Friday, September 02, 2005
Iraqi Constitution
The story of the birth of Iraq’s second ‘democratic’ Constitution
The main tasks of the elected National Assembly following the Iraqi elections of January 2005 were to form a new government and then draft a constitution by August 15th to be presented to the Iraqi people through a referendum by October 15th.
The government was formed after about three months of horse-trading and political haggling. It was a bad government by any standard; corruption, incompetence and ineffectiveness to an unprecedented level. It failed miserably… and continues to fail.
The Assembly’s next task was drafting the constitution.
They formed a committee for that purpose. They had every right to form that committee exclusively from elected members of the Assembly. But there was a problem; there were large segments of the Iraqi people not represented in that Assembly.
Yet people on the ground (including most members of the elected assembly) knew that they could not govern the country or form a government, or write a constitution, without participation of those ‘absent segments’.
So, the Assembly went through a long-drawn process to select people to represent those ‘absent’ segments. The process was blatantly undemocratic, but it was the only available route!
They were first appointed as ‘consulting’ members. They refused. They insisted on full membership of the committee. They were granted that wish. They preferred to call themselves representatives of the ‘absent segment’. But, through the persistence of the media, they became generally know as representatives of the ‘Sunni Arabs’.
The National Assembly then agreed to forge the new constitution through consensus, including consensus among members of the committee entrusted with drafting the constitution.
Then the political dance began.
Hollywood Drama
It was more like a second rate American movie or TV series complete with deadlines that have to be met… and a ticking clock. Seven days to go… 24 hours to go… 2 hours to go!!
When the dials reached zero with the task still unfinished, the rules of the game, as laid out by the sacred TAL, were amended, unanimously. The law was changed to give them 7 more days, and the clock started ticking again. The new deadline was missed; then… the law and the deadlines were all simply and unceremoniously ignored!
Hollywood would have been furious. There was no respect to time limits anymore, no regard for revered traditions!
They broke their own laws!
The process was painful and intricate. There were many compromises. To be fair, the American administration, acting through Ambassador Khalilzad, tried hard to pressure all groups concerned to reach agreement.
But there was ‘nothing doing’ as Americans would say! There were so many ‘red lines’ by various factions. The visions of the very nature of the country different parties had were so diverse. Horse traders cannot build or rebuild nations.
During that process, and 4 days before the deadline, Mr. Abdul Aziz al Hakeem, head of the pro-Iran Supreme Council for the Islamic Revolution in Iraq (SCIRI) quite suddenly proposed a (Shiite) autonomous, federal region similar to the Kurdish one to be composed of the central and southern provinces of Iraq. There was uproar from many ‘Shiite’ quarters (including some SCIRI coalition partners). There was much resentment in the so-called ‘Shiite’ street. Mr. Hakeem quietly backed down! That ploy was largely seen as an Iranian bargaining bid for power in Iraq.
Many people were now convinced that the undeclared objective was not a federal country but a loose confederacy as a step towards the disintegration of the country.
When there was deadlock, the Drafting Committee itself was by-passed and compromises were forged by the ‘leaders of the main political blocs’.
The ‘political’ draft was handed to the Drafting Committee. There were objections from members of that committee.
The requirement of ‘consensus’ was ignored. The draft was passed on to the Assembly with written reservations of some of the members.
The draft was then ‘passed’ from the Assembly without putting it to a vote! According to the chairman of the Drafting Committee, the reason was that if the Assembly voted on the draft that would turn it into law!!
‘Representatives’ of the ‘absent’ component of the Iraqi people were furious.
Thus Iraq’s second ‘democratic’ constitution within a hundred years was half-baked. All the seeds of chaos and instability are there! But these are all secondary concerns. The Bush Administration has, yet again, delivered: Iraq now has a draft of a constitution painstakingly drawn by a democratically elected parliament and the Iraqi people will have their say on it in a democratic referendum.
