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  • Author: Jonathan Morrow
  • Publication Date: 07-2006
  • Content Type: Working Paper
  • Institution: United States Institute of Peace
  • Abstract: The cycle of violence in Iraq is, in part, constitutional: it derives from competing visions of the Iraqi state that have not been reconciled. An amendment to Iraq's constitution to delay the creation of new federal regions, together with a package of legislation and intergovernmental agreements on oil, division of governmental power between Baghdad and the regions, and the judiciary, may be enough to slow or even arrest this decline in the security situation, and may be achievable. A “government of national unity,” though desirable, will not by itself be able to generate the necessary constitutional consensus. Iraq's new legislature, the Council of Representatives, is now considering the process of constitutional amendment described in Article 142 of the constitution. Prime Minister Nouri al-Maliki has announced the constitutional review as part of his government's platform. This amendment process, assuming it proceeds, will come in the wake of widespread opposition to the constitution from Sunni Arab Iraqis in the October 2005 referendum. It is expected that a Constitution Review Committee (CRC) will soon be appointed, in line with Article 142. To the extent that it was opposed by Sunni Arabs, the constitution lacks the essential criterion of any constitution: the consent of all major national communities. The 2005 Iraqi constitution may nonetheless, as a legal text, be a sufficient and necessary framework for the radically regionalized Iraqi polity which the constitution drafters envisaged. The constitutional challenge in Iraq is first about peacemaking, not state building. As the Iraqi parliament faces the challenge of appointing, mandating and staffing a CRC, the first, and essential, set of questions is therefore political: How can the amendment process be used as a vehicle to remedy the political failure of last year's constitution drafting process? How can consensus be built, and in particular how can Iraq's Sunni Arabs be encouraged to give their assent to the new federal Iraq? How can Iraq's Kurdish and Shia leaders be encouraged to make worthwhile constitutional concessions to Sunni Arab positions so as to elicit that consent? The second set of questions is legal: What are the minimum constitutional amendments needed, if any, to ensure that Iraq is a viable, if not a strong, state? To the extent that the Sunni Arab position has been one that purports to defend the Iraqi state, legal or technical improvements to the text that support Baghdad's ability to govern may draw support from Sunni Arabs, thereby generating clear political benefits. There are additional legal questions that, though not strictly related to the Sunni Arab problem, are pressing: in particular, What are the minimum constitutional amendments needed, if any, to ensure that the human rights of all Iraqis receive adequate protection? It is not only the Sunni Arabs who feel disenfranchised by the constitution; nationalists, some women's groups, and groups representing Iraq's minorities express similar views. It will be very difficult to pass constitutional amendments of any sort, especially those that seek to shift power from Iraq's regions to the central government. Regional interests have the upper hand, constitutionally and politically. There is no reason to expect that the constitution's Kurdish and Shia authors will see the need for constitutional amendments to the text that they themselves deliberately, if hastily, constructed. The referendum procedure for amendment is onerous, with a three-governorate veto power. High expectations of the amendment procedure will lead to disappointment and may amplify, rather than reduce, violence. For this reason, legal instruments other than constitutional amendments must be considered as ways to remedy the political and legal deficiencies of the constitution. A CRC should be established, with strong Sunni Arab membership. Given the pressing and complex nature of the necessary constitutional deal, the CRC should be mandated to make recommendations, where appropriate, not only for constitutional amendments, but also for (1) legislation, (2) intergovernmental agreements and, where appropriate (3) interparty agreements and (4) international agreements, all of which might encourage Sunni Arab political commitment to the Iraqi constitution and ensure viability for the Iraqi state. A three-part formula, concerning the creation of new regions, oil, and the delineation of powers between the central government and the regions, offers a way forward for the CRC to heal the wounds caused by the deficiencies in the 2005 drafting process. That formula would not require the Kurdistan party or the hitherto most influential Shia party, the Supreme Council for the Islamic Revolution in Iraq (SCIRI), to make major modifications to their constitutional positions.
  • Topic: International Relations, Development, Government
  • Political Geography: Iraq, Middle East, Arabia, Kurdistan