Iraq: a constitution to nowhere

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A Baghdad radio commentator recently asked an Iraqi caller whether he intended to vote in the 15 October referendum on the draft constitution for the country. The caller answered: “if I do, will I get some electricity?”

In its way, the small exchange speaks louder than all the fine words from Iraqi politicians that have surrounded the document. After all the Iraqi people have been through – the years of war, of suffocating economic sanctions, and the trials of occupation and terrorism – will the constitution bring peace, prosperity and basic services, or a further disintegration of the state coupled with more pain and misery?

What is fairly certain is that Iraqi society on the eve of the vote remains deeply polarised, with the Sunni being almost entirely opposed to the constitution, while the Kurds and the Shi’a are largely in favour. Amid widespread pessimism and disagreement, the best way to clarify what the constitution might mean for Iraq and its people as a whole is to look at the document itself.

The most important element of the text is its proposal of a new federal structure for Iraq, combining a federal system of government with a particular method of allocating power to the different levels of authority across the country. Many of the world’s constitutional lawyers see the anomalies in the proposed system as likely to lead to the dissolution of the Iraqi state. This article examines the federal proposal, and asks why this particular option came to be presented to the Iraqi people.

Also in openDemocracy on Iraq’s constitution:

▪ Sami Zubaida, “Iraq’s constitution on the edge” (August 2005)

▪ Zaid Al-Ali, “Iraq: a constitution or an epitaph?” (August 2005)

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The federal structure

In Iraq’s proposed new federal structure there are four different levels of government: the central government in Baghdad, the regions, the provinces and the local administrations. The constitution provides that the regions enjoy a great amount of power under this structure, often at the expense of the central government in Baghdad. At present only the Kurdistan region is established, but the constitution sets up a mechanism that allows for the creation of more. Indeed, article 115 of the constitution provides that:

“One or more governorates shall have the right to organize into a region based on a request to be voted on in a referendum […]”.

During its negotiations, the Iraqi constitutional committee were particularly interested in Spain’s 1978 constitution, drawn up after the death of the dictator Francisco Franco in 1975, which allows each of Spain’s provinces a great deal of latitude in deciding how much autonomy they wish to enjoy. Leaving aside the perennial problems in the Spanish model – reflected in current controversies over Catalonia, the Basque country, and even Valencia – there is a major difference between the Spanish and the Iraqi models.

The drafters of the Spanish constitution were at the time concerned that popular movements in different parts of the country would seek to join different regions together and form larger administrative units within Spain. For example, they viewed the suggestion of some Catalan politicians of a fusion between Catalonia and Valencia as a threat to the unity of the Spanish nation. As a result, a clause was included in the Spanish constitution to prevent this. Article 145 reads:

“Under no circumstances shall a federation of Self-governing Communities be allowed.”

An important distinction can be drawn between the ambit of article 145 of the Spanish constitution and article 115 of the Iraqi constitution: article 145 applies to autonomous regions joining together and forming a confederacy of regions, whereas article 115 applies to provinces joining together and forming a region. What is striking, however, is that the rationale behind Spain’s article 145 was highly appropriate to Iraq and could easily have been applied. In fact, the reverse was provided for: instead of blocking the creation of large and powerful administrative regions in the country that could confront central government or even each other, the constitution actually encourages it. This is particularly worrying considering that separatism is already a much more powerful trend in Iraq than in Spain.

Article 115 is not unique in comparative constitutional law; for example, the constitution of the federal republic of Germany also allows for different states to merge and to form a single state. However, the dynamics in Germany and in Iraq are not the same, for two reasons. First, there is no real fear of separation in Germany, or of different states joining together in order to confront central government (some German states are so small that the federal government might even be happy to see them merge with larger states into more economical units); second, no two German states have actually joined together since 1945.

