Guest Editorial: Arato on Iraqi Constitution
If I Were an Iraqi…….
Andrew Arato, New School University
‘ Had I been A French citizen during the referendum on the European Constitutional Treaty in May I would have voted Yes. I admit, the making of that Constitution through the European Convention and the subsequent Inter Governmental Conference had serious democratic procedural deficits. The Convention did not sufficiently break out of from a government controlled process, did not involve the European Parliament enough, and gave no voice to European voters in a coherent and organized manner. And yet, on the level of constitutional substance, the new treaty had important gains, for human rights and for the chances of a unified European policy in the world. That is why I would have voted yes. Those who voted No to strengthen national sovereignty or the welfare state only helped to make both weaker. In the crunch one must vote substance over procedure.
There is no such a dilemma in Iraq. Both the procedure that produced the constitutional draft that will be voted on this October 15, and its constitutional substance were and are disastrous. As to the procedure, the pathetic rules of the pathetic Transitional Administrative Law [TAL] were violated in a pathetic manner. To start from the beginning, a foreign country, the U.S. has played an unseemly, illegitimate and probably illegal (Hague Convention, 1907) role in the constitution-making process of an occupied country.
Next, the TAL’s rules were repeatedly violated: there was no public or parliamentary discussion of the draft, and it was never voted on. The text was repeatedly changed after the only deadline that was (in my view) legally amended. [Then the three-province veto by a two-thirds majority was reinterpreted as a two-thirds majority of registered voters rather than of actual voters.] Only international pressure finally kept the National Assembly from an absurd misinterpretation of the rule of ratification through a mere law, actually a hidden and therefore illegal constitutional amendment.
As to substance, this so-called constitution did not decide the question of how the second parliamentary chamber is to be organized and elected, leaving the question to the third parliament that will be elected under the new rules! While the makers of the draft did decide the structure of the presidency, they immediately replaced this rule for one parliamentary session by that of the supposedly superseded TAL involving a troika, this time with rigid vetoes. And, on the question of the organization of regions, they created the foundations of a loose confederal state, again deferring the decision on the exact mechanism to a simple parliamentary majority later.
The same tactic was used regarding issues of the greatest concern to secular Iraqis and advocates of women’s rights. The exact number and method of appointment of the Supreme (Constitutional) Court with Sharia judges was to be left to a 2/3 parliamentary vote in the future, with excellent chances that such a court cannot be constituted at all. That will leave plenty of room for the parliament to establish– without any control or revie–the exact meaning and mechanism of the laws governing personal status, which the draft leaves up to the majority.
So there are plenty of reasons for voting against the constitution in general. There are even stronger reasons for particular population groups to do so. If I were a Sunni Arab, of course I would vote against a draft that is being imposed by an exclusionary Shi’ite –Kurdish leadership bargain directed against me and my group, giving us no other choice than accepting either a humiliating subaltern status or supporting the bloody, nihilistic insurrection.
And if I were a liberal, secular Iraqi I would vote against the draft because it will solidify religious oppression in at least a large part of the country, and over most of its women, and because one cannot begin a system of the rule of law by grievously and repeatedly violating the rule of law in the beginning. But if I were an Iraqi patriot of whatever background, I would also vote against the draft because it follows the recipe of some American advisers of the Kurds that the best way to stop the break up of the country is to break it up on the constitutional level, while the best method to stop Iranian domination is to deliver the nine most important provinces with 2/3 of the oil, half the people and all the ports to Iranian influence.
I would also vote against this constitution if I were a Kurd able to look a little bit ahead, beyond positions that are fast becoming obsolete. A Sunni centered Iraqi authoritarian state is now in shambles and cannot be reconstituted. The new autonomous rights of the Kurds have been conceded by the Sunni negotiators, however reluctantly. Who will dominate both the central state, and the most powerful region, the Prussia of Iraq when the Shi’ite nine province region is formed? Would it not be in the interest of the Kurds to start supporting Sunni aspirations, rather than work toward a “federal” arrangement which may lead to a breakup, but could also lead to a constellation where they may be dwarfed by one powerful partner with the strongest regional state as its supporter.
But if I were a Shi’ite not in one of the nine provinces, I would most definitely vote against this constitution. The oil resources monopolized by the Northern and Southern regions will impoverish me the same way as my Sunni neighbors. Worse, to be a member of the Shi’ite majority in the Sunni region thrown together by default is going to be no picnic for either Shi’ite or Kurdish minorities. Nor would the predictable communal violence and ethnic cleansing that would flow from such arrangement.
Finally, if I were a Shi’ite in the South I would also vote against this constitution, and not only because the Grand Ayatollah Sistani has always warned against the breakup of Iraq. Even if I were a better friend of Iran than of Sistani, I would still vote against the document. Simply put, it gives too great a victory to Iran and puts it on collision course with the United States. The Americans insanely enough already gave Iran a very great victory, one that the government in Teheran never could even imagine on the battlefields of the past. To push this victory to the point where Iran openly controls Iraq through its most important part (or only that part with a failed state in the middle) contains the seed of a war with the United States, a war neither side can win. If the Iraqi state stays together, Iran’s interests will be well enough represented through the Shi’ite majority of the country. The Islamic Republic cannot long survive a move for much more than that.
Let me grant that voting against this constitution is no utopia. It merely gives Iraq yet another chance, under the American imposed TAL, at a historical compromise among all groups and factions. This compromise has been repeatedly missed and would be possible only if the United States finally learns to stay out of the Iraqi political process and stops distorting the terms of bargaining, producing for example the absurd illusion that the Sunni representatives are pathetic, unrepresentative, recalcitrant supplicants whereas they are actually the moderate part of a milieu that indeed represents real power in Iraq. Victory in the referendum, and new elections could make just these moderate Sunnis partners in a new constitution making process where the three sides recognize one another as equals.
For the moment, the flag earlier raised by Sistani, the flag of Iraqi integrity in the face of the occupation has passed on to them.