Arato Guest Editorial Constitution And

Arato Guest Editorial: The Constitution and a Pot of Porridge

Andrew Arato of the New School writes:

‘ We can now assume that in Saturday’s referendum the 2/3 negative votes will not be attained in a third, Sunni majority province, and that the Constitutional Proposal submitted to the Iraqi people has passed. It is now going to be Iraq’s Constitution, with international recognition. But what has passed, and what does it mean?

There is great confusion in the English language, and I must assume in the Arabic press as well concerning the text added to already patched up document just three days before the referendum. In a version released by the UN Office for Constitutional Support, and the NY Times Bureau, both in Baghdad, there are only relatively minor changes, that regarding the fundamental issue of “federalism” establish only “a committee from its members… representative of the main components of Iraqi society…to make recommendations in a periods not to exceed four months for necessary amendments that can be made to the Constitution”. Otherwise this addition leaves the existing complicated amendment rule in place, which in spite of numerous misreadings in the press banned all amendments for two parliamentary cycles only for fundamental righs, and for state principles that do not involve “federalism”.

As to rights of regions, while these could not be amended at all without a regions consent, this provision applies only to regions already formed, presently Kurdistan. In this version it would seem that the Iraqi Islamic Party sold its support for a pot of porridge, i.e. a mere committee, since the regulations concerning regions all remain in place, and require, as before the so-called compromise, a 2/3 parliamentary vote to change them, which a nationalist side led by the Sunnis or anyone else is not going to have against Kurdish and Shi’ite opposition under any conceivable electoral and coalition building scenarios.

There is however a second, according to my friend Nathan Brown, better authenticated version of the text, that was actually read in parliament, available at the Nigash website.

This text also involves the formation of the relevant committee, but suspends the operation of all sections of the normal amendment rule (previous art. 122, now art. 125) for the relevant period of four months after the election of the National Assembly. That body under this rule would approve a full package of amendments, as a whole, by absolute majority (i.e. of all members). When I first heard of this provision among the contradictory press reports, I foolishly thought that now the Kurds would have to vote against the draft, because everything could be renegotiated, and changed by a majority decision, including their rights, and the referendum spoken about under the new constitution would be simply a majoritarian one.

But the architects of the compromise thought of this problem: For whatever amendments would emerge from the four month process they have reinstated the ratification rule of the TAL used in the present referendum: simple majority in the country plus the three province veto. Still only a pot of porridge, then? Very possibly, because the veto that may have been given up on the level of parliament is still retained by both the Shi’ites and the Kurds on the level of provinces.

Yet, in my eternal optimism, I see a chance of something else happening. What was in effect done is to both vote for a constitution now in a highly accelerated way as the Americans and others insisted, and to get the additional six months for the process many thoughtful observers believed was necessary if there was to be a chance for a historic compromise among the three major groups as now defined, or among more and different ones if there is a political re-orientation and re-alignment. In effect the new committee will be, with better and electorally secured Sunni participation, the same type of committee that was supposed to draft the constitution in the TAL regulated process.

The product this time will have to be actually voted on, because they specify the voting rule, absolute majority. And the ratification rule of the TAL is going to be in effect. So we are in effect back to an improved version of the TAL process, with the possibility of a better form of Sunni representation now legitimated by elections. It was then not a pot of porridge after all?

Well, not so fast. With the TAL the fall back position was the TAL, which after all had some minority protections even if poorly designed, and was less likely to be given an Islamist interpretation. The TAL had a three province limit for the formation of regions. Most importantly, if a process of constitution making under the TAL failed, the TAL remained in effect. Now under similar procedural rules, if the process of amending the new constitution were to fail, Iraqis would be back with a new constitution that is strongly biased in favor of a regionalist break-up of the country with the possibility for example of mega regions, and the resolution of disputed constitutional questions concerning social status and formation of regions by simple majorities.

Thus, if either the Shi’ite or Kurdish partners, or both, did not act in good faith when making the concession to the Sunnis, then in fact they were engaging in nothing but an effort to get a few more Sunni votes in the referendum, and to split the Sunni parties.

We cannot know right now if there is a real chance still for some kind of historic compromise. For the moment, the parties of the government got their very poor constitution passed despite all the gaps and illegalities. The Sunni moderates however, and not only the Iraqi Islamic Party gained time. And that is not nothing. ‘

Andrew Arato