A Constitution in the Making?

 

The Current Crisis in Iraq

21 December   |   2005   |   Subject  Middle East & North Africa (MENA)

The elections in Iraq are over! After a trying period of expectation, the Iraqi people voted for a new four-year 275-seat Parliament. Compared with previous Iraqi elections, let alone other recent elections in the Arab Middle East, the vote was in one sense encouraging as an estimated 11 million registered voters took part. Officials predicted that this would put the overall turnout at more than 70%, and foreign monitors claimed that the elections met international standards despite some markedly partisan irregularities. The final results will be made official in the next couple of weeks.

But hype and excitement aside, it is my belief that those elections are, for better or worse, going to maintain the current status quo. The likelihood remains that they will show Iraqis to have voted again in large numbers along sectarian lines, with no real vision toward a truly united country. The results might also temporarily draw attention away from the monumental, irreconcilable rift that has developed between Iraqi Arabs and Kurds.

Meanwhile, the Kurds are taking steps to consolidate their future independence. In fact, control over Kurdistan's natural resources has been a demand of the Kurds since the overthrow of Saddam Hussein's regime. Perhaps naturally, Iraq's Arab majority has reacted unenthusiastically. During the writing of the Constitution, Sunni Arabs argued vigorously that all Iraqis should share the resources of the country, claiming that ethnic control would lead to an unravelling of the country. But this was considered by some parties as a rather particularly convenient argument considering the lack of natural resources in Sunni areas, and Kurdish voracity in regaining control of Kirkuk shortly after Baghdad's fall. The exact power structure for resource control remains undecided, particularly with respect to newly discovered oil wells.

So is the reverberating optimism shown by the US President and his Administration misguided?

In my opinion, the problems associated with Iraq have not been sorted out, and the profound tensions and contradictions that have been enshrined in the Constitution of the new Iraq could threaten the very existence of the new 'state' in the making. Indeed, many signs suggest that this Constitution is an open invitation for a break-up of Iraq and for years of internecine and often bloody wars. If not radically amended after the elections, this brand new but flawed Constitution would further weaken the already failing central Iraqi state. In spite of all the rhetoric in the document about the unity of the "homeland of the apostles and prophets" and the "values and ideals of the heavenly messages and findings of science" that have played a role in "preserving for Iraq its free union", it is disunity, diminished sovereignty and years of future discord that lie in store for Iraq if there is no overhaul of the Constitution. The Constitutional Committee that is meant to review this document must ensure, amongst other issues, a much stronger central government and fair access to, and distribution of, revenues from natural resources. As Mark Lattimer, Director of Minority Rights Group International (MRG), opined recently, "What Iraq's people should be looking forward to today is the start of a new era of democratic government. What they will get is government by sect."

So as things stand today, any government that emerges from those elections will be flawed in three ways:

• The Constitution establishes a supremely powerful Parliament, which can ride roughshod over the Executive. While that Parliament, as it is designed in the Constitution, looks like a democratic institution, it does not work like one. Rather, it is an artificially constructed collection of ethnic and sectarian voting blocs. If the experience of the interim government is any guide, the few people who control those blocs are the ones who will wield real power, and they will do so largely through handpicked committees and backroom wheeling and dealing. Because those powerbrokers also choose the president and the prime minister, and can dismiss them with a simple majority, there will be no check on the tyranny of majorities operating under the aegis of the Legislature.
• Executive power is divided between the president and the council of ministers, guaranteeing that major decisions will be met with the same tension and paralysis that have plagued the present government. Both the president and the prime minister (which, one assumes, will be apportioned to a Kurd and a Shiite Arab) can separately present bills to Parliament - a sure recipe for conflict. And both the president and prime minister can be fired after a no-confidence motion endorsed by a parliamentary majority. At a time of pervasive violence, no one person or institution can therefore be said to be in charge of the executive branch of the federal government.
• The Constitution encourages the transformation of governorates and local administrations into powerful, near-sovereign regions that, with the exception of Kurdistan, have no underlying basis for unity. And while the articles dealing with the functioning of the federal government are poorly worded and intended to dissipate executive power, the 10 articles of Section 5, on the powers and manner of formation of new regions, are a model of clarity that have been drafted with the sole purpose of encouraging new regions to be created at the expense of the federal union.

