Summary

• 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.

Introduction: Political Failure, Legal Workability

With the formation of an Iraqi government, Iraq's permanent constitution has entered into force; and Iraq's new legislature, the Council of Representatives, has begun to discuss the process of constitutional amendment, itself mandated by the constitution in Article 142.¹ The text of Article 142 was agreed to right before the referendum, on October 12, 2005, as a last-minute compromise to prevent another Sunni Arab boycott of a vote on the country's new basic law. Many people—Iraqis and non-Iraqis—have pinned their hopes on this amendment process as a way of restoring a unitary, nonsectarian Iraqi state. Others, including some officials of the United States government, have disavowed Article 142 and dismiss the amendment process as a political impossibility, given the dim prospects of persuading the powerful Kurdish and Shia drafters to make permanent concessions to Sunni Arab positions.

Neither view is well-founded: the Iraqi constitutional amendment process provides a real, if fleeting, opportunity to achieve major political and legal agreements that would be in the interests of Kurds, Shiite Arabs, and Sunni Arabs alike, as well as secular Iraqis, women, and minorities. The "amendment process" will not lead to many real constitutional amendments, but it can be used creatively, to work in concert with interparty peace negotiations and the development of a legislative program directed at the viability--if not the strength—of the Iraqi national government. It is too early to declare an end to the Iraqi state, for too many people in Iraq rely on its continued existence. This special report details the way in which this progress can be made.

Iraq's permanent constitution, negotiated in the summer and fall of 2005, has failed to satisfy the most fundamental criterion of constitution making: sufficient consensus. That is, it failed to command the support of all of the country's major political, sectarian, and ethnic groups. In particular, Iraq's Sunni Arab community voted overwhelmingly against the constitutional text in the October 2005 national referendum: in the predominantly Sunni governorates of Anbar and Salahaddeen, more than 96 and 81 percent of voters, respectively, rejected the constitution. Iraq's interim constitution or Transitional Administrative Law (TAL), drafted under U.S. occupation and heavy U.S. influence, clearly envisaged that each of Iraq's three major blocs—Kurd, Shia Arab, and Sunni Arab—would agree on the final constitutional text: this was the purpose of the three-governorate (province) veto provision for a permanent constitution that was the central feature of the TAL.

True, nobody could expect a constitution for Iraq to be approved by each and every Iraqi citizen. Nor could any basic law for Iraq afford to alienate any one of the country's three major political blocs—but the Iraqi constitution did just that. It is a high-water mark of the degree to which Iraq's Sunni Arabs have been excluded, and have excluded themselves, from Iraqi public life. The result of this failure has been violence. Sunni Islamist extremism, operating outside the universe of constitutional argument, has clearly played a role in fomenting such violence; but it remains quite possible that the way the Iraqi constitution was drafted in 2005 contributed to the post-August shift of the Sunni Arab insurgency to attack Shia and Kurdish civilian targets, and the corresponding arrest, summary detention, and, in some cases, torture and execution of Sunni Arab suspects by Shiite members of the Iraqi public security forces. At a minimum, the 2005 constitutional process was a lost opportunity to reduce the drift toward sectarian violence.

The irony at the heart of this political tragedy, though, is that as a legal text, the constitution may be a reasonable basis for a workable Iraqi polity; and it may be the only such basis. The feature of the constitution that is apparently most objectionable to Iraq's Sunni Arabs is regionalization; but it is hard to imagine a different state structure for a country in which power, culture, ethnicity, sect, and tribe have created de facto regional identities and enabling institutions. The regionalizing identities are not necessarily permanent, but they are certainly durable. Regional institutions appear to be willing to govern, and, at least in the case of the Kurdistan Region and some southern centers (including Najaf and Karbala), they are able to do so.

Apart from the political problems that form the context of Iraq's constitution, there are some inherent deficiencies that are specifically legal. Contributing to the political failure of the constitution was the appearance of a constitutional text that did not meet high drafting standards and did not deliver, at a technical level, a wholly coherent vision of the Iraqi state. The constitutional text has now been the subject of several legal analyses, some of which catalogue the deficiencies in the text. Some of those analyses address aspects of the constitution that are believed to fall short of best-practice federal models, particularly those aspects of the constitution that do not provide for a strong Iraqi state. For example, under the Iraqi constitution, the central government has no power to tax in regions if the regions object, no explicit power to disband existing militias, and no exclusive power to regulate Iraq's oil sector. Regional security forces are explicitly recognized (apparently enabling the Kurdistan Regional Government to retain the peshmerga) at the expense of national military authority in the north. Iraqi central government law is subordinated to regional law if there are any inconsistencies between the two. Also (unusual for a parliamentary democracy), the prime minister cannot dismiss cabinet ministers without the consent of the parliament (Article 77). Iraq's central government, on paper and in reality, is possibly the weakest of any federal model in the world.

