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Controversy Brews Over Transitional Iraqi Legal System - 2004-06-15

Iraqi officials are taking more control of their country ahead of the official June 30 handover. However, a political controversy is already brewing over how the transitional administration law (TAL), will govern Iraq until a more permanent constitution is written. Iraqi Kurds and other minorities are feeling especially vulnerable.

A U.N. Security Council resolution passed earlier this month has endorsed a federal system for Iraq, after the handover. "The federalism in theory permits shared rule for some purposes and self-rule through state or provincial governments for other purposes all within the confines of a single, political system," legal scholar Dave Wippman of Cornell University explained.

A federal system had been outlined in a transitional administrative law drawn up last March, but that law was not mentioned in the U.N. resolution, which has Iraqi Kurds and other minority groups worried. A federal system could ensure that Iraqi Kurds who dominate the country's three northern provinces would continue to exercise the autonomy they have enjoyed for the past dozen years.

Interim government advisor Mahmoud Othman had this to say. "Everybody witnesses that this is a model and a good thing," he said. "And it could be a good thing for the rest of Iraq because there is stability and sort of democracy also. So, they can't go again in to Iraqi unity as such without having some guarantees. They can't accept again to be citizens of second degree."

Mr. Othman, himself a Kurd, says those guarantees were enshrined in the transitional administrative law (TAL). Kurdish leaders fully expected the TAL would be incorporated into the U.N. Security Council Resolution endorsing Iraq's transition to full sovereignty.

However, the Bush administration did not include it in its draft. It is not in the final resolution either.

That has infuriated Kurdish leaders who have threatened to pull out of the central government unless the interim law is fully implemented and their rights guaranteed.

Mr. Othman echoes some legal experts who say leaving the so-called interim constitution out of the U.N. resolution undermines its international legitimacy.

"There are a lot of important things in that law, a lot of consensus on how to resolve the Kurdish problems, how to have the bill of rights for Iraqis, women's rights, human rights, separation of power, how to end ethnic cleansing, many things," he added. "It's not only for Kurds, it's for Iraqis all together."

Iraq's new Prime Minister Iyad Allawi rushed to assure Iraqis that the TAL will serve as law. Kurds and other minority groups are not so sure.

Kurdish leaders are counting on the administrative law to serve as a basis for a more permanent constitution, because of its emphasis on protecting Kurdish autonomy. Kurds fear the Shiite Muslim majority could vote for an Islamic state that would frown on any degree of self-rule for the mostly secular Kurdish north.

The transitional law provides for veto power over the final constitution if two thirds of any three provinces vote against it.

The top Shiite Muslim cleric in Iraq, Ayatollah Ali Sistani, objected to the clause on the grounds it would give the Kurds too much influence over the final constitution. The Kurds argue the rule applies to any three provinces and could give Shiite dominated provinces influence too.

Law professor Noah Feldman, who helped draft the transitional law, sees the political dispute over future Kurdish rights as a reflection of the larger debate over minority rights in general.

"And the debate that we've seen in the last ten days and the debate we're going to see over the question of Kurdistan in the constitutional debates that are forthcoming, in part reflect a legitimate and real debate about protecting minority rights and the balancing of those minority rights against majoritarianism in a democracy," he said.

Iraqis won't begin writing a permanent constitution for several months.

First a national conference will be assembled to select the group that will put together the framework and procedures to elect a legislature that will eventually write a constitution and government framework.

Kurdish politician Othman argues that discarding or revising the transitional administrative law would be a dangerous undertaking during a very fragile political process.

At this point, he says, Iraqis are talking past each other, not to each other. Still, Mr. Othman remains optimistic a compromise to satisfy an anxious and deeply suspicious populace will be found.

"There are problems, definitely positive and negative aspects. But I think there's room for dialogue to try to reach some common points," he explained.

If not, Mr. Othman warns, Iraq's transition could quickly deteriorate into divisive political squabbling or civil war. And that, he says, is something that war-weary Iraqis want to avoid at all costs.