Can the Iraqi Constitution be saved?

Can the Iraqi Constitution be saved?

Can the Iraqi Constitution be saved?

Military analysis.
Aug. 26 2005 12:05 PM

Concessions Standoff

Can the Iraqi Constitution be saved?

Safeguarding the process 
Click image to expand.
Safeguarding the process

What are the prospects for the Iraqi Constitution? And what does that question have to do with the prospects for Iraq?

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Both matters are hazy, given the stretched-out proceedings and multiple delays of the National Assembly over the last two weeks: the sporadic refrains of imminent breakthrough, then breakdown. After Thursday night's persistent deadlock, it now seems that the Shiite and Kurdish delegates will simply bypass their Sunni colleagues and pass the draft constitution on to the Iraqi people in an Oct. 15 referendum.

This leaves three possibilities:

1) The Iraqi people approve the constitution—and the Sunnis step up their insurgency.

2) The Iraqi people reject the constitution (which happens if a majority of voters, or two-thirds of voters in three of Iraq's 18 provinces, cast ballots against it), forcing the government to dissolve—and the Sunnis step up their insurgency.

Or

3) Somehow, in the next few hours or days, the Shiite and Kurdish delegates offer the Sunnis enough concessions to sign on—and the resulting consensus forms the basis, maybe, for a legitimate political settlement.

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Is there any way to get to 3)?

As of Friday morning, the Sunni delegates continue to say they oppose any constitution that defines Iraq as a federation—that is, as a country with powers divided between a central government and regional administrations. If they really mean this, there will be no accommodation; there might as well never have been any talks. The northern Kurds insist on retaining some autonomy; the southern Shiites are getting to like the idea of running their own territory, too.

On the other hand, if the Sunni stance is merely a negotiating position, if there's some way to buy off the Sunnis, what might the Shiites and the Kurds offer as compensation?

The essence of the problem is this: The northern Kurdish provinces and the southern Shiite provinces have lots of oil; the central Sunni provinces don't. The draft constitution allows two or more provinces to form a region—and two or more regions to form a larger region. The Sunnis rightly fear that the Kurds and Shiites will create their own super-regions, which will dominate Iraqi politics and economics.

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One section of the constitution addresses the resulting inequities by declaring that revenue from oil and gas extraction will be fairly distributed throughout the country, according to need. However, this section—Article 110—refers only to revenue from "current" oil and gas fields, not from the vast untapped wells. Article 110 also notes that, for some period of time, an extra percentage of the money—conforming to a "quota" set by law—should go to "regions that were deprived in an unfair way by the former regime." Those regions, of course, were the ones with Shiite and Kurdish majorities, which Saddam Hussein treated terribly. In short, the Sunnis see the constitution as a gang-up.

If the Sunnis can be bought off, one way might be to revise Section 110 in a way that ensures equitable distribution of all oil and gas revenue—from current and future fields—and to drop the bonus quota for the Shiite and Kurdish regions.

It may be that the Sunnis can't be bought off. Many of them reportedly believe that Sunnis make up the majority of Iraq's population. (Though no official census has been taken for a quarter-century, the common estimate is that Sunnis account for about 20 percent, the same as the Kurds, while Shiites comprise about 60 percent.) Sunnis have been accustomed to running Iraq for so long—they've been accustomed, for that matter, to running nearly all the Arab countries—that they cannot conceive of living under the rule of Shiites, whom they have always held in contempt. In other words, many Sunnis may be insisting on a strictly central Iraqi government not just to keep Shiites and Kurds from controlling the country's resources, but also to ensure what they see as the resumption of "majority" Sunni rule.

In this distorted view, a federated Iraq is a plot to deprive Sunnis of their rightful power. If most of the National Assembly's Sunnis share this vision, there may be no hope for a compromise—and, for a long while to come, no hope for political order.

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The other remaining constitutional issues are secondary to the dispute over federalism, but one of them is particularly potent—the role of Islamic law. Much has been made of Article 2, which declares Islam "a basic source of legislation" (or, in one translation, "a fundamental source of legislation"). Iraq's transitional administrative law—which was drawn up in March 2004 by the U.S.-led Coalition Provisional Authority and remains in effect, pending passage of a constitution—refers to Islam as merely "a source of legislation." Some clerics wanted to change this to "the source." Is "a fundamental" closer to "a" or "the"?

The question is moot when one looks at some sections of the constitution that did not appear in the widely published excerpts that AP translated earlier in the week—and that I used earlier this week as the basis for a Slate column analyzing the constitution. (For a discussion of how these newly revealed sections modify some of my earlier observations and reinforce others, click here.) Particularly pertinent are Articles 90 and 91, which deal with the Supreme Federal Court.

The Supreme Federal Court will consist of "a number of judges and experts in Sharia (Islamic law) and law." It will interpret the text of the constitution; it will "rule in disputes between the central government and regional or provincial administrations"; and it will rule on the constitutionality of all federal laws before they are issued. Moreover, the court's rulings "are binding for all authorities." In short, this seems like a recipe for rule by clerics.

Articles 90 and 91 are disturbing many secular Shiites and Kurds, as well as women's-rights activists, one of whom announced this week that she would have no choice but to emigrate if this constitution took hold. Most of the Kurdish delegates seem to have accepted them in exchange for the provisions on regional autonomy; perhaps they reasoned that, when the time comes, they can elude the enforcement of sharia in the areas they control.

From a Sunni point of view, this pre-eminence of Islamic law may not be so bad—depending on what kind of Islamic law it is. The articles are vague on how the Federal Supreme Court's judges are chosen. Perhaps a formula can be devised for an equal share of Shiite and Sunni judges, along with some number of secular judges. (Article 90 does contain the basis for some secular presence; it says judges are to consist of "experts in Sharia andlaw," the latter of which presumably means civil law; there is speculation that the Shiites and Kurds have already cut a deal on this issue.)

Again, if the Sunnis don't want federalism in any form, there is nothing to negotiate; continued strife is unavoidable; civil war looms as a growing possibility. But if they are willing to bargain, now's the time for all sides to put their chips on the table and cash them in. We'll know what kind of game they're playing soon enough.