Constitutional Calculus in Iraq: From Here to October 15

As this issue was being prepared, the final version of the proposed Iraqi Constitution had, a full month late, been sent to the United Nations for printing and distributon. The version read to the National Assembly on August 28 had been debated privately for weeks as negotiators tried to make the draft more acceptable to the Sunni Arabs, who were vowing to block the adoption of the Constitution.

Constitution-making is never easy; it is particularly difficult when a divided country riven by conflict seeks to complete a permanent charter for governance under the gun both literally and figuratively, with an imposed deadline (imposed by a non-elected authority) threatening the entire process. Yet the failure to approve a Constitution by October 15 will be a clear-cut failure not only for the US but for the Transitional Government of Iraq, which has at least as many reasons as the US to want to get a pact in place. It is a curious situation in a way, since many US and Iraqi observers would prefer to get the constitution right before putting it to a vote, but find themselves locked in a timetable of their own (or their predecessors’ in the Coalition Provisional Authority and the Iraqi Governing Council) devising.

The critical issue remains, as it has been for some time, the question of federalism (See the Dossier in the issue of August 1, 2005), for the Sunnis have resisted devolution of power to the regions even when assured that oil revenues will be shared. And ironically, the provision in the Transitional Administrative Law (TAL) which was included to assure the Kurds of retaining their own autonomy, allowing any three provinces to block a Constitution by a two-thirds “no” vote, now has ironically become the instrument which the Sunnis will try to use, and could succeed in using, to block the Constitution.

The Sunnis are not alone. Maverick Shi‘ite cleric Muqtada al-Sadr also wants to defeat the constitution, and his followers, combined with Sunni diehards, could very well poduce enough votes to block the pact’s adoption. Many Sunnis believe that then, with new elections, they could enhance their representation and force revisions to the Constitution. But a defeat could also encourage the insurgents.
Ironically, one thing which might prevent a two-third s rejection in three provinces is precisely the insurgency: the insurgents are determined to prevent people from going to the polls. If opponents of the Constitution are nevertheless unwilling to risk retaliation by going out to vote, they might end up giving victory to the supporters of the pact.

This Dossier looks at the challenges from here to October 15, and beyond, as well as some of the issues the Constiuttion poses.

When the Transitional Administrative Law (TAL) was adopted, Grand Ayatollah ‘Ali al-Sistani denounced the provision provided that the proposed Constitution would not be adopted if it were to be rejected by a two-thirds margin in any three Governorates. That was seen at the time as giving the Kurds a veto over the Constitution. Sistani continues to argue that federalism is not a good idea, at least in his public statements, but many of the followers of the United Iraqi Coalition, the list which Sistani endorsed in the elections, have embraced the idea: they envision one or more autonomous Shi‘ite governments in the south, which might give them greater control over future resources in the regions.

But ironically, it is no longer the Kurds who seem most likely to threaten to scuttle the Constitution: it is the Sunnis, who oppose federalism, fear that the Constitution is ruse to leave them without power or resources, and see the veto power as a potential means of forcing new elections. (New elections are due before the end of the year in any event: either for the new government established under the Constitution if it is approved October 15, or for a new National Assembly to draft a new Constitution, if it is rejected.) Since the Sunnis are underrepresented in the present Assembly, they believe they would get a better deal in new elections in which they would not boycott as they did in January.

As was noted in the August 1 Dossier, the issue of federalism has been the main sticking point, but not the only one. The question of control over resources is another major issue, though the last few weeks of tinkering with the draft Constitution sought to reassure the Sunnis that the country’s natural resources will be shared among all the regions. Many still believe there is some ambiguity about exploiting future resources, however. And since Iraq has done little exploration in recent years, it very likely has undiscovered petrochemical and other resources to be found.