In Iraq, by contrast, it is expected that the governorates will begin the process of grouping together immediately after the parliamentary elections scheduled for December 2005. The result will most probably be that Iraq will eventually come to resemble Belgium, whose federal structure of government contains three states: Flanders (Flemish-speaking), Wallonia (French-speaking), and Brussels itself. Iraq is likely to follow suit, with a Kurdish region in the north, a Shi’a-dominated south and a Sunni region in the centre.

Belgium is one of the more prosperous and peaceful countries in the world, but it has another relevant quality: it is part of a structure – the European Union – whose influence is for the consolidation and integration of the country as a single, thriving entity. Iraq is part of a region – the middle east – which is pulling it apart. In this light, a more fitting analogy for the possible future of Iraq is the former Yugoslavia, or the first Nigerian republic in the 1950s – both of which broke apart in civil war.

Distribution of powers

Almost every federal constitution in the world establishes a list of powers that are to be exclusively exercised by the central government, another list that is to be exercised exclusively by the states and yet another that provides for areas of joint authority between the central government and the states.

Iraq also uses this model, but with a twist: the dominant trend during the negotiations was to attribute as few powers as possible to the federal government, rendering it almost toothless in relation to the regional governments. The result of this precarious approach is that many elements that under any logical standard should have been included amongst the powers of central government have been assigned to regional government instead.

Article 107 of the new constitution sets out an exhaustive list of powers that are to be exercised exclusively by the central government. It includes issues such as: foreign policy and diplomatic representation; foreign sovereign economic and trade policy; fiscal and customs policy, and commercial policy across regional and governorate boundaries in Iraq.

Article 110 then sets out the areas in which the central government will share responsibility with the regional governments, which includes areas such as: customs; public health policy; and public educational policy. In addition, article 109 specifically provides that the management of oil and gas extracted from “current” fields is to be managed by the central and regional governments together.

Finally, article 111 provides that:

“[a]ll powers not stipulated in the exclusive authorities of the federal government shall be the powers of the regions and governorates that are not organized in a region.”

Thus, as a result of the fact that article 107 and article 110 are exclusive lists of powers, and that article 111 provides that everything else is to be exercised solely by the regions and by the governorates, issues such as aviation regulation, which is not mentioned in either article 107 or article 110, are to be regulated locally rather than centrally.

So, if a European airline wishes to obtain permission in order to fly over Iraq, it will have to contact each of the regions and each of the governorates. Moreover, the federal government has no power to levy taxes, and almost certainly will be incompetent in relation to matters relating to criminal law. In addition, article 107 (3) states that the federal government has exclusive jurisdiction to regulate “commercial policy across regional and governorate boundaries in Iraq”, which probably means that it will be unable to establish a federal commercial code.

These examples – and there are many others – raise issues that seem bound to cause constitutional difficulties in coming years. A pragmatic solution is likely in some circumstances, but the consequence of this approach in turn will be to establish an atmosphere in which the text of the constitution will be taken to be more akin to advice rather than the highest law of the land.

Defenceless in Iraq

It is always easier to see things in black and white and many analysts have blamed the dangers inherent in this constitution on the United States-led military occupation of Iraq. In fact, the picture is more complicated: a series of unfortunate circumstances conspired to create the new constitutional reality.

The most important factor is that no one was present at the constitutional negotiations who was willing or able to defend the notion of a unitary Iraqi state with a strong centre, or even of a state where allegiance to the idea of Iraq took priority. As a result, the talks were dominated by sectarian elements who ate away at the core in order to strengthen themselves.

Behind this lay the fact that all those parties who had boycotted the January 2005 elections were sidelined during the subsequent drafting of the constitution. True, the occupation authorities insisted that Sunni representatives were included in the constitutional committee, but their influence on the negotiations was limited, for two reasons. First, they refused to engage in any discussion about federalism, as they did not want to acknowledge the possibility that Iraq may become a federal republic; second, after the 15 August 2005 deadline had passed for completion of the negotiations, and the draft gone to the leadership council for final discussion, the Sunni were excluded outright.

