Tel Aviv Notes No. 145 August 30, 2005
A Constitution for Iraq: Does It Matter?
Ofra Bengio
Moshe Dayan Center for Middle Eastern and African Studies

The birth-pangs of Iraq's new constitution are symptomatic of the deep
crisis afflicting the country, and even if an agreed document is eventually
produced, it may not only fail to resolve the country's underlying problems
but could actually make them worse. After all, in its eighty-five years of
existence, Iraq has had no fewer than six constitutions. The first was
imposed in 1925 by the British authorities and it remained in effect for
thirty-three years. But despite (or perhaps because of) the fact that it
bore all the hallmarks of western democracy, that constitution never struck
roots in Iraqi society or dictated political processes there, and it was
abolished along with the Iraqi monarchy in 1958. The four subsequent
constitutions of 1963, 1964, 1968 and 1970 were all defined as temporary
instruments and lasted only as long as the regimes that promulgated them.

In fact, no Iraqi constitution ever became the authoritative framework to
regulate political processes or determine the country's identity and
orientation. Instead, they all served only one purpose: to legitimize the
regime in power. And there is no certainty that the sixth constitution,
presented to the Iraqi parliament on August 27, will succeed where all of
its predecessors have failed. True, this one was not imposed by a foreign
power or local dictator but instead enjoys the apparent advantage of having
been negotiated by representatives of the two largest communities in the
country - the Shi'ites and the Kurds, who together make up about 80% of the
population. And the result is the product of lengthy consultations,
compromises and mutual concessions. However, the drafting process, like the
elections of January 2005, has left the Sunnis feeling marginalized and
further strengthened their opposition to the emerging order. And now that
the draft document has been submitted to Parliament, the Sunnis are
threatening to torpedo it, either by invoking the right of veto given in the
interim constitution to any group of at least three provinces or by sheer
violence.

The threat of a procedural veto is only the most visible of the problems
likely to emerge on the road to a ratification vote in October. The main
stumbling blocks concern the most substantive issues: the identity,
character and structure of state and regime, the distribution of resources,
and Iraq's political orientation. While Shi'ites and Kurds remain divided
on these issues, they appear to have reached agreement - at least on paper -
if only in order to alter the fundamental balance of power in the state,
prevent a Sunni restoration, and correct what they perceive as the
injustices done to them in the past. But the Sunnis now see themselves as
the main victims of the substantive changes. For example, Article I of the
draft constitution declares that "The Republic of Iraq is a sovereign and
independent state whose government is republican, parliamentary, democratic
and federal." That outrages Sunnis who view any reference to federalism as
a prescription for the disintegration of a unitary state. Federalism is
particularly threatening to them because it might deprive them of the
exclusive control they have had since the creation of Iraq over oil and
other natural resources, most of which are actually found in the Kurdish
north and the Shi'ite south.

Another article arousing Sunni fury is the one that defines the Arabs of
Iraq, rather than the entire state, as part of the Arab nation. Those who
traditionally depicted Iraq as the incarnation of Arabism and the vanguard
of the pan-Arab cause view this article as a trick to expunge the state's
Arab identity and to elevate Kurdish and Shi'ite identities at their
expense. Indeed, the Sunni discourse is bitterly resentful of the
constitutional provision that Kurdish be made an official language
throughout Iraq and not just in the Kurdish region. And the Shi'ites are
also viewed with suspicion as a foreign element, not authentically Arab,
which will sooner or later link up with Iran. These fears explain the
panicked Sunni calls for help from the Arab world and even from the United
Nations to fight against this proposed constitutional order.

These two issues illustrate a whole host of other problems under discussion.
Cardinal questions such as religion and the state, the public role of
clergy, sources of law, the status of women, treatment of former Ba'thists,
division of power between center and periphery, the role of the army and
para-military forces, and the status of Kirkuk suffuse debates over all 139
articles of the constitution, and almost any one of them could produce an
explosive outcome.

In fact, the real test of this constitution, as of all previous
constitutions, will not be in the drafting of the document but rather in the
relations of forces on the ground. Consequently, any celebrations by the
Shi'ites, the Kurds and their American allies over the promulgation of a
draft constitution are, at best, premature. In practice, nation-building
and state-building in Iraq are proceeding in very erratic ways. On the one
hand, Kurds and Shi'ites are pulling in the direction of
identity-construction that takes Iraq further and further away from the
vision of a unified state. On the other hand, Sunnis are waging what looks
like a desperate but increasingly futile struggle to restore an Iraq that no
longer exists. But the Sunni war against the constitution and against the
stabilization of the situation on the ground may go on for a long time;
despite their weakened state since the collapse of the Ba'th regime, they
still have considerable capacity to sabotage developments not to their
liking. Moreover, there is no functioning center, and social and economic
trends do not promise an easy evolution of the new Iraq envisaged by its
founders.

The new Iraqi constitution as presented to Parliament is not the outcome of
long-term social and political processes leading to a social contract agreed
among large segments of the population. Instead, it is the result of hasty
acts, various internal and external pressures, and the constraints of time
and place. Even if it is approved by Iraqis in October, there is therefore
no assurance that it be a major factor in the formulation of the character
of the country.
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through the generosity of Sari and Israel Roizman, Philadelphia

KEYWORD: Iraq