will retain its current configuration for the transitional period. The Kurds were granted the right to maintain their ethnic militia as a provincial national guard.
At the insistence of Iraq's senior Shia cleric, Ayatollah Ali Sistani, the basic law adopted his formula for dealing with Islam. Islam is the official religion, the faith of the majority and a source of legislation. The most important and controversial provision in this section asserts that laws not in keeping with Islam will be excluded, following the model of the recently adopted Afghan constitution. Analysts warn that this provision could permit conservative clerics to impose their own interpretation of Islamic law on Iraqis.
However, Mr Faisal Istrabadi, one of the drafters of the document, stated that "legislation cannot contradict any of the rights stipulated in the bill of rights", which is far more comprehensive than any found in other countries in the region. First and foremost, Iraqis are meant to be equal in rights and duties and equal before the law, irrespective of sex, sect, race and nationality. It is likely that Islamists will challenge this provision by claiming it is contrary to Islamic law, which gives men authority over women.
Iraqis have the right to express themselves freely, organise, meet, circulate, publish, and demonstrate within the limits of the law. An individual has the right to security, work, education and a fair public trial. Private property is a right.
Since the law specifies that Iraqis can own property in all areas of Iraq, ethnic cleansing (particularly of Arabs and Turkomen in the Kirkuk area claimed by the Kurds) is forbidden. An Iraqi cannot be deprived of citizenship. Torture is banned. Weapons can be carried only for self-defence by permit holders. The army is barred from politics.
The law stipulates that there should be a clear separation of powers between executive, legislature and judiciary. The law provides for an interim assembly but does not lay down the means for choosing this body.
The November 15th plan for selection by provincial caucus has been scrapped due to opposition from Ayatollah Sistani. The law sets a goal of 25 per cent of the seats for women, a compromise on the 40 per cent originally proposed as a quota. Although their demand was not met, the provision must be considered a victory for women because their right to representation has been conceded by conservative clerics and tribal figures who would like to exclude women from political life altogether.
Analysts suggest that the governing council capitulated to the US chief administrator, Mr Paul Bremer, close to his deadline of February 28th for two reasons: council members are determined that there should be no delay beyond June 30th of the transfer of "sovereignty" from the occupation authority to Iraqis, and argue that there is no point in contesting provisions in a document which is set to be revised in a year's time.
However, members of the committee which drafted this law argue that it will be the framework of the new constitution. There is also an important time factor mitigating against protracted debate in the proposed constituent assembly. Since the governing council has decided that elections must be held no later than January 31st, 2005, wrangling must be limited because the Iraqi public, eager to vote, will not accept postponement of elections.