If, on the other hand, the plane wished to reach Iraq from Turkey, things would be easier because it would be necessary to obtain permission only from the regions of Suleymanyah, Diyala and Wasit, of which, just the last is populated by unruly Arabs. Naturally, this is only an extreme example – if for one reason only, that no western company would ever think about making new airline connections with Iraq - but the present Iraqi Constitution attributes such vast and vague powers to the 18 regions and governorships that from a legal point of view, the matter should progress in exactly this way. This fact, it must be believed, created great annoyance among those, including the writer, who, on the referendum day, escaped by mere chance, the destruction of the “Palestine” Hotel, convinced of being in Iraq to participate in a serious event.
Some have defined the new Iraqi Constitution as a problem child waiting to be educated, others as a book of dreams punctuated by nightmares and others, the most critical, as the institutive basis for future disasters. Without wanting to appear overly-critical, the minimum that can be said is that the text approved two months ago by the 78% of the Iraqi Shiites and Kurds, contains courageous, but contrasting affirmations, together with modern, but irreconcilable propositions.
In extreme synthesis, it appears to be a document which tries to sustain everything, and everything that is to the contrary, delegating the task of harmonizing the opposites to the future and to the good will of future legislators.
It would be difficult to expect anything different, if for no other reason, but for the fact that the fundamental charter of Iraq is the offspring of an imposed will and not of an indigenous process. In general, who draws up the Constitution of a newly democratized country is required to have a particular kind of ability, that of putting a society in the position of peacefully resolving, in the future, the most difficult controversies under the most serious circumstances; this is written in the Iraqi Constitutional Charter, the only problem being that the principle propositions are not accompanied by the preparation of adequate instruments.
It must be remembered that the text of the Constitution was given birth forcibly by an assembly of Iraqi leaders under pressure from ambassadors and Anglo-Saxon legal consultants.
There was the wish to finish up everything rapidly, partly to stamp the exit visas for the occupying powers and partly because it appears that for some time in international politics, the idea seems to have taken hold that in the ‘road maps’ the single ‘stopovers’ are more important than the destination, and the expiries are to be more respected than the agreements.
A last caution: the Iraqi Government and Presidency obtained the text approval, thanks to an agreement signed in extremis with a Sunnite Party which will open the road to any kind of modification. Therefore, we are speaking always and only of a “Constitution in progress”.
The most enlightened of the Arab Jurists had singled out, at least, 18 points of disagreement between the Sunnite, Shiite and Kurds and, even after the agreed adjustments, it was not possible to reach any point of understanding on four of these elements: we are speaking of federalism, the role of Islam in legislation, the identity of Iraq, and the distribution of resources. It is not difficult, therefore, to comprehend how, without a common position on these matters, no charter of rights could ever be effective.
While awaiting for events that could possibly change things also at a very deep level, let us examine what is not destined to be changed, starting from the most indecipherable affirmation, which is the opening statement of the document (Chapter One, Basic Principles). It is written that the principles on which the new Constitution is based are essentially the following: Iraq is a country of Islamic religion which tolerates also other faiths (verbatim: “Islam is the official religion of the State and it is considered the source of legislation”), and it is a Country where individual freedom is guaranteed; it is based on a federal system which is democratic and representative.
In the subsequent lines, other fundamental rules are listed: no law which contradicts the rules of Islam can be adopted; no law which contradicts the democratic rules can be passed; no law can contradict the fundamental rights sanctioned by the Constitution. Anyone who understands something, please raise their hand.
Wherever the Islamic law is in force,(Iran, Saudi Arabia, Emirates) it limits, for its very nature, the individual sphere. It is sufficient to think of the sphere of the woman and, therefore, the Islamic State equation – democracy is pure nonsense. Furthermore, who could ever settle the inevitable conflict between “shariah” and individual or group freedom if not a court of the Constitution, which, however, in the approved text of the 15th of October, is non-existent?
This hasty charter of dreams does not go as far as providing for a Guarantee and Control Body, at least, not as we are accustomed to understand it in a representative democracy. On the contrary, it decrees the creation of a Council of Representatives, a Supreme Judiciary Council and a Supreme Federal Court.

However, leaving aside high-sounding names, let us try to analyse the concrete responsibilities of these future bodies. The first must elect the President of the Republic and can even remove same. It has the right to declare war with an internal majority of two thirds (let’s try to guess which….). However, in its turn, the Council of Representatives can be dissolved if jointly requested by the President and the Prime Minister. It looks more like a balance of powers than a court of rights.
The Supreme Judiciary Council has the task of organizing and administering the whole apparatus of the courts; the Federal Court could dominate it, were it not for its limited responsibilities, in practice, that of promulgating the electoral results and of acting as Public Prosecutor in the case of proceedings against the President and the Prime Minister. That is all. There is no mention of cases of constitutional illegitimacy, of disagreements between religious and civil rules, or to clashes over conceptions of the State.
There is another element to be considered with attention: the vagueness of the Charter concerning the composition of the three above mentioned bodies has already started to create confusion and a race to secure posts has begun. For example, the Shiite majority claims and has already formally declared, that, in an Islamic state, the Representatives Council and the Judiciary Council should be, in the majority, composed of clergy, maybe not “ayatollah”, but certainly, experts in Islamic customs.
It is as if in the post-war Afghanistan, it had been decided to entrust the administration of the State to an assembly of “mullah”.
The rough and ready approach to the design of these organizations already risks making the Council of Representatives look like the ill-famed Council of Sages, which in Shiite Iran (and therefore, Brother) superimposes its own judgement over any policy of the State.
But there is a second level of responsibility, which is even more difficult to decipher. In Chapters four and five, the Iraqi Constitution deals with the question of federalism and of its powers. It addresses the question with the same vagueness as before, reserving for the central power, certain fields of action, (foreign politics, defence, finance and customs, radio, TV and postal services, budget, census, health services, hydro and oil resources management), to then contradict itself, adding literally and candidly, “Other powers are divided with the regional authorities: customs, electricity ( tied to the oil), environment, public planning (this has nothing to do with the budget?), health services (again) and even education”. To find one’s way around the entanglement of these powers would need the ability of an enigmatist.
The last problem is that of the distribution of responsibilities relative to the armed forces. It is true that the Iraqi army and police are rebuilding themselves, albeit with some fatigue, but the Constitution provides no terms, instruments, legislative paths towards the disbandment of the strong military components already existing in the country.
These various military forces are: the “armata del Mahdi”, trained in Iran and partially absorbed by the police forces, but still present; the military force of Moqtada Al Sadr; the large and small groups, outgrowths of support to sundry political forces. Not to mention, naturally, the various Sunnite guerrilla formations, which go their own way, and the “jihaddist” groups which have sprung up in the Northwest and continue to show-off their military power between Ramadi and Falluja.
In conclusion, the only realistic note to this Constitution is that which, in the moment of its forced approval, came from the mouth of a mysterious Shiite constituent: “Well, if nothing else, in the Constituent assembly, we didn’t shoot each other”, commented the Father of the Country, and perhaps, for these times in Iraq, the result is not to be entirely despised.