Looking Ahead
In drafting a constitution, Iraqis try to overcome (or sidestep) issues that could pull the country apart
The last time a constitution was supposed to be completed in Iraq, reporters waited for eight hours inside a conference hall, where fountain pens had been carefully laid out on an antique desk once used by King Faisal I, Iraq's first monarch. Specially invited children dressed in tribal garb lounged in front of a map of the nation emblazoned with the slogan "We all participate in the new Iraq." In the end, though, everyone gave up and went home, while leaders of the various ethnic groups continued to argue behind closed doors over details of what was to become the interim constitution, or the Transitional Administrative Law (TAL).
Now, 17 months later, a different group of leaders is writing Iraq's permanent Constitution, and everyone is hoping against hope that history does not repeat itself. "A lot of the same debates are happening all over again," says one official involved in both political processes. "A lot of it sounds very familiar. But at least they're doing it."
The completed document is due on August 15, and many of the same issues are back on the table: the division of power between the federal government and the provinces; the role of Islam in law; women's rights, and what to do about Kirkuk, the city claimed by Kurds that sits on a sea of oil.
Hard bargaining. The starting points did not look promising. The Kurds touted a version of the Constitution giving their region the right to conduct its own foreign policy and cut its own oil deals. The Shiite Muslims circulated a draft that forbids any law contrary to Islamic law. The Sunni Muslims said forget democracy; a dictator would be better for the country. But Iraqi-style negotiation is to start off with extreme demands, then backpedal.
The question is whether the resulting document will be relevant, or if it's the process that counts. Heather Coyne heads a team in Baghdad from the U.S. Institute of Peace, which has been working on building a dialogue between citizens and the drafters. "There is the fear that the political elites will get an agreement they can live with, but constituents won't think it reflects what [they] believe in," she says. Perhaps no one will know until it's put to the test. "When the TAL was passed, a lot of people thought it wasn't worth the paper it was written on," says an official involved in the TAL process. "But now the Iraqis are reading it word for word--whether the referendum requires [approval of] two thirds of voters or two thirds of registered voters, that kind of thing."
But in the end, because of the short time frame, many issues will have to remain unresolved. Officials familiar with the negotiations say there could be agreement on a process to resolve the status of Kirkuk, for example, rather than laying out specifics of the city's fate. New York University Prof. Noah Feldman, who was involved in drafting the TAL, raises the point that the U.S. Constitution survived and was ratified by being vague on controversial subjects such as slavery--but he adds that it ultimately led to civil war. "Similarly, in Iraq, putting off the question of how much independence Kurdistan will have might buy them time," he says, "but 20, 30 years down the line, it could lead to conflict, or even to secession."
The possibility of the population facing off along major religious and ethnic lines is acknowledged even by those most heavily vested in the success of the enterprise. Some think a more likely scenario would be the breakdown--rather than the breakup--of the nation, with the center disintegrating and the emergence of warlords running fiefdoms around the country.
And the United States, many drafters say, is responsible for keeping that from happening. "It is impossible for the Americans to create this situation in Iraq and not interfere. They have to correct their mistakes," says Salah al-Mutlak, a prominent Sunni member of the drafting committee. "The Americans gave privileges to some political powers that they didn't give to others. So now, they have to go back to these political powers and tell them to lower their demands."
But what is the bottom line? Some in the Bush administration admit they would be satisfied with a semblance of a democratic process--which would enable a U.S. troop pullout while still claiming victory. The Pentagon has been laying the groundwork for beginning a withdrawal soon after Iraq's planned December elections for a new government. "There is the notion that the U.S. has been operating by, for quite some time, which is to pass electoral and other benchmarks as swiftly as possible, and the faster you get past them, the easier it gets," says Wayne White, a scholar with the Middle East Institute, who until March headed the State Department's Iraq intelligence team. "But I think the further you go down the road, the harder it gets."
What's important, then, is not what the Constitution says, but how it is implemented. "What worries us," says Qubad Talabani, U.S. representative of the Kurdistan Regional Government, "is that a vague constitution will be left for an Islamist-filled constitutional court to interpret after the election." Observers point out that in many Arab countries there are progressive constitutions that are enforced poorly, if at all. It is the institutions built up around the document, such as the courts, that will decide the relevance of the Constitution. "What we'd want to see is any constitution that emerges out of the process to have checks and balances," says a senior administration official. "That's one way to avoid having a simple Islamist government."
Voting rules. People are also watching how the electoral law governing the December elections will be written. While the last election had the entire country vote as a single district, the next one is likely to break the country into multiple districts, each allocated a number of representatives proportionate to the population. This would ensure a certain number of Sunnis in the permanent assembly, regardless of voter turnout.
Which leads to the endgame: Will the process alone save the country? Assuming the Sunni representatives stay in the game, the challenge is winning over the people. "The insurgency will keep fighting no matter what," says a senior administration official. "The question is, the majority of the Sunni population--will they go with the insurgents, or those involved in the political process?"
With car bombs twice a day on average, temperatures surging, and a perpetual shortage of electricity and gasoline, the man on the street remains understandably skeptical. Yassin Nasr, a 39-year-old Sunni who runs a generator shop in the Yarmuk district (and whose nickname is the "Minister of Electricity" because he maintains a big generator for his neighbors, providing 15 hours of electricity to supplement the state's one hour), says his faith in the government was shaken by how much haggling happened after the last election. "The Constitution could tear us apart," he says. "There is no sense of brotherhood between the parties that came to Iraq after the war, and now they are the ones writing the Constitution." Still, he adds, the process of trying to work things out is crucial. That is, at least they're doing it.
With Amer Saleh
This story appears in the August 15, 2005 print edition of U.S. News & World Report.