What’s wrong with it?
Well, to be fair, not much in terms of words! It is the fear behind those few offending words that are the focus of bitter differences.
If you read through the document itself, you will find many high ideals and many good concepts. I personally found more than 80% of it quite acceptable, even desirable. Incidentally, those items were not much different from Saddam’s Constitution!
[An English translation of the full text of the document can be found at... ]
My own opinion is that the document (being born out of hurried political bargaining) lacks unity of substance and has some inherent built-in contradictions in addition to quite a few linguistic errors and obvious legal ambiguities. I must add that these are mostly rectifiable. I also have other reservations about the political design of the parliamentary system and its effectiveness in firmly leading the country in the turbulent times ahead. I feel that a strong presidency would be more effective. But these are personal preferences and views.
America was appeased with one major clause denouncing the development of weapons of mass destruction.
The main complaints however are about the design of the political structure of the country! Many people feel that, as written, the concept of federal government would lead to the disintegration of the country.
So, why will it not work?
The answer is simple: all indications are that large segments of the population are dead-set against this document.
This in fact is quite dangerous in principle. This is not some law that needs a simple majority to pass; it is a constitution - a contract between the people of Iraq that defines the shape of the country they, their children and their children’s children will want to live in. Iraq cannot afford much controversy about it. There needs to be some form of general consensus about it. Unfortunately, this is lacking at the moment.
Many groups are going to resist it through the referendum (and outside it).
Will it pass the referendum? Possibly. There are several factors that may influence the outcome in favor of the draft in a manner very similar to what happened during the elections: large (ethnic and sectarians) forces behind it, a super-power of occupation with a political desire to look successful in the eyes of its own people (and the rest of the world), funding and propaganda and the ever-present mysterious element called Sistani. Furthermore, there will be the feeling that if the draft is rejected, the whole game will be back to square one – the Assembly will be dissolved, the elections re-run and the whole ordeal will have to gone through all over again. Many people are simply too tired for all that. It may just go through.
The problem is that many people (and believe me, many people) will feel quite bitter about it; People who will see it as a Constitution that sows the seeds of the ethnic and sectarian divisions being enshrined in a document that was drawn under the auspices and the supervision of a hostile occupation.
So, to my mind, if the referendum comes out in favor of this draft through a 51 or even a 60% vote, that will be a death blow to it… and to future stability. Imagine 40% of the population denying the legitimacy of their own constitution. Many will not concede ‘democratic’ defeat peacefully.
Add to that the significant number of people who will not vote. Now these people are not similar to those people who do not go to the polls in a stable democracy and who do not count. Many of those will not participate through rejection of the legitimacy of the whole process. It is already felt by many that if they cast their choice at the boxes, then that means an implicit endorsement of the process, which would mean that they would have to accept the result. So, many of those people will simply boycott the whole process and keep their belief that the whole thing was illegitimate.
And that is the seed of future turmoil.
Is there a solution?
Of course! Oddly, I believe that the solution is through the very vehicles that produced this gloomy outlook: Democracy and Federalism!
This may sound contradictory… but it isn’t really.
We have had elections but they did not produce a democracy. Consequently, they did not result in security or stability. Elections that yield 275 members who represent 275 districts are not really that difficult to implement, are they?!
If, for example, Fallujah is not ready to conduct elections, then it can do so in its own time, when conditions permit. Its seat in the Assembly will be reserved. If people in Shiite Nassiriyyah down south are presented with a number of candidates who are all Shiites, people will not be asked to vote Shiite! Perhaps they may start considering economic and other political issues to choose between candidates. The same will be true in Kurdish Suleimaniya up north. All candidates will naturally be Kurds. All candidates in Sunni Haditha in the west will be Sunnis. All sects and ethnicities will be represented without making it the only issue of the elections.
The resulting elected assembly will be far from homogeneous… but more representative of the country. Then let that odd, democratic mixture fight it out in parliament with words… and not in our cities with bombs and bullets!