Meanwhile, it was evident that the followers of Muqtada al-Sadr, Sheikh Jawad al-Khalisi and all the other nationalist elements in the country were not interested in taking part. But more significant is that the Iraqiya party led by former prime minister Iyad Allawi – a political movement expected by many to defend the notion of a strong core against the sectarian elements – stood on the sidelines.

The main reason for this seems to be that Allawi is so determined to return to government in the December elections that he has difficulty concentrating on anything else. He has devoted so much time to creating alliances and seeking regional support for his election campaign that formulating a policy in relation to the draft constitution seemed to be a lesser priority.

Running out of time

Many have argued that the Iraqi constitutional committee did not have enough time to draft its constitution; others recalled that many states involved in such a process in recent decades – including Spain, South Africa and Germany – took years to complete the negotiations and drafting stage. Even the United States, after all, needed seven years to complete their negotiations. The Iraqis, by contrast, were obliged by the timetable established for them to complete all the work required in a matter of weeks.

The problems of such a tight schedule can be illustrated by outlining a natural, step-by-step timeframe for constitutional negotiations as it applies to the detail of any proposal – bearing in mind the fact that the vast majority of Iraqi participants in the drafting process were far from being scholars in law or in political science:

  • the drafters learn of an unfamiliar and promising constitutional concept that they had not heard of before
  • the new concept is welcomed and considered carefully, leading to a first draft reflecting the discussion
  • the draft is circulated, and the various drafters take time to reflect on it and discuss it with their constituents and/or members of their political parties
  • the different drafters begin to realise how the detail of the draft could affect the structure of government or the relationship between the state and the individual
  • these concerns are articulated to the other drafters, and all differences are laid down on the table in order to open the door for discussion
  • the real negotiations begin
  • all the differences are eventually ironed out, and a compromise is reached between all the relevant parties.

The short timeframe in the Iraqi constitutional process, and perhaps the lack of expertise of many of the drafters, meant that the negotiations were often cut off at the fourth stage above – the exact point when drafters began realising how important particular concepts could be. Because time ran out, it was often impossible to follow through to the next stages and reach a compromise.

The best illustration of this is the chapter relating to the constitutional court. A constitutional court is typically designed to adjudicate whether or not particular laws of parliament are consistent with the constitution. When the Iraqis first heard of it, all were in favour.

Zaid Al-Ali has degrees from King's College London, the Sorbonne University in Paris and Harvard Law School. He is the editor of Iraqi Economy

Among Zaid Al-Ali’s articles on openDemocracy:

▪ “Iraq – the lost generation” (November 2004)

▪ “Iraq’s dangerous elections” (December 2004)

▪ “The end of secularism in Iraq” (May 2005)

After the first draft was produced, the topic was ignored for a few weeks, after which the various parties to the negotiations became aware that the draft contained details that would give the constitutional court a deeply religious overtone. In addition, the draft chapter stated that the constitutional court would be accountable to parliament. This was illogical in view of the fact that constitutional courts are supposed to be counterweights to parliament, but made sense in light of the fact that parliament was likely to be dominated by the religious Shi’a parties for some time to come.

The drafters then began arguing over the details and the draft chapter started to shrivel. By 15 August, nothing had been agreed upon – so the whole chapter was dropped altogether. As a result, Iraq has no constitutional court whatsoever, and the task of reviewing the constitutionality of laws was granted to the federal supreme court.

Meanwhile, as all these issues were being discussed behind closed doors in the American protected “green zone” within Baghdad, Iraq continued to be a nightmare for millions of its citizens. Most Baghdadis received around two hours of electricity a day during the summer – and people in many other areas considered them lucky. In such circumstances, most Iraqis were like the caller on Baghdad radio who cared only if the constitution would bring better daily services. Through all the rhetoric and propaganda, through all the references to Mesopotamia, Babylon and Hammurabi, Iraqis still wonder: where are the riches that we were promised?