Balkinization: A Potemkin Constitution for Iraq?

A Potemkin Constitution for Iraq?

Anonymous

There is now a published translation of the latest leaked version of the Iraqi constitutional draft. (That website has lots of useful insider information about the Iraqi constitutional process more generally, so those who want to know more can follow quite a lot of detail there.)

I had very much hoped that the Constitutional Commission would take more time before finalizing their proposal. The Transitional Administrative Law or interim constitution permitted the Commission up to six months of extra time. And, in my view, the Commission needs it because there are too many really crucial things that are unsettled. Among them are:

-- whether Iraq is a federal state or a unitary state (this is the make-or-break issue for the Kurds)
-- what the role of Islamic law is in (or above) the constitution
-- what the principles of elections will be (country-wide PR, regional representatives, single-member districts)
-- what to do in the event that an election does not result in a workable parliamentary majority
-- how to divide oil revenues among the regions or between the regions and the center (this is one of the big issues for the Sunnis because they are afraid they will be left with nothing)
-- what the status of contested areas like Kirkuk is . . .

. . . and many other things.

Plus, it seems to that the present draft has many dangerous tendencies. For example:

-- the constitution concentrates too much power in the executive
-- the parliament is reduced to being a rubber stamp for the executive
-- the constitution seems to put Shari'a above the constitution
-- women's rights are restricted
-- the constitutional court is given the power of judicial review, but then four out of the nine judges on the constitutional court are required to have their primary education in Shari'a instead of secular law.

These things are going to take time to fix. If there were really time for a consultative process, both within the Commission and in the broader society, I suspect that the constitution would be much better.

The constitutional drafting process was supposed to begin right after the January elections. But because the political leaders dithered after the election and didn't form a government for months, the constitutional drafting process was shortchanged. Plus, the Sunnis entered late in the process and didn't get to participate as many of these features were put into the draft. Now it appears that the Constitutional Commission won't have time to do this right because they have acquiesced under intense American pressure in a deadline that is way too close.

Constitutions have to be real political bargains among political elites at the time of a political transition or else they will fail the moment they are promulgated. But such bargains cannot be pulled out of the air quickly. I'm afraid that the only kind of constitution Iraq can reasonably be expected to get within the next two weeks is a a Potemkin constitution. Unless the big questions are settled to the satisfaction of all of the major factions in the country, that is all a rushed constitution can be.

Posted 12:44 AM by Anonymous [link]