Federalism is possible through more power to the 18 provinces of Iraq – a de-centralized form of government (with the components not likely to cede from the country)… not through a loose Confederacy that many people feel would, in time lead to the breakdown of the country along ethnic and sectarian lines.
It is those people who came to power on those sectarian and ethnic elections who designed this monstrous political system. It is only natural that they would design the future of the country along the same lines.
Democracy was not the problem. It was the electoral system used that was!
Federalism is not the problem. It was the use of the term as a recipe for destroying our country as we know it that was!
There are already some voices, mainly outside the Assembly, calling for the Assembly to be dissolved since, according to TAL, this assembly has failed to deliver the draft of the constitution as requested by that law on the time specified.
Any chance of that happening? Not really. There is little chance at the moment of the electoral system being changed to affect a true representation of the country.
Another, more realistic alternative, is to give the process more time (and to hell with TAL’s deadlines and time limits) and force the politicians involved to hammer out those differences to reach a better consensus before going to the country with the draft. There is some hope there; a few says ago Ambassador Khalilzad hinted that some changes ‘can’ be made to the draft. That sentiment was echoed by a few members of the Assembly.
Is the American administration beginning to have more respect for popular feedback than the elected neo-Iraqi politicians?
The main tasks of the elected National Assembly following the Iraqi elections of January 2005 were to form a new government and then draft a constitution by August 15th to be presented to the Iraqi people through a referendum by October 15th.
The government was formed after about three months of horse-trading and political haggling. It was a bad government by any standard; corruption, incompetence and ineffectiveness to an unprecedented level. It failed miserably… and continues to fail.
The Assembly’s next task was drafting the constitution.
They formed a committee for that purpose. They had every right to form that committee exclusively from elected members of the Assembly. But there was a problem; there were large segments of the Iraqi people not represented in that Assembly.
[Propagandists had always maintained that that Assembly represented the Iraqi people. Those large segments that did not take part in those elections (that I wrote so much about at the time) were totally ignored by pro-administration rosy-picture painters. It is now clear that was a minor concern for domestic US political considerations… or so it was thought! Again and again it was stressed that the administration was brilliantly successful in carrying out elections in Iraq, to their own timetable… regardless of facts on the ground.
It was a major weakness of the ‘design’ of those elections. Yet, those elections were regarded as total success. The administration had delivered!
The simple solution that there should be an elected representative for each of the 275 electoral districts of Iraq (who could join the elected assembly when conditions permitted) was totally ignored in favor of a system that made the whole country a single electoral district. The simpler requirement that elections were postponed to allow volatile regions to take part, were equally ignored.]
Yet people on the ground (including most members of the elected assembly) knew that they could not govern the country or form a government, or write a constitution, without participation of those ‘absent segments’.
So, the Assembly went through a long-drawn process to select people to represent those ‘absent’ segments. The process was blatantly undemocratic, but it was the only available route!
They were first appointed as ‘consulting’ members. They refused. They insisted on full membership of the committee. They were granted that wish. They preferred to call themselves representatives of the ‘absent segment’. But, through the persistence of the media, they became generally know as representatives of the ‘Sunni Arabs’.
The National Assembly then agreed to forge the new constitution through consensus, including consensus among members of the committee entrusted with drafting the constitution.
Then the political dance began.
Hollywood Drama
It was more like a second rate American movie or TV series complete with deadlines that have to be met… and a ticking clock. Seven days to go… 24 hours to go… 2 hours to go!!
When the dials reached zero with the task still unfinished, the rules of the game, as laid out by the sacred TAL, were amended, unanimously. The law was changed to give them 7 more days, and the clock started ticking again. The new deadline was missed; then… the law and the deadlines were all simply and unceremoniously ignored!
Hollywood would have been furious. There was no respect to time limits anymore, no regard for revered traditions!
They broke their own laws!