There is nothing wrong with having strong regions within a federal union. Unfortunately, the two-month Iraqi Constitution fails to inject the glue of a federal government that would hold such a union together. It sets up a regional system with big short-term winners (Shiite Arabs and Kurds) and big short-term losers (Sunni Arabs). It even allocates extra oil and gas revenues to the regions that generate them, on the implicit assumption that the state owes the Sunnis of the resource-poor western provinces less than it does the Shiites and Kurds because of the political inequities of the past. But these provinces are not significantly better off than other parts of Iraq.

A decentralised, federal state system that devolves power to the regions is not the same as a dysfunctional one in which power at the federal level has been eviscerated to a large extent. The former preserves power while distributing it, whereas the latter destroys it. At the moment, the Constitution renders the Iraqis state even worse.

What began as an American problem (some would say mess) with the occupation has today become much more of an Iraqi problem (or mess). To steer the country away from anarchy, and in order to manage the furies that have been unleashed to date, the recent elections must be viewed as a significant starting point, but only if they spawn a fully sovereign, independent and credible Iraqi government that can move quickly on improving security and bringing normalcy back into the lives of most citizens. In order to reverse the national fragmentation of Iraq, the following measures need to be undertaken by the new Iraqi Parliament as soon as it reconvenes after the elections:

• Recognise that only Kurdistan fulfils at the moment the conditions for being a region. Using the Kurdish experience as a model, the Constitution must define the minimum conditions that need to be met by any group of provinces that desire to form themselves into a region. It should then set a moratorium of ten years on the establishment of new regions, this being the time necessary to defeat the insurgency, establish properly accountable institutions of law and order and ensure that those applying for such status have met the criteria.
• Limit the size of any new region formed after the 10-year period to a maximum of three governorates and fix the existing unmodified boundaries of the 18 governorates of Iraq as the basis for the establishment of new regions.
• Delete Article 109, which allocates extra oil revenues to the regions that generate them. There is no defensible case whatsoever for imposing special reparations on the Sunni populace for the crimes of former Iraqi leaders.
• Appoint a committee of constitutional lawyers and experts to introduce the necessary amendments that would reconcile the legislature with the executive, as well as the different parts of the executive with each other. This is not a matter that can be resolved by the politicians alone, nor should it be left to them alone.
• Initiate a process of gradual withdrawal of US troops from Iraq since such presence is viewed as an occupation force and almost single-handedly exacerbates Iraqi incandescent problems today. As the syndicated columnist Rami Khouri writes, "the fastest way to move towards that goal would be for the United States to announce that it is starting its military withdrawal from Iraq and does not intend to maintain long-term bases there."

An Iraqi web-blogger, 'Riverbend', wrote about his experiences during the recent parliamentary elections. Entitled Elections, Yes; Democracy, No , this former computer programmer located in Baghdad blogged on 18 December 2005:

Will the new government be stronger or more reliable than the several interim governments we've had? Not likely. A government won't be respected unless the people perceive it as sovereign, and occupation in itself goes against every suggestion of sovereignty and democracy. How does one put faith in a government that needs the use of foreign armies to keep it in power?

In my opinion, elections in Iraq cannot be democratic under a foreign occupation - especially when the election lists were composed largely of the same people who supported the invasion and occupation of Iraq. We are recycling the same names, faces and ideologies of sectarian and ethnic divide.

It seems to me rather self-evident that democracy is not reducible to placing an Iraqi seal of approval upon a situation that is manifestly worsening by the day. Rather, for true democracy to emerge out of the current chaos in Iraq, the state must be saved from the irresponsibility of the Iraqi parties and the voting blocs that are today corroding its future fabric. If this trend continues, and with the inevitable vacuums it might duly create in the process, the dream of a democratic and reborn Iraq would turn into a dystopia of warring militias and rampant hopelessness.

Is this a risk that Iraq is willing to take? Equally crucially, is it a risk the world could live with?

© Dr Harry Hagopian   |   2005   |   21 December