Against the Draft Constitution

Only a tight consociation can guarantee the unity and survival of Iraq.

1. There is no question about the draft constitution meeting every requirement of loose federalism and three-state solution for Iraq: Provisions on decentralism and con-federalism ensure not only the supremacy of regional law over federal law but stripes the Iraqi Supreme Court (i.e., the conventional federal "rule of judges") of juridiction over regional laws and Kurdistan’s laws in particular; provisions on distribution of natural resources ensure regional control of oil resources; and provisions on army ensure the acceptance of militias as the official military force of the region - we may skip here the controversies over whether the draft constitution opens the door for partition or it only ratifies a break-up that has already happened; also, whether it destabilizes the geopolitical balance in the region, or is instead the "peace treaty" of the de facto independent states of former Iraq.

2. Federation, be it loose as in the present case or tight as some would like it, doesn’t solve the complex distribution of territory, economic resources, and population in Iraq. (See population map.) The federation’s shortcomings are acknowledged by the very champion of the draft constitution Peter Galbraith, since he in fact suggests a consociational solution int the case of the Kirkuk province. And especially as he implies such a solution for Baghdad and the whole Sunni Arab region – not to mention the more than one million Sunni Arabs in the south and center who would fall under Shi’i domination.

The current demands coming from the Sunni Arabs to amend the draft constitution before the Oct. 15 referendum (here), namely the demands to expand the powers of the federal government and decrease powers of the regional governments, are therefore useless. They are as useless as the propositions, usually made by intellectuals such as K. Makiya and the Dawishas, to conceive of the federated units in purely geographical terms or to dramatically increase their number – compare the proposed 18 states for 26 million Iraqis with the actual 16 länder for 82 million Germans and 50 states for 297 million Americans.

Many agree that the only way for Iraq to avoid catastrophe is a political accord among Shi’is, Kurds and Sunni Arabs; that is, a national compromise based on the preservation of Iraq as a unified state in which resources and political power are fairly shared and citizen rights protected. However, what the Iraqi state needs is not some "genuine" or tighter type of federalism; Iraq could be politically consociational and yet territorially a unitary state. I am not the only one to think so; it is indeed hard to see how a centralized Iraq run by Shi’is could serve the interests of its Sunni population. In particular, I think only the general consociational features of the draft constitution, rather than its specifically federalist ones, may well be a better guardian of the rights of the Sunni Arab minority than a unitary state in which majority rule would probably leave them routinely short of the voting strength necessary to have an effective say in their own governance.

3. Also, while tight consociation is obviously the best solution for Iraq, it should be noted that the loose federalism of the draft document actually builds on a few loose-consociational presuppositions. For example, the provisions on autonomous taxes and legal systems for Kurdistan and provinces grouped into regions for Shi’is and Sunnis are drawing on models of communal, ethnic and confessional, self-government. The draft thus says the Kurdish north may opt for modern secular law, the Shi’i south for Islamic Shari’a law, and any individual may choose as he or she sees fit. As P. Galbraith (below) puts it, "each Iraqi, for example, can decide whether he or she wants disputes over personal issues such as divorce or inheritance settled according to his or her sect's religious law or according to the secular civil code." In other words, what has already been named "the most decentralist constitution on earth" is probably the most multiculturalist constitution on earth too.



Last Chance for Iraq
By Peter W. Galbraith
October 6, 2005

The Kurds viewed the Iraqi constitution largely as if it were intended for a [Shi’i] foreign state. As a result, they were not prepared to block a deal because of concerns to protect secularism and gender equality for others as long as any objectionable provisions about either one did not apply to Kurdistan. … The Shiites were mostly willing to concede that the Kurds (and any other region) could legally opt out of many provisions of the constitution because they knew this to be the price of having the constitution endorse Islamic law.
[…]
Still, for all the attention that has been given to the constitutional provisions concerning women and Islam, the federal constitution is largely irrelevant to the actual treatment of women and the application of Islamic law. Regional constitutions and law will, according to the federal constitution, have primacy concerning these matters. This arrangement enables Kurdistan to preserve its secular status and to keep human rights protections in its constitution that are superior to those in the federal constitution. But this also means that the Shiite region (or regions) will apply a much stricter version of Islamic law, particularly in the federal constitution.

Similarly, the Western imported or US dictated federal mechanisms, to some degree, build on local consociational practice and Ottoman millet tradition (Iraq's pre-1958 monarchical constitution actually reserved a certain number of seats in parliament for Christians and Jews):



Drafting Iraq’s New Constitution
Principles and materials
Minority Rights Group International
May 2005

The demand for a central role for shari’a in the new Iraqi constitution has to date come primarily from certain Shi’a leaders. The population distribution by sect in Iraq is however very different from that of Iran. Although Sunni Arabs make up only about 20 per cent of the population, the great majority of Kurds are also Sunni Muslims. The Shi’a-Sunni split among Muslims as a whole is therefore approximately 3-2. This would work against any specific school of shari’a assuming constitutional dominance (unless, perhaps, a system of radical regional autonomy was agreed).