The process was painful and intricate. There were many compromises. To be fair, the American administration, acting through Ambassador Khalilzad, tried hard to pressure all groups concerned to reach agreement.
But there was ‘nothing doing’ as Americans would say! There were so many ‘red lines’ by various factions. The visions of the very nature of the country different parties had were so diverse. Horse traders cannot build or rebuild nations.
During that process, and 4 days before the deadline, Mr. Abdul Aziz al Hakeem, head of the pro-Iran Supreme Council for the Islamic Revolution in Iraq (SCIRI) quite suddenly proposed a (Shiite) autonomous, federal region similar to the Kurdish one to be composed of the central and southern provinces of Iraq. There was uproar from many ‘Shiite’ quarters (including some SCIRI coalition partners). There was much resentment in the so-called ‘Shiite’ street. Mr. Hakeem quietly backed down! That ploy was largely seen as an Iranian bargaining bid for power in Iraq.
Many people were now convinced that the undeclared objective was not a federal country but a loose confederacy as a step towards the disintegration of the country.
When there was deadlock, the Drafting Committee itself was by-passed and compromises were forged by the ‘leaders of the main political blocs’.
The ‘political’ draft was handed to the Drafting Committee. There were objections from members of that committee.
The requirement of ‘consensus’ was ignored. The draft was passed on to the Assembly with written reservations of some of the members.
The draft was then ‘passed’ from the Assembly without putting it to a vote! According to the chairman of the Drafting Committee, the reason was that if the Assembly voted on the draft that would turn it into law!!
‘Representatives’ of the ‘absent’ component of the Iraqi people were furious.
Thus Iraq’s second ‘democratic’ constitution within a hundred years was half-baked. All the seeds of chaos and instability are there! But these are all secondary concerns. The Bush Administration has, yet again, delivered: Iraq now has a draft of a constitution painstakingly drawn by a democratically elected parliament and the Iraqi people will have their say on it in a democratic referendum.
What’s wrong with it?
Well, to be fair, not much in terms of words! It is the fear behind those few offending words that are the focus of bitter differences.
If you read through the document itself, you will find many high ideals and many good concepts. I personally found more than 80% of it quite acceptable, even desirable. Incidentally, those items were not much different from Saddam’s Constitution!
[An English translation of the full text of the document can be found at... ]
My own opinion is that the document (being born out of hurried political bargaining) lacks unity of substance and has some inherent built-in contradictions in addition to quite a few linguistic errors and obvious legal ambiguities. I must add that these are mostly rectifiable. I also have other reservations about the political design of the parliamentary system and its effectiveness in firmly leading the country in the turbulent times ahead. I feel that a strong presidency would be more effective. But these are personal preferences and views.
America was appeased with one major clause denouncing the development of weapons of mass destruction.
The main complaints however are about the design of the political structure of the country! Many people feel that, as written, the concept of federal government would lead to the disintegration of the country.
So, why will it not work?
The answer is simple: all indications are that large segments of the population are dead-set against this document.
This in fact is quite dangerous in principle. This is not some law that needs a simple majority to pass; it is a constitution - a contract between the people of Iraq that defines the shape of the country they, their children and their children’s children will want to live in. Iraq cannot afford much controversy about it. There needs to be some form of general consensus about it. Unfortunately, this is lacking at the moment.
Many groups are going to resist it through the referendum (and outside it).
Will it pass the referendum? Possibly. There are several factors that may influence the outcome in favor of the draft in a manner very similar to what happened during the elections: large (ethnic and sectarians) forces behind it, a super-power of occupation with a political desire to look successful in the eyes of its own people (and the rest of the world), funding and propaganda and the ever-present mysterious element called Sistani. Furthermore, there will be the feeling that if the draft is rejected, the whole game will be back to square one – the Assembly will be dissolved, the elections re-run and the whole ordeal will have to gone through all over again. Many people are simply too tired for all that. It may just go through.