Can the Sunnis block the Constitution? The so-called “Sunni triangle” provinces will probably be the main battleground: al-Anbar (with Falluja and Ramadi), Salah al-Din (with Tikrit and the core of the Saddam regime), and to a lesser extent the more mixed northern province of Nineveh (Ninawa on the map), centered on Mosul. But because Musa al-Sadr’s Shi‘ite followers are also opposing the Constitution, its fate in Baghdad, Babil, and some other provinces could be in doubt.

Still, a two-thirds “no” vote may be hard to deliver in a country where few people have had much experience of voting “no.” And as noted in the introduction, there is a countervailing problem: while the domestic Sunni leadership is urging Sunnis to go to the polls and vote “no,” the insurgency is threatening the lives of anyone who goes to the polls at all. This may keep turnout down even among those who want to vote against the Constitution. In al-Anbar, turnout for the January 30 election was only 2%; with the insurgency targeting Iraqis more than Americans these days, the turnout could be almost as low in October.

Would a low turnout in Sunni provinces mean that the Constitution would have a better chance of passage? It is of course hard to say: polling is difficult in a country where there is little history of opinion sampling and an ongoing guerrilla war.

The Constitution is, like most Constitutions drawn up in diverse societies, a work of compromise and caution. But compromise is still an unfamiliar element in Iraqi politics, and many Sunnis feel the Constitution must be rejected, not just amended when they increase their voice in government.

No one is totally happy. Many Kurds find that the Constitution offers too much role for clerical involvement and Shari‘a law. In fact, the Constitution merely makes Shari‘a “a” major source of legislation, not “the” major source; in this it follows many secular Middle Eastern constitutions.

Women’s rights advocates, however, are concerned about the ambiguities of personal status law. In place of a secular law of personal status, which Iraq had from 1959 until the fall of the Saddam Hussein regime, individual communities will have the right to choose, apparently, between the religious law of their community or civil law. But since the High Court will have religious legal scholars on it as well as secular ones, some suspect that even civil law will have a religious coloration. There is also the question of what happens in the event of divorce, for example, if the husband wants to decide matters under the Shari‘a and the wife prefers civil law, under which she would have more rights.

This sort of thing can also lead to court shopping, in which a person may change religious affiliation to get a better deal in court. This has been known to happen in Lebanon, where a similar system of personal status has been in place: sometimes Sunni fathers of daughters, wishing to give their daughters a better inheritance, have converted to Shi‘ism for that reason. (Under the Sunni legal schools, daughters inherit half a share compared with sons; under Shi‘ite practice, a full share.)

In fact, some critics of the new Constitution are arguing that it is not the provisions themselves that worry them, but the ambiguity of the text, an ambiguity that seems in some cases to have been deliberately designed to avoid conflict. What will the role of the shari‘a really be? Apparently individuals may have freedom of choice, but what happens when there is a conflict between two individuals? If two relatives quarrel over an inheritance, is civil, Sunni, or Shi‘ite law applicable if the two do not agree? With widespread intermarriage, what laws apply in a marriage or divorce in which the parties are from two different communities?

Clearly, there are many outstanding questions, questions that are natural enough in a society of intermixed communities. The ambiguities about future resources wealth, aspects of personal status law, and federalism make the Sunnis particularly uncomfortable. Certainly many Kurds will also be uncomfortable with an enhanced role for religious law and particularly the Shi‘ite clergy. But the Kurds already have one advantage: they alreadly enjoy autonomy. So long as the Shi‘ite clerics don’t interfere with Kurdistan, the Kurds will not object to the practices they may pursue in their own, potentially also autonomous, region.

The Sunnis for the most part (and here, as always in discussing Iraq, “Sunnis” means the Sunni Arabs; the Kurds are mostly Sunni but have a different approach), are convinced that federalism is undermining the unity of Iraq. They have also objected to the fact that Iraq is not explicitly defined as an Arab state (though in a compromise, the Constitution will now refer to Iraq as a founding member of the Arab League). In fact, the Preamble (reproduced on Page Eight) efers to all the peoples of Iraq, “Sunni and Shi‘ite, Arab, Kurd and Turkoman” without defining the state as Arab, while it emphasizes Iraq’s Mesopotamian historical identity.

