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9.30.2010

Ambiguities in Iraq's Constitution

Last week I participated in a fascinating conference hosted by the National Constitution Center and University of Pennsylvania Law School that waded neck deep into Iraqi constitutionalism, and federalism in particular. I argued that among the problems with the federal framework established by the Iraq Constitution is that it is both ambiguous and internally inconsistent to the point where there are now at least three widely held competing views of the powers and authority of Iraq’s fifteen provinces (all of Iraq except the Kurdistan region).

Another participant argued the contrary – that the ambiguities in Iraq’s Constitution have been beneficial in that they've allowed for flexibility as Iraqi notions of federalism have evolved. The implication being that an unambiguous text that concretely froze Iraq’s federal design based on the views around the constitution negotiating table in 2005 would be detrimentally restrictive and contrary to the vision shared by many (if not most) Iraqis today. (It merits reminding that not only have Iraqi Shia views changed substantially since 2005 – from favoring decentralized regions to a more centralized nationalistic vision of Iraq – the Sunnis were not even present during the key negotiations and drafting.)

If we are able to put aside our distaste of the idea of a Constitution being so overly ambiguous and self-contradictory (it’s difficult to have rule of law without clear laws) then, particularly for Iraq, the ambiguities may indeed prove useful. Iraq’s constitutional “moment” was almost just that… a moment. The Constitution was negotiated and drafted in about six weeks, under occupation, and in a hostile and unstable environment. As previously mentioned, a key constituency (Sunni Arabs) was not even present. There is no way Iraq’s components could have fully discussed and reached consensus on such existential matters as the division of powers between levels of government, the distribution of oil revenue, or even the very map of Iraq – each of these issues is ambiguously or incompletely resolved in the Constitution.

Perhaps the ambiguities might better be thought of as placeholders until such time as Arabs and Kurds, Sunni and Shia, can reach consensus on these issues. Iraqi federalism can continue to evolve until a final interpretation (through adjudication or amendment) is reached. The pragmatist in me sees the wisdom in this. The rule of law practitioner in me still bristles.

3 comments:

  1. I agree with the points that you make. One question: isn't part of the problem is that the current arrangement doesn't provide for a satisfactory mechanism for allowing the constitutional debate to evolve in a positive manner? You and your interlocutory at UPenn are right that ambiguity can help, and that 2005 was merely a "constitutional moment". But isn't the problem that we appear to be frozen into that "moment" with very few prospects of breaking free?

    Something else - would you consider to stop referring to the federalism debate as being something that "Shia and Sunni" have to work out? You obviously already know that there isn't a religious divide on this issue, in that both communities have broken down very sharply on whether more federalism or more centralism is necessary. Other people have referred to the debate as being between "centralists" and "federalists". That terminology isn't perfect but it is certainly better than terminology that seeks to portray the debate in purely sectarian terms (and which seems designed to fit into western pre-conceived notions of how Iraqi society functions). Would you consider abandonning the terms that are so commonly thrown about in Western circles about Iraq in favor of something that would reflect the complexity of the ongoing debate?

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  2. There already is a mechanism for moving the constitutional discussion in Iraq forward -- the amendments proposed by the 2007 Constitutional Review Committee that are stuck in the CoR. The impasse is, as you know, a political one. Constitutional reform suffers from the same malaise and deadlock as government formation. And until Iraqi officials feel they are near or at the brink it is unlikely they will seriously address such issues as the disputed territories, federalism, and oil. This is the tragedy of the lost 2005 "constitutional moment" -- for even if one can say the ambiguities serve a purpose in allowing for evolving views the fact remains it is now much harder to get the parties to make meaningful compromises than it was when they were still negotiating and drafting the Constitution. Looking forward, what might break the impasse and get serious discussions on these issues started again? The best prospect, I think, is the withdrawal of US troops, which poses a major concern to the stability in the north in particular and could help jump start discussions between the central government and the Kurdistan region on territory, oil, and other matters.

    As for your objection to my describing the debate using ethnic and sectarian terms (actually, you only objected to the "Sunni" and "Shia" designations but I assume your point applies to "Arabs" and "Kurds" as well) -- while ethnic and sectarian monikers might be less useful then they were in 2005, they still, unfortunately, to a great extent fairly describe the Iraqi political landscape. I wish it were less so. That said, I agree we do not need to perpetuate identity politics in Iraq.

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  3. Thanks for this. On the first point, it looks like we agree - the current framework does provide for some mechanisms (such as constitutional revision, and the provisions that are already in force on government formation) but there is little debate that these have proven to be unsatisfactory given the context. The debate has not moved forward, firstly because there is no agreement on the constitution itself and secondly because the constitution doesn't provide for a satisfactory method to resolve those differences.

    On terminology, I don't agree with what you say. Being "sunni" or "shia" today says nothing about what opinions on issues such as federalism, oil, etc. There are sunnis and shia on both sides of the debate, and those terms are particularly unhelpful today in relation to constitutional issues. There is however a much stronger sense of agreement in the Kurdish community although still with some nuance.

    Ethno-sectarian identity is still clearly very important when it comes to elections (ethno-sectarian groups continue to vote according to clear patterns, but those patterns have clearly evolved since 2005, to the extent that many Iraqis feel confortable voting for members of ethno-sectarian groups other than their own), but it does not (and never has) determined views on federalism or natural resources. Iraqis remain firmly divided on these issues, but not along ethno-sectarian lines.

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