Many other communities in Iraq will also be concerned to preserve their religious belief and practices. Here it is instructive to look again at the Ottoman millet system that was previously applied in Iraq. The system, based on the recognition of personal laws of each community and cultural and religious councils with autonomous powers over the community in these matters, was adopted by the League of Nations when Iraq was granted its independence in 1932 on the termination of the mandatory regime. At that time the Iraqi government agreed, among other minority provisions, that non-Muslim minorities would be allowed, ‘in so far as concerns their family law and personal status, measures permitting the settlement of these questions in accordance with the customs and usages of the communities to which those minorities belong’ (art. 6 of the Declaration made by Iraq on 30 May 1932). In addition they would have the right to establish and fund religious, educational and charitable organizations, and to provide education in their own languages. These provisions had in fact been already included in the 1925 constitution.

4. The Iraqi draft constitution creates no conditions whatsoever of tight consociationalism. To create such conditions, it need from the outset take an uncompromising stand (excluding all forms of federalism) on the country’s territorial unity and the indivisibility of its sovereignty, security, and natural resources. Once it has, it need be steadfast in initiating a common Iraqi standard of political rights and duties - not to be confused with abstract universal human rights.

Indeed, the draft constitution fails to adequately protect internal communal critics and members dissenting from confessional conformity. In particular, the provisions on the rights of women need not be confusing or unworkable; that is, they need not be so if matched with stipulations instituting consociational courts. Consociational law (not "civil code") should be standing above all sorts of communal laws - ethnic or confessional, religious or secular - equally. It should intervene whenever parties to conflict assert their rights with reference to different laws respectively. On the other hand, pleadings must aim at some standard of integrity, as each conflict partner cannot make use of more than one communal law at the same time. Procedures such as in international private and public laws could be then resorted to – when necessary, pre-Islamic cultural practices could be invoked too.

In the same way, the draft constitution fails to adequately promote active Iraqi citizenship; it fails in upbringing patriotic citizens critical to communal (e.g., Shi'i) insularism and nationalist (e.g., Kurdish) separatism as well as to foreign meddling and international moral paternalism. (Compare Amnesty International’s Call for a human rights based constitution with the organization’s silence on Iraqis’ self-determination right, Open Letter to Amnesty International on the Iraqi Constitution.) More particularly, provisions on "de-Ba’thification" and "war on terrorism" are nowhere matched with any provisions on legitimate resistance or foreign troops withdrawal. (See Docena and Riverbend below.)



How the US got its neoliberal way in Iraq
By Herbert Docena
Sep 1, 2005

…The media have tended to focus on the cultural and sectarian provisions of the constitution, ignored the significant insertion of economic provisions, and altogether missed the link between the two. What most likely happened was this: the US tolerated the adoption of religious provisions in the constitution and agreed to the establishment of a federal system in Iraq, as demanded by the Shi'ite and Kurdish parties, in exchange for the introduction of neo-liberal economic provisions in the constitution.
[…]
One other thing worth mentioning is that Iraq’s will probably be the only constitution in the world that enshrines "fighting terrorism" as one of the state’s objectives. Given how "terrorism" in Iraqi discourse has been used by pro-occupation Iraqis and US officials to refer to the resistance movement, the clause could be invoked to legally justify continuing military offensives against political forces that refuse to come to terms with the occupation and the political process it has bred. As has happened in other countries, the "war against terror" could also conceivably be used to justify continuing US military presence in Iraq.

Riverbend, Baghdad Burning
September 17, 2005

The most interesting article in Chapter 1, however, was in the first draft of the constitution published on August 22 by some newspapers but it isn’t in the final draft (at least it’s not in the New York Times English version). It is numbered Article (16), in the version of the draft constitution it appeared in:

Article (16):
1. It is forbidden for Iraq to be used as a base or corridor for foreign troops.
2. It is forbidden to have foreign military bases in Iraq.
3. The National Assembly can, when necessary, and with a majority of two thirds of its members, allow what is mentioned in 1 and 2 of this article.

This one is amusing because in the first two parts of the article, foreign troops are forbidden and then in the third, they’re kind of allowed… well sometimes- when the puppets deem it necessary (to keep them in power). What is worrisome about this article, on seeing the final version of the draft constitution, is its mysterious disappearance- in spite of the fact that it leaves a lot of leeway for American bases in Iraq. Now, in the final version of the constitution, there is nothing about not having foreign troops in the country or foreign bases, at the very least. The "now you see it"/ "now you don’t" magical effect of this article, especially, reinforces the feeling that this constitution is an "occupation constitution."