Permanent Constitution for Iraq: Pitfalls Ahead

Iraq has reached a critical point in its return to democratic government. A new constitution must soon be agreed to allow elections by the end of the year. Ethnic and religious divisions could still stand in the way and provoke a crisis.

The World Today Updated 9 October 2020 Published 1 August 2005 4 minute READ

Salem Chalabi

Former Head, Iraq special tribunal

In May, the elected transitional national assembly selected a 55 person committee to take charge of drafting the constitution. After much debate, they chose a Shi’ite cleric as chairman, with a veteran Kurdish politician as vice chairman. The Transitional Administrative Law requires a draft constitution be in place by August 15 – a monumental task.

To understand the constitutional process it is essential to appreciate the political and security background. And the security environment cannot be looked at simply from a counter-insurgency perspective, its causes must be reviewed too.

Sadly confessionalism and ethnicity are the primary driving political forces in contemporary Iraq. Without taking this into account, it is easy to misunderstand the country and its recent history and political thinking. There are three major communities – Shi’ite Muslim, Sunni Muslim and Kurdish – as well as a number of other smaller groups, such as Turcomans and Christians. Although some claim that interests cross these ethnic and sectarian lines, it is more common for Iraqis to look at politics from the viewpoint of their sects and ethnicities.

The elections in January are an example. The two most successful lists were those representing Shi’ites and Kurds. Lists that attempted to cross ethnic or sectarian lines fared badly, with many finding difficulty to get more than a couple of thousand votes.

Cementing loss

Where does each community stands post- Saddam Hussein? One of the foundations of current political thought of the largest community, the Shi’ite Arabs, and of the Kurds, is the view that the Sunnis monopolised power for the last eighty years or so. This lies at the root of their political beliefs and practices.

Whereas the Kurds had the luxury of being autonomous over the last thirteen years, and therefore have been able to reduce the role of central government in Kurdistan, the Shi’ite Arabs did not fare so well. Accordingly, their approach is that Sunni domination must be rectified.

Being a numerical majority, and substantially united under one list, the Shi’ites supported the election, knowing they would become the primary beneficiaries of any political system it produced. The Kurds did the same, with both their political parties uniting for electoral purposes.

Voting and the run-up to it, were waking up calls for the Sunni community. Understanding the perceptions of the Kurdish and Shi’ite communities towards them – that they believed the Sunnis monopolised power and that the Shi’ites and Kurds want to make sure that this never happens again – the Sunnis were worried that by participating in a process which in some way cemented their loss of power, they would legitimise the loss. So they prevaricated between attempting to get involved – in order not to alienate the others – and destabilising it, both politically and in security terms.

Tight timetable

The Transitional Administrative Law, passed in early March last year, provides the framework for the constitutional process. It laid down the timetable for the elections for the transitional national assembly and the adoption of the constitution. The constitutional committee and the transitional national assembly are required to comply with a timetable set without their involvement. There is also the possibility of conflict if the Transitional Administrative Law, which originated from the Iraqi Governing Council, a non-elected body, is seen to have precedence over the elected transitional national assembly.

Following the adoption of a permanent constitution by the assembly, there will be a referendum, prior to it becoming effective. If this referendum is successful, then elections for the permanent parliamentary system will follow.

Kurdish sensitivity

By far the most contentious issue was the relationship between central government and the Kurdistan regional government. The Kurds had suffered greatly under various governments in Baghdad, but most savagely under Saddam. They had also enjoyed a measure of autonomy for over thirteen years, protected by coalition air cover. This allowed them to develop institutions that were only answerable to Kurds.

In addition, a large proportion of younger Kurdish citizens had no knowledge of life under a central government and do not even speak Arabic. In post-Saddam Iraq, the central government, or at least those Arab politicians who hold sway in Baghdad, have no political or military leverage over the Kurds. Because of these factors, the Kurds were able to obtain most of what they asked for – an acceptance of some sort of federalism. But this is likely to continue being a critical constitutional problem.

Shi’ite politicians who have gained prominence in post- Saddam Iraq are largely those who had previously been in opposition abroad and had long working relationships with Kurdish leaders. But these are not the only Shi’ites whose views need to be taken into account. The Shi’ites who remained in Iraq and suffered under Saddam did not really appreciate Kurdish sensitivities. On the whole, they believed that Kurds had gained far too much in the Transitional Law at their expense. They were less willing to compromise than their previously exiled fellows.

The role of religion in the permanent constitution, has attracted much attention and it is an extremely important issue both internationally and locally. The wording agreed in the Transitional Administrative Law was:

‘Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law [addressing individual rights] may be enacted during the transitional period.’ The debate was over whether Islam would be ‘the’ source of legislation, proposed by Islamists, or ‘a’ source of legislation, proposed by secularists. One solution was to state that Islam was ‘a’ source of legislation, provided that no law would be enacted that contradicted it. The secularists believed this was worse than stating that Islam was ‘the’ source of legislation. The language finally agreed was too vague, and would not have come about had there not been arm twisting by the Americans. So far it has not be tested.

As a result of the election victory of the United Iraqi Alliance, the power of the Islamists within this list and the appointment of an Islamist scholar, Shaykh Humam Hamoudi, as chair of the constitutional committee, this may be revisited and resolved in a way more acceptable to Islamist groups.

Checks on power

A further procedure intended to ensure that decision-making is reached by consensus was included in the Transitional Law. Any legislation would require the unanimous approval of the presidency council, which consists of a president and two vice presidents. The idea was there would be a representative of each of the three major communities on the council, and each would have a veto over legislation.

Although executive power is in the hands of the prime minister, his powers could be curtailed by the presidency council and the legislative body. These checks and balances would attempt to stop any abuses by the executive, and prohibit an individual from taking power. The drafters of the law were well aware of the history of Iraq and the ease with which unchecked powers could be abused.

Feeling excluded

One of the key criticisms of the Transitional Law, and of previous interim constitutions, was that there was not enough public involvement. They were the result of political deals behind closed doors and effectively imposed from above; this affected their legitimacy. There was to be significant public input in the preparation of the permanent constitution, but, unfortunately, planners failed to anticipate events that have made the timetable for its adoption extremely tight.

Since the timetable was set, the security situation has deteriorated, with the result that it is difficult for there to be sufficient open debate. Neither was it anticipated it would take two months after the elections for a cabinet to be formed and another two for the assembly to put a working constitutional committee in place. This has constricted the time for public constitutional debate.

Lack of time may risk creating a situation in which the draft permanent constitution adopted by the transitional national assembly appears to be imposed because there was insufficient debate. This may lead to rejection by sufficient numbers of the population so that the draft becomes void. With significant members of the Sunni population feeling excluded from the political process and constitutional committee, they might also decide to vote against the draft.

To protect smaller communities from domination by larger ones, the Transitional Administrative Law provides that, if two- thirds of the voters in three of the eighteen governorships reject the draft constitution, it will have to be rewritten. The Kurdish population alone dominates three governorships. Rejection would cause a constitutional crisis.

Significant issues, including the details of the federal nature of the state, need to be resolved prior to the implementation of the permanent constitution. There may simply not be enough time and therefore the constitution may end up including provisions that appear interim in nature, such as arrangements for the resolution of the dispute over control of Kirkuk and its oilfields, which may need to be amended later.

The constitutional process is therefore full of pitfalls, and the timetable has made the job of the constitutional committee that much more difficult. Pressure by both the international community – the United States sees the adoption of the constitution as a key exit step – and Iraqi politicians – mainly Shi’ites and Kurds – to complete the task quickly, adds to the difficulties ahead.