Iraq’s new constitution is an achievement, but one fraught with dangers
LUIZA CH. SAVAGEOctober312005
THE FINE PRINT
Iraq’s new constitution is an achievement, but one fraught with dangers
LUIZA CH. SAVAGE
“WE THE SONS of Mesopotamia, land of the prophets, resting place of the holy imams, the leaders of civilization and the creators of the alphabet, the cradle of arithmetic: on our land, the first law put in place by mankind was written...” So begins the constitution that the Iraqi people appeared to adopt last week, in a national referendum the Bush administration hails as a milestone for democracy—and critics fear has sown the seeds of civil war. It took America’s founders more than a decade after their independence to draft and
adopt their own constitution, and another 74 years for the country to fight a civil war over what it meant. The Iraqis had mere months to write theirs—in the midst of a bloody insurgency in which some lawmakers were gunned down for their efforts. With such an accelerated schedule, pessimists predict Iraq’s Gettysburg may come sooner rather than later.
Spanning 25 pages in its English translation, the Iraqi constitution is at first glance a standard-issue democratic document that aims to guarantee what those who overthrew Saddam Hussein wished for the country. Individual rights are protected, political power is divided, and the judiciary enjoys independence. “This is a very positive day for the Iraqis and, as well, for world peace,” declared George W. Bush after the balloting (the UN is investigating suspiciously high Yes votes in some areas). Examined more closely, though, the constitution is clearly the result of a divisive process in which Iraq’s Kurdish, Shia and Sunni factions each pressed its own interests, and which resulted in a document that devolves so much power to the regions that some doubt Iraq can remain unified. “We looked for the constitution to be a national compact,” the commander of the coalition forces, U.S.
Gen. George Casey, told a Senate committee late last month.
“And the perception now is that it’s not— particularly among the Sunni.”
Canadians, of course, know that the creation of a federal constitution can be a messy and erratic process of brinksmanship and backroom deals—one that can have profound ramifications on national unity. And in Iraq’s case, one provision in particular could contribute to a fracturing of the country along ethnic and sectarian lines. Overwhelmingly opposed by the minority Sunni Arabs, who make up 20 per cent of Iraq’s 23million-strong population, it allows the 18 provinces to combine into powerful selfgoverning regions—reflecting the ambitions of autonomy-seeking Kurds in Iraq’s north and the majority Shia population in the south. But those areas are the main oil producing regions, while the Sunnis, who ruled Iraq for generations, are concentrated in the oil-poor middle of the country. And there’s the rub: the constitution is vague on who will control future oil development: Baghdad—or the regions?
Moreover, the constitution assigns to the regions any authority not clearly granted
power so quickly is a recipe for even greater chaos,’ says Rend Rahim, a former Iraqi envoy
to Baghdad, leaving only defence and foreign affairs as explicitly federal issues, while education, health, infrastructure and even customs are to be shared. In cases of conflict, regional laws are to prevail. And regions could turn their local militias into regional security forces. “In Canadian terms, it would be as if the western provinces could band together and form a region that took responsibility for all internal affairs, and left Ottawa to deal with foreign affairs, defence, and issuing currency,” explains Nathan Brown, a specialist in Middle Eastern constitutions at the Carnegie Endowment for International Peace. “That might not lead to civil war in Canada, but in Iraq some people may want to stop it by force.” A civil war is not inevitable, adds Brown, “but the constitution doesn’t do much to prevent it.”
An escalation of armed conflict is a worry for Rend Rahim, who until October 2004
served as Iraq’s envoy to Washington. “To devolve power so quickly and so drastically away from an already weak central government, to regions that have no capacity except what is provided by militias, in my view is a recipe for even greater chaos than we now have in Iraq,” she told a recent conference at the American Enterprise Institute, a conservative Washington think tank that backed the Iraq war. The outcome is a reaction against years of tyranny from Baghdad, Rahim acknowledged, but “is not written with a view of constructing a viable state or a viable country in the future.”
Supporters of the constitution argue that a loose form of federalism may be inevitable. “A pluralistic, regional system is not necessarily antagonistic to unity,” says James
Jeffrey, a senior adviser to Secretary of State Condoleezza Rice and the State Department’s coordinator for Iraq. “But rather, it may be the only way, absent the kind of industrial-strength oppression we saw under Saddam, to hold a country together.” Asked whether the vote will speed up U.S. troop withdrawal from Iraq, Jeffrey said “no,” but added that “the political process is very important for defeating the insurgency”—expressing the hope that security would improve as indigenous insurgents would be drawn into politics, and foreign terrorists isolated.
There are former optimists, though, who do not share such high hopes. Kanan Makiya, one of Iraq’s best known dissidents, is the founder of the Iraq Memory Foundation, intended to preserve for all time the evidence of Saddam’s atrocities. In more promising times, he visited the Oval Office on the day U.S. troops pulled down Saddam’s statue in
April 2003, and previously told the President the Americans would be greeted with “sweets and flowers.” More recently, though, at the American Enterprise Institute conference he lamented, “We did not know how powerful was the rhetoric of sectarian and ethnic self-interest.” The constitution so weakens the central government, he said, that it may have the effect of “perhaps even dealing a death blow to the idea of Iraq that had sustained the opposition for so many years.” The concerns don’t end with federalism. The document is rich in enumerated rights—from property and work to a fair trial, health insurance, and freedoms of religion, the press and political association. But some rights are limited by the need to protect “morals” or the “public order”—language used to curtail freedom elsewhere in the Arab world, cautions Brown. Women are also guaranteed the right to participate in affairs of state and run for office, with a quarter of parliamentary seats set aside for them. But human rights and women’s groups are alarmed by the constitution’s second article, which declares Islam to be the official religion of the state and “a basic source of legislation.” The new Supreme Federal Court, which is to interpret the constitution, is required to include experts in sharia law. Their number and other crucial details are to be decided by a new parliament, to be elected on Dec. 15.
That election will give life to the new constitutional order, and indicate whether Sunnis become a part of the government or strive to undermine it. It will likely take place against the backdrop of Saddam’s trial for crimes against humanity, which began last week and was adjourned until Nov. 28. For now, Washington is portraying the constitutional vote as a reason to celebrate: Sunnis, who boycotted last January’s elections, turned out this time—even if they may have mostly voted No. “The key here is the Sunnis have voted in large numbers,” Rice said. “That means they’re casting their lot with the democratic process—and one way or another, Iraqis are going to be in a position to move forward.” lifl
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