These disputes are one of the reasons that at least some Iraqis, and not merely Sunnis, preferred to postpone a permanent Constitution. There are many questions of identity and legal status that may best be worked out by consensus over time. At least some Iraqis seem to feel that the United States is pushing for an early Constitution in part to justify its own policies to date and also to permit it to begin to disengage.

Certainly if the Constitution fails, the insurgents may claim that they have won a victory; certainly the US may feel that it has lost something. But if the Constitution fails, it will fail through a democratic vote, and what is more, it is being put to a democratic vote, with a clear provision for failure. In an area where Constitutions have often been imposted through phony referenda and honored in the breach once adopted, the fact that the framers of the Iraqi Constitution have taken it so seriously is probably one of the more encouraging signs to date that the Iraqi government is indeed trying to forge a new polity out of war and occupation.

If the Constitution fails, a new Assembly will be elected, presumably with more Sunni voices. If it succeeds, there will be early demands for amendments. In either case, the document will have been devised, written, rewritten, tinkered with, proposed, and voted upon. It will be a political product of a political process. And, whether it succeeds or fails, that is something new.

The Preamble of the Iraqi Constitution

Even the preamble of the Iraqi Constitution proved somewhat controversial in the negotiations, with its references to many ethnicities and to the “holy Imams” of Shi‘ism. The Preamble follows, in the English version distributed by several wire services, with minor amendments based on the Arabic text:

In the name of God, the Compassionate, the Merciful:

"Verily we have honored the children of Adam" [Qur’an Sura 17:70

We the sons of Mesopotamia [Wadi al-Rafidayn], land of the prophets, resting place of the holy Imams [of Shi‘ism], the leaders of civilization and the creators of the alphabet, the cradle of arithmetic: on our land, the first law put in place by mankind was written [reference to the Code of Hammurabi]; in our nation, the most noble era of justice in the politics of nations was laid down; on our soil, the followers of the Prophet and the saints prayed, the philosophers and the scientists theorized and the writers and poets created.

Recognizing God's right upon us; obeying the call of our nation and our citizens; responding to the call of our religious and national leaders and the insistence of our great religious authorities and our leaders and our reformers, we went by the millions for the first time in our history to the ballot box, men and women, young and old, on January 30, 2005, remembering the pains of the despotic band's sectarian oppression of the majority; inspired by the suffering of Iraq's martyrs — Sunni and Shi‘ite, Arab, Kurd and Turkoman, and the remaining brethren in all communities — inspired by the injustice against the holy cities in the popular uprising and against the marshes and other places; recalling the agonies of the national oppression in the massacres of Halabja, Barzan, Anfal and against the Faili Kurds; inspired by the tragedies of the Turkomen in Bashir and the suffering of the people of the western region, whom the terrorists and their allies sought to take hostage and prevent from participating in the elections and the establishment of a society of peace and brotherhood and cooperation so we can create a new Iraq, Iraq of the future, without sectarianism, racial strife, regionalism, discrimination or isolation.

Terrorism and takfir [declaring a Muslim to be an infidel] did not divert us from moving forward to build a nation of law. Sectarianism and racism did not stop us from marching together to strengthen our national unity, set ways to peacefully transfer power, adopt a manner to fairly distribute wealth and give equal opportunity to all.
We the people of Iraq, newly arisen from our disasters and looking with confidence to the future through a democratic, federal, republican system, are determined — men and women, old and young — to respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism.
We are the people of Iraq, who in all our forms and groupings undertake to establish our union freely and by choice, to learn yesterday's lessons for tomorrow, and to write down this permanent constitution from the high values and ideals of the heavenly messages and the developments of science and human civilization, and to adhere to this constitution, which shall preserve for Iraq its free union of people, land and sovereignty.

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