The problem is that many people (and believe me, many people) will feel quite bitter about it; People who will see it as a Constitution that sows the seeds of the ethnic and sectarian divisions being enshrined in a document that was drawn under the auspices and the supervision of a hostile occupation.
So, to my mind, if the referendum comes out in favor of this draft through a 51 or even a 60% vote, that will be a death blow to it… and to future stability. Imagine 40% of the population denying the legitimacy of their own constitution. Many will not concede ‘democratic’ defeat peacefully.
Add to that the significant number of people who will not vote. Now these people are not similar to those people who do not go to the polls in a stable democracy and who do not count. Many of those will not participate through rejection of the legitimacy of the whole process. It is already felt by many that if they cast their choice at the boxes, then that means an implicit endorsement of the process, which would mean that they would have to accept the result. So, many of those people will simply boycott the whole process and keep their belief that the whole thing was illegitimate.
And that is the seed of future turmoil.
Is there a solution?
Of course! Oddly, I believe that the solution is through the very vehicles that produced this gloomy outlook: Democracy and Federalism!
This may sound contradictory… but it isn’t really.
We have had elections but they did not produce a democracy. Consequently, they did not result in security or stability. Elections that yield 275 members who represent 275 districts are not really that difficult to implement, are they?!
If, for example, Fallujah is not ready to conduct elections, then it can do so in its own time, when conditions permit. Its seat in the Assembly will be reserved. If people in Shiite Nassiriyyah down south are presented with a number of candidates who are all Shiites, people will not be asked to vote Shiite! Perhaps they may start considering economic and other political issues to choose between candidates. The same will be true in Kurdish Suleimaniya up north. All candidates will naturally be Kurds. All candidates in Sunni Haditha in the west will be Sunnis. All sects and ethnicities will be represented without making it the only issue of the elections.
The resulting elected assembly will be far from homogeneous… but more representative of the country. Then let that odd, democratic mixture fight it out in parliament with words… and not in our cities with bombs and bullets!
Federalism is possible through more power to the 18 provinces of Iraq – a de-centralized form of government (with the components not likely to cede from the country)… not through a loose Confederacy that many people feel would, in time lead to the breakdown of the country along ethnic and sectarian lines.
It is those people who came to power on those sectarian and ethnic elections who designed this monstrous political system. It is only natural that they would design the future of the country along the same lines.
Democracy was not the problem. It was the electoral system used that was!
Federalism is not the problem. It was the use of the term as a recipe for destroying our country as we know it that was!
There are already some voices, mainly outside the Assembly, calling for the Assembly to be dissolved since, according to TAL, this assembly has failed to deliver the draft of the constitution as requested by that law on the time specified.
Any chance of that happening? Not really. There is little chance at the moment of the electoral system being changed to affect a true representation of the country.
[The assembly is at the moment discussing a draft of a new election law. Grudgingly, they are examining the proposal to make Iraq 18 electoral districts instead of one; a small improvement… but not enough.
Following the discussions in the Assembly, I was shocked to find that the proposals seem to include setting aside some seats for small religious and ethnic minorities! On the face of it, this sounds like a fair proposal. In fact it is a disaster as far as building a modern state is concerned. If one thinks about this proposal carefully, one would find a system breading an ‘improvement’ of its own kind. Are these people evil? No, they are only ‘ordinary’ politicians, horse traders and war lords entrenching and clutching to a system that gives them advantage in the quest for power.]
Another, more realistic alternative, is to give the process more time (and to hell with TAL’s deadlines and time limits) and force the politicians involved to hammer out those differences to reach a better consensus before going to the country with the draft. There is some hope there; a few says ago Ambassador Khalilzad hinted that some changes ‘can’ be made to the draft. That sentiment was echoed by a few members of the Assembly.
Is the American administration beginning to have more respect for popular feedback than the elected neo-Iraqi politicians?
