WASHINGTON, 7 December 2003 — US and Iraqi negotiators are confronting problems over the role of Islam in government and the status of Kurdish regions as they try to write a “fundamental law’’ — the precursor to an Iraqi constitution and a key first step in ending the US occupation of Iraq.

Though much attention has been focused on the jockeying over how Iraqis will be elected to a transitional national assembly, also important is the fundamental law that will control the interim government’s actions.

As outlined last month in a signed agreement between US administrator Paul Bremer and the Iraqi Governing Council, the fundamental law is supposed to be finished by Feb. 28 and provide a timetable for drafting a constitution and holding national elections in time for the United States to turn over sovereignty by June 30. That deadline is threatened by unresolved issues such as the separation of mosque and state.

“The fundamental law has all the same problems as the constitution,’’ said Noah Feldman, an assistant professor of law at New York University who has specialized in Arab law and is consulting with Bremer on legal issues in Iraq.

As well as setting up the election schedule, the fundamental law is supposed to establish the equivalent of a bill of rights for Iraqi citizens, set up a federal-type government with powers divided between the central and local entities, and create an independent judiciary with the power to review actions by the legislative and executive branches. In other Arab countries, such temporary laws were in effect for years before being replaced by constitutions.

“The role of religion in their society and the relationship between subnational government entities and the national government are issues the Iraqis are working through with Bremer,’’ said Sean McCormack, a foreign policy spokesman for the White House. “They will have to come to their own accommodation.’’

Religion is a key first problem. Iraq’s 1925 constitution and the one in effect during Saddam Hussein’s reign held that Islam is the state religion, even though the Iraqi dictator downgraded religion and persecuted Shiite clergy.

Bremer has repeatedly said it is up to the Iraqis to decide the role of Islam in their government, leaving some members of Congress and others concerned that the door may be opened for an Iranian-type theocracy. Last month, Bremer told an interviewer he thought the eventual constitution would “probably’’ favor Islam.

A representative of the influential Supreme Council for Islamic Revolution in Iraq (SCIRI) said last month that the omission of Islam from the agreement to set up the fundamental law was “an oversight, but should be repaired.’’ A coalition official responded that “it is up to the Governing Council to put it down in the fundamental law.’’

Iraqi Islamists “have become more militant’’ after reading Afghanistan’s draft constitution, Feldman said in a recent interview. The Afghan document not only makes Islam the state religion but also says no law may be incompatible with Islam. “We are going to have to put that (Islam as a state religion) in,’’ Feldman said. Judith Yaphe, a senior research fellow at National Defense University and a former senior CIA Iraq analyst, warned that there would be trouble if Congress insisted on separation of mosque and state. “This is an Islamic state. You can have freedom of religion, because the Qur’an protects Christians and Jews, but 95 percent there are Muslim.’’

On the human rights side, Feldman said, Iraq’s fundamental law “could incorporate all the international declarations, such as human rights, that Iraq has signed in the past.’’ Creation of a federal system for Iraq is proving more difficult than expected because of the expectations of the Kurds, according to Soner Cagaptay, a fellow at the Washington Institute for Near East Policy who specializes in Kurdish and Turkish affairs.

A letter that the Governing Council sent to the United Nations in November, when the council’s rotating presidency was held by Kurdish leader Jalal Talabani, said the fundamental law would not only deal with human and religious rights, but also introduce “a degree of decentralization’’ in administering the country.

Although that letter has been withdrawn because it was subsequently described as a “draft,’’ the Kurds have in mind a “more asymmetrical version’’ of a federation than the word normally implies, Cagaptay said.