Constitutional Changes In Iraqi

Constitutional Changes in the Iraqi National Assembly

Guest Editorial by
Andrew Arato

It seems there are important changes about to be enacted by the Constitutional National Assembly in Iraq. And the direction of change favors the Arab Sunnis at the expense of the Kurds. This may be the last time when a more enlightened Kurd approach than one we have seen so far, less dependent on the American occupation, can foster a historical compromise that would block the road to a strong Arab nationalist revival. I personally have nothing but admiration for the Kurds, and their ability to fight injustice in so many historical contexts. Nevertheless I have come to the sad conclusion that the state bargain they have made with the Americans, in negotiations starting in January of 2004 (See: Diamond: Squandered Victory 141, 161ff; Phillips Losing Iraq, 187ff), concerning Iraq, under the name of Transitional Administrative Law [TAL], excluding the Sunni political forces and disregarding the nationalist heritage of the Shi’a is an example of overreach that cannot work even if for the moment the governing coalition adheres to it.

The electoral rule and the amendment rules currently in force express that state bargain. The actual authors of the former, UN officials chose it for practical reasons. A one country district PR did not require a census of the country and its districts to apportion seats in advance. But it was a turn-out dependent system, and by the Fall of 2004 it became clear that because of the insurrection Sunni turn-out would be very low, giving their parties at best a much lower proportion of the votes/seats than they would have otherwise gotten. The system should have been changed right then and there, but the dominant forces that had their origin in the old Governing Council would not hear of it.

In fact the Sunni boycott was a rational response to this situation, because a low percentage of seats would not have been raised, but a near zero percentage had to be dealt with if the old exclusion was not continued, and this happened in the case of the National Assembly’s Constitutional Committee with the addition of 15 Sunni members from the outside.

The amendment rule of the TAL or interim constitution, and especially the ratification rule of the new constitution that is a second, more important amendment rule are even more important: they contain outright Kurdish vetoes. Regarding the former one member of the presidential council (almost certainly a Kurd), for the latter the voters of three provinces can veto a new constitutional proposal. It is useless to say the Sunnis too have a member of the presidential council, and three provinces. The vice president (ex-president) does not represent the militant, organized forces of Sunni society, and the three province veto of a new constitution only re-affirms the TAL, that is good for the Kurds but bad for the Sunni. In fact both these measures were sought and achieved as specifically Kurd guarantees, the latter being deeply resented by the Shi’a and especially Ayatollah Sistani who blocked UN SC approval of the TAL over this matter, and not Islam or Sharia or anything like that.

The new rules being voted on have a very different spirit. As to the electoral rule it seems that the National Assembly, over the opposition of Allawi’s party, has already approved a PR system based on provincial districts. Such a less proportional system, bad for small parties and parties scattered all over the country would no longer be turnout dependent. Even if the insurrection and intimidation continues, the Sunni provinces would get their share of seats that would be determined in advance. Most likely they would gain most at the expense of very small parties, but the big ones, the Shi’a list and the Kurdish list would take mild losses too. Note however that in the case of the Kurds even mild losses would put them under any reasonable figure that could be used to veto a constitutional amendment. Today they have 30% of the seats and that figure is ¼ or 25% .

In fact in the current draft, sloppy and incomplete as it is, minor amendments would take 2/3 of the vote of one national assembly, major amendments (Netherlands style) would take 2/3 of two assemblies, with an election in between. In both cases a referendum would have to approve, by simple majority, but there is no provincial veto of any kind. Nor is there a need for a presidential council to unanimously approve (there may be only one president). In short, large minorities, regional or ethnic, unless they control over 1/3 of the parliamentary seats lose their control over constitutional change. Iraq, now a bizarre combination of a confederation, federal and centralized state would at the very least lose its most important confederal quality the Kurds have fought so hard to retain. But it was not enough to get such an arrangement on the bases of an agreement with the Americans alone.

Finally, it took the consent of the Kurds, again assuming a Kurd member of the three person presidency to name a prime minister, making the formation of government if not its later composition dependent on their will. Strategically speaking, they should never have accepted in February 2004 the combination of anything less than a majority of important Shi”ite ministers balanced by a Kurd PM, despite or rather because of the absolute Shi’a parliamentary majority. The new constitutional draft seems to have only one president, a more ceremonial one, who must first offer the leader of the largest party the position of the powerful prime minister. Now, apparently, in a much better federalist formula, Kurdish interests are going to have to be protected in a second parliamentary chamber based on provinces, and probably regions, rather than in a rigid power sharing scheme. This is what was called moving from consociationalism to constitutionalism in South Africa.

What happened? Let us first notice that for the first time Iraqis are negotiating with each other. Instead of the deformed and exclusionary bargaining structure of the Governing Council, and American-Kurdish state bargain, now the Shi’a have a voice commensurate with their numbers and genuine Sunni representatives finally gained their place at the negotiating table, the expanded Constitutional Committee or Commission. But this alone would not explain the relative weakening of Kurdish bargaining position.

The Americans are in trouble. They cannot militarily control the sector of Iraq they are supposed to deal with, the Sunni sector. If they ever want to leave or leave with their main forces while maintaining important bases they must now come to terms with the Sunni. Thus the bizarre outcome: two years after some of us did so they too have become advocates for inclusion, promoting formulas I could have written myself (and did write in this venue). After dismantling the Iraqi state, after negotiating a state bargain with so many confederal concessions to the Kurds, they have suddenly become spokesmen for the integrity of Iraq. They want to rush through a constitution, poorly drafted, full of holes, even worse technically than the TAL, because in its current form (along with the electoral rule) it will redress many Sunni grievances, and this may allow the consolidation of more autonomous, Sunni political forces that may split the insurrection. The latter is a worthy goal of course. But it should not happen at the expense of the dignity or interests of other Iraqi political forces.

It is my understanding that the head of the Constitutional Committee has called for a meeting of all the political principals of the negotiators for this week. Let me appeal to them here. Let this be the beginning of a series of important meetings, without American time tables, without foreign imposition. A federal state using its resources equitably, allowing for alternative forms of life, religious as well as secular, is not such a difficult thing to negotiate. Others have done it, without foreign ambassadors or even scholars telling them what to do. If more time is needed, current rules can be appropriately amended by ¾ of the National Assembly, though one deadline is gone. As for the Kurds, trusting the 50, 000 brave pesh merga instead will work for six months, maybe a year or two. It may be better than trusting the Americans, or relying on the three province veto that can be easily reversed when the next National Assembly repudiates the TAL and adopts the new constitution according to new rules. But a historical compromise with other Iraqis would be a much better thing to trust, if it can be achieved. Several steps now undertaken in the Constitutional Committee should indicate that such a compromise is possible. ‘

Andrew Arato
New York