17 November 2003

Agreement on formation of Iraq's new government

The agreement between the U.S.-led coalition and the Iraqi Governing Council on the formation of Iraq's new government.

1. The ''Fundamental Law.'' To be drafted by the Governing Council in close consultation with the Coalition Provisional Authority. Will be approved by both the GC and CPA, and will formally set forth the scope and structure of the sovereign Iraqi transitional administration.

Elements of the ''Fundamental Law'':

Bill of rights, to include freedom of speech, legislature, religion; statement of equal rights of all Iraqis, regardless of gender, sect, and ethnicity; and guarantees of due process.

Federal arrangement for Iraq, to include governorates and the separation and specification of powers to be exercised by central and local entities.

Statement of the independence of the judiciary, and a mechanism for judicial review.

Statement of civilian political control over Iraqi armed and security forces.

Statement that Fundamental Law cannot be amended.

An expiration date for Fundamental Law.

Timetable for drafting of Iraq's permanent constitution by a body directly elected by the Iraqi people; for ratifying the permanent constitution; and for holding elections under the new constitution.

Drafting and approval of ''Fundamental Law'' to be complete by Feb. 28, 2004.

2. Agreements with Coalition on Security. To be agreed between the CPA and the GC. Security agreements to cover status of Coalition forces in Iraq, giving wide latitude to provide for the safety and security of the Iraqi people.

Approval of bilateral agreements complete by the end of March 2004.

3. Selection of Transitional National Assembly. Fundamental Law will specify the bodies of the national structure, and will ultimately spell out the process by which individuals will be selected for these bodies. However, certain guidelines must be agreed in advance.

The transitional assembly will not be an expansion of the GC. The GC will have no formal role in selecting members of the assembly, and will dissolve upon the establishment and recognition of the transitional administration. Individual members of the GC will, however, be eligible to serve in the transitional assembly, if elected according to the process below.

Election of members of the Transitional National Assembly will be conducted through a transparent, participatory, democratic process of caucuses in each of Iraq's 18 governorates.

In each governorate, the CPA will supervise a process by which an ''Organizing Committee'' of Iraqis will be formed. This Organizing Committee will include five individuals appointed by the Governing Council, five appointed by the Provincial Council, and one appointed by the local council of the five largest cities within the governorate.

The purpose of the Organizing Committee will be to convene a ''Governorate Selection Caucus'' of notables from around the governorate. To do so, it will solicit nominations from political parties, provincial-local councils, professional and civic associations, university faculties, tribal and religious groups. Nominees must meet the criteria set out for candidates in the Fundamental Law. To be selected as a member of the Governorate Selection Caucus, any nominee will need to be approved by an 11/15 majority of the Organizing Committee.

Each Governorate Selection Caucus will elect representatives to represent the governorate in the new transitional assembly based on the governorates percentage of Iraq's population.

The Transitional National Assembly will be elected no later than May 31, 2004.

4. Restoration of Iraq's Sovereignty. Following the selection of members of the transitional assembly, it will meet to elect an executive branch, and to appoint ministers.

By June 30, 2004 the new transitional administration will be recognized by the Coalition, and will assume full sovereign powers for governing Iraq. The CPA will dissolve.

5. Process for Adoption of Permanent Constitution. The constitutional process and timeline will ultimately be included in the Fundamental Law, but need to be agreed in advance, as detailed below.

A permanent constitution for Iraq will be prepared by a constitutional convention directly elected by the Iraqi people.

Elections for the convention will be held no later than March 15, 2005.

A draft of the constitution will be circulated for public comment and debate.

A final draft of the constitution will be presented to the public, and a popular referendum will be held to ratify the constitution.

Elections for a new Iraqi government will be held by Dec. 31, 2005, at which point the Fundamental Law will expire and a new government will take power.

This is not an especially good process. The International Crisis Group released a report on 13 November which says, among other things, that:

As this report goes to press on 13 November 2003, the latest indications are that Washington has broadly accepted the need to decouple governance and constitution-making, but that it is no closer than before to accepting a wider oversight role for the UN in either area. Several options are to be the subject of further consultations between CPA head Paul Bremer and the Interim Governing Council. They include elections in the first half of 2004 for a body that would both appoint a transitional government and act as a constituent (ie. constitution-writing) assembly or, alternatively, immediate efforts to transfer power to a revamped and broadened Interim Governing Council acting as a provisional government until a constitution is drafted. As the U.S. Administration moves forward, it will be important that it not rush into a decision, but rather keep an open mind on the full range of options canvassed here. This is its second chance to get it right; there may not be a third.

The occupying powers have a continuing responsibility to provide Iraqis with a secure environment in which orderly government can be conducted, consultations on the constitutional process held nationwide and elections organised safely. Because the constitution-making endeavour is and should be a strictly Iraqi-owned project, the U.S. and other states should resist the temptation of interference or, worse, micro-management. Most importantly, Iraqis should be free from the kinds of unhelpful pressures � in the form of demands for unrealistic timetables and deadlines � that threaten to undermine not only the constitutional process but, through it, the future stability of the country.

Decoupling the issues of governance and constitution-making is a good thing. The use of the caucuses is likely to lead to questionable legitimacy. The ICG's concern with Shi'a dominance is understandable but it's hard to imagine a system of majority rule where the majority does not rule. Equally it's hard to understand why the US fought so hard to exclude UN participation when that could only add legitimacy and expertise to this process.

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