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Guest Editorial: Arato on Constitutional Participation in Iraq

Constitutional Participation in Iraq


Andrew Arato

The election of January 30, 2005 was Sistani’s victory. It is indisputable that it was he above all who pushed through this election for a constitution making assembly in the face of American resistance and UN paternalism. But as Carl Conetta (The Iraqi Election “Bait and Switch”) has shown, elections under the given circumstances could easily reproduce a government formed by the same exile politicians who controlled the Governing Council and the Interim Executive.

As against Conetta’s prediction I am hoping for two things: First, that the vote for the United Iraqi Alliance will be large enough that they are not forced to resurrect the existing governmental coalition with Ayad Allawi. In order for this to happen, the latter’s governmental list would have to receive, along with allies, well under the 33+% that would allow him to veto all new governmental arrangements, and stay in power as the head of the current Interim Government unless he got the role he desired in a new one. And second, that a victorious UIA sponsor a truly historical compromise with the Kurds and the Sunni parties that boycotted the election. It is this second hope and its modalities that I would like to address.

There are three false formulas to avoid in the process of seeking a historical compromise. One is the ethnic trap. The Americans after all had sponsored many “Sunnis” in the Governing Council and now the Interim Government. The point is not ethnicity or religious practice or origins of a politician, but being part of the political articulation and organization of Iraqi society. Adnan Pachachi is not Sunni and Allawi is not Shi’a. They are exile politicians with few roots in Iraqi society, sponsored by the occupying power. Though exiles al-Jaffari and al-Hakim are however Shi’a because they represent real organizations in the South, and so is of course Moqtada al-Sadr. As to Sunni representation it is precisely the major parties and associations like the Association of Muslim Scholars that boycotted the election that have social and organizational roots and it is they who must be brought into the process. The fact that they may have links to the insurgents (like Gerry Adams to the Irish Republican Army) is a plus rather than a minus if the aim is to achieve social peace and stability. One makes peace with one’s enemies not one’s friends– as slain Israeli Prime Minister Yitzhak Rabin so well put the matter.

The second false formula is reliance on the Transitional Admistrative Law or interim constitution. It is now continually repeated in the press that the Sunnis will be represented in the constitution making process almost inevitably, because 2/3 of the voters of three Sunni majority provinces could subvert the ratification of any permanent constitution according to the provisions of the TAL. This type of “downstream” participation however is only negative, and may not produce anything if the drafters do not incorporate the plurality of the society in the first place.

Moreover, the TAL has a mechanism according to which it could become a quasi- permanent constitution. Rien ne dure que le provisoire people said in West Germany when the Basic Law was pronounced merely provisional in 1948. Indeed it survived till today, although in 1990 it lost its provisional status. The Hungarian constitution of 1989-90 was provisional, but it is still the constitution 16 years later. At the time of the overthrow of Saddam, Iraq was under a provisional constitution for 33 years, as little as that may have been worth.

The TAL actually takes specific steps toward its own long term survival. If indeed the voters of three provinces do reject a permanent draft by 2/3 , new elections would be held. All this could occur indefinite number of times with a year, and possibly 18 months between elections. The point is that for the duration of the whole process Iraq remains under the TAL (art. 61e). The reason why the Kurds are protected by this system is because the TAL already gives them strong federal and provincial powers. The Sunnis could remain a disenfranchised and insular minority however if their participation were reduced to a periodic irrelevant vote on a permanent constitutional draft that noone takes seriously.

Finally, Leslie Gelb’s suggestion (“The Lesson of 1787” NY Times February 2) that Sunni representation could be guaranteed by a constitutional convention à l’Americaine overshoots the mark in the opposite direction. He does not seem to realize that a convention that could write the proud words “We the people…” and was able to commit and get away with fundamental illegalities with respect to its convener, the Confederation Congress (writing a new constitution instead of amending the old one, dramatically changing the ratification rule) is a poor model to follow in Iraq after a popular election. It points not to viable compromise but to the conflict of two models of representation, one based on one person one vote, the other on ethnicities. The outcome is more likely to be conflictual dual power rather than historical compromise. No, the parity among groups should be established in a constitution writing expert committee of the new National Assembly, gaining its legitimacy first and foremost from the vote that Sistani was able to achieve in the face of American resistance and world skepticism. The Shi’a should be asked to compromise, but not to surrender all the fruits of their likely victory.

Andrew Arato


The New School University