Guest Editorial Transitional Permanent

Guest Editorial: A Transitional Permanent Constitution?

Guest Editorial by
Andrew Arato,
New School University

With the ongoing marathon meetings of its political principals concerning the constitution, the round table of the leaders of major groups, Iraq has finally had its first genuine political negotiations of this sorry war and occupation period. How much blood and treasure could have been spared the country, as well as American families, if such negotiations were sponsored in the summer of 2003? It is not true that at that time Iraq was too torn by sectarian conflicts of identity to have such negotiations (Dexter Filkins “A Nation in Blood and Ink” NY Times August 14, 2005). The thing was never even tried. The U.S. leaders who could have initiated it were unfortunately too ignorant, self interested, and captured by their clients, and, a year later, in early 2004, the UN officials were too weak to push genuine, inclusive negotiations through despite understanding their importance. Now they happened, let us hope not much too late.

The pattern was classical: the compromise of moderates on all sides hoping to bring more radical forces on their own side along. This is so for the Kurds where President Talabani led, hoping to control Barzani, the Shi’a where the government had to neutralize the exaggerated claims of SCRIRI and of course the Sunni negotiators who have to deliver significant gains to their side, while splitting the armed insurrection. The job of the last being the hardest, they had to get the most important gains. And they did so, on the name of the country which will be neither federal as the Kurds wanted or Islamic as the Shi’a demanded.
But the make or break issue came down to what in Iraq they call “federalism”, but means rather the extension of Kurdistan’s special, more confederal status to the country as a whole. It is what American commentators like Peter Galbraith, speaking for the Kurds, have always argued for. It is a formula for the impoverishment of the Sunni heartland, for obvious reasons, and endless insurrection. Evidently, the U.S. has now turned against this type of scheme, in the face of the insurrection. But, the deal the Coalition Provisional Authority negotiated primarily with the Kurds, the Transitional Administrative Law, the interim constitution, already potentially contains it, in its Art. 53C: “Any group of no more than three governorates outside the Kurdistan region, with the exception of Baghdad and Kirkuk, shall have the right to form regions [i.e. mini-states within the state] from amongst themselves.” It is now tough to get rid of the idea, which the Kurds cling to to weaken the central state as an end in itself, and now the Supreme Council of the Islamic Revolution (SCIRI) has apparently embraced in a rather megalomaniac version (contrary to the TAL limit) of a nine province Shi’a region, with all the ports as well as an enormous portion of the oil.

Evidently the round table of principals had very great difficulty deciding this, with the Kurds for this so-called “federalism”, the Sunni delegates unalterably opposed, and the Shi’ites split between Da’wa and SCIRI, between the more nationalist line of the Jafaari government and the autonomist position of SCIRI now dominant in most of the Suthren provinces. Here too the only solution was to accept the proposal of the Sunni negotiators, more or less. Kurdistan can have its special position, but neither a structure extended to the rest of Iraq thereby hopelessly weakening the federal government, or vetoes on the policies of the rest of Iraq. The other provinces get their rights through a second chamber: i.e federalism as the rest of the world understands it, one based on provinces and not large regions. And what are the Sunnis asked to give in return? At the risk of their lives, they are to go back to their communities, organize them , fight for an amnesty for all those willing to lay down their arms, and help isolate the rest. In other words: the most important and most difficult thing of all.

The only thing that could have interferred with the acceptance of the alternative that moderate forces tended toward, a form of federalism tied to geographic provinces rather than to ethnic regions was a proposal strongly pushed by U.S. Ambassador Khalilzad. His presence in some of the actual negotiations was most unusual at any such round table forum, and it is said that he brought a detiled proposal , almost a constitution. It seems that Americans could remove their constitutional imposition in Iraq only in the form of another imposition. This had some positive results admittedly, and some very negative ones. Since, Khalilzad chose previously to reinforce moderate forces on all his sides, politically his intervention went in the direction that made a deal structurally possible. By insisting on human and gender rights, given America’s heavy responsibility to Iraqi women who were socially better off before its intervention, he may have contributed some to a more just model of rights in the constitution. But by the astonishing tempo of the negotiations he seemed to dictate, and the continued insistence that in spite of the very real formal possibility of amending the interim constitution, the TAL, the process could not be extended, he has greatly contributed to the legitimacy problem of a product that may in fact express the best possible compromise of the day. He made an authentic Iraqi product look like another imposed constitution.

With respect to “federalism” Khalilzad apparently proposed that this question not be decided now, that the constitution be somehow completed by the August 15 without this feature, and that the parliament elected in December of 2005 decide the question according to the new constitutions amendment rule (again apparently, since I don’t have his text). The NY Times in an otherwise sterling editorial called (and supported) this same idea (though not Khalilzad’s personal intervention, quite on the contrary!) making the constitution “transitional” as if one “transitional” constitution did not already exist in Iraq.

To their great credit, the Iraqi negotiators resisted Khalilzad on this signature proposal. Apparently, some Sunni members originally supported the notion, and may have first advanced it, with the consideration that in a new assembly elected with a new electoral rule that is not turnout dependent their provinces will be better represented. Others were more skeptical, and apparently convinced their colleagues. They were right. Sunnis will not have stronger representation in the next parliament than in the present negotiations, especially because here the decision rule is consensual. In the next parliament everything will depend on the amendment rule, that the NY Times blithely recommends they rely on in the future. Have they looked at it? In the drafts that I have seen the number is two thirds of parliament, plus a national majority in a referendum, two parliaments with an election in between in the case of important issues. Would the beneficiaries of the Kurdish 6, and Hakim’s 9 province oil rich regions lack the 2/3? The provinces in question have about 70% of the population, plus there are Kurdish and SCIRI voters in Bagdad to counter-balance nationalist voters in the South. But this amendment rule, in the context of a constitution again pronounced transitional would also provide no safety to the Kurds and their special rights, which could be, under some condtions be threatened by an easily available 2/3 Arab vote.

Juan Cole is right to point to the potentially disastrous consequences of a decisionless constitution (slavery in the U.S.) in the context of a very rigid amendment rule (U.S. article V.) The consequences of a decisionless constitution, and an easy amendment rule capable of steamrolling a minority like the Sunnis in one situation, and the Kurds in another could be equally bad. Both the impossibility of changing a constitution containing contradictory elements, and the easy option of supressing constitutional rights by amendments could lead to full scale civil war.
The round table negotiators in Baghdad decided to decide. Will their decision be legitimate? Will it hold? By putting a round table of the major political forces at the end rather than the beginning of the process, what follows will not appear particularly democratic. It will be easily denounced as an American imposition because of Mr. Khalilzad’s unthinking behavior. Because of the American rush, parliament will have no time to debate anything, and especially to amend anything. The same will be even more true for the pre-referendum public meetings held, that can be only informational and not influential. A complicated package negotiated by three sides, themselves divided on central issues cannot be easily re-opened for a while without the whole deal falling apart. In the referenda therefore there will be a great temptation to use the first chance of democratic participation to say No to a basically undemocratic, elite driven process., as it happened recently in France and the Netherlands. Since the Kurds did not get all they wanted, if Barzani is not loyal to the deal he may try to subvert it through the three province veto. And of course, the moderates may not be able to control their armed radicals on any of the three sides, and the deal, and the country will fall apart.

But today we should wish the participants well, because if their work holds up, Iraq will have a chance, and there will be no excuse to continue an occupation that would be the last major source fuelling the insurrection it tries to suppress in vain.

Andrew Arato