Some of the legal analyses of Iraq's constitution ascribe these deficiencies to inexpert or hasty drafting. What they often do not acknowledge, however, is that the predominantly Kurdish and Shia authors of the constitution, as they sat around their Green Zone tables in the Baghdad summer of 2005, were attempting the very constitutional outcome that was achieved: a prescription for a radically regionalized Iraq, with a weak (if not incapacitated) central government. Where the constitutional language as drafted is ambiguous—as with the provisions on oil—it usually reflects an inability of the parties to agree on the details. Yet it was no drafting error that led to the fragility of the central government as described in the constitution: For the most powerful of the Kurdish and Shia drafters, any government in Baghdad would be a natural object of suspicion. In the case of the Kurdish politicians, their constituents had already expressed in a January 2005 regional poll a very clear preference for government by a more or less full-fledged Kurdistan Regional Government, as opposed to central rule from Baghdad. The commitment of some of the most powerful Shia drafters to a regionalized Iraq, confirmed as late as August 11, 2005, came as more of a surprise, although it had antecedents in the desire of the residents of Basra to have a share in the oil wealth that surrounded their neglected city, as well as a more widespread and general Shia distrust of Baghdad.

Certainly, much of the international commentary, however perceptive on other matters, misses the central point about the constitutional drafting process in Iraq: radical regionalization was deliberate. One recent report points to the provision that subordinates central government law to residual regional law (Article 115) as needing amendment because it may topple the federal structure of Iraq. Certainly Article 115 poses special problems for the viability of Iraq, but to expect Iraqi parliamentarians to amend the provision for this reason is to lose sight of the major political current of contemporary Iraqi politics. Iraq is not going through a process of "decentralization," in which Saddam Hussein's extremely centralized powers are being more or less gradually devolved to regional interests that still depend on the center. Iraq did not enjoy the luxury of gradualism. Regime change did not consist of replacing Saddam Hussein's cabinet ministers with U.S. appointees; the dismantling of government ministries was near total. Saddam Hussein's government apparatus was utterly destroyed in 2003, and the central governmental power that existed before then reverted more or less immediately to regional and local sectarian interests. There is now little or no inherent power in the center at all, in part because there is no real center. Any new Iraqi government will hold only such power as regional interests permit it to assume. The new constitution of Iraq reflects this reality.

Indeed, regional interests are so powerful that Iraq must be thought of as a confederation—a collection of loosely affiliated states in a political union—not the federation that Iraq's constitution declares the country to be. More accurately still, the "Republic of Iraq" itself should be thought of as analogous to those entities stemming from international agreements (e.g., the European Union) whose purposes would be hard to achieve without constituent state support. In the case of Iraq, that support cannot be presumed. The basis of Iraqi nationalism is now slender indeed; the antiwar commentators in the United States who see an Iraqi identity emerging in a coherent antigovernment insurgency are as wrong as those proponents of the war who took a strong Iraqi state as a given.

It is true that this vision of a radically regionalized Iraq, when it found constitutional expression in August 2005, had the effect of amplifying Sunni Arab hostility to the constitutional text, in circumstances where Sunni Arabs had already been excluded from the drafting table.² Iraq's Sunni Arabs typically describe the constitution as a dismemberment of the nation that they once dominated, and they often equate regionalization with disintegration, anarchy, or civil war. It was this view, expressed with a greater or lesser degree of force by Iraq's Sunni Arabs in August 2005, together with their declared intention to block the constitution at referendum, that prompted a last-minute agreement on October 12, brokered by U.S. ambassador Zalmay Khalilzad, between Shia leaders and the predominantly Sunni Arab Iraqi Islamic Party, for a constitutional review that would supposedly amend the basic law to assuage Sunni Arab concerns in exchange for their support of the referendum. On October 12, after concluding the agreement, Ambassador Khalilzad announced in a Baghdad speech: "At the core of their agreement is a decision to mandate the next democratically elected Council of Representatives to review the constitution after its passage and recommend any amendments necessary to cement it as a national compact. This constitution, the basis of Iraq's emerging democratic government and the road map to its future, will be a living document, as all enduring constitutions are."³ He repeated his view that amendments were necessary for the constitution to have sufficient consensus in a op-ed piece published in The Washington Post on December 15, 2005: "To bring Iraqis together and consolidate their participation in the political process, the next National Assembly will have the opportunity to amend the constitution, with the goal of broadening support for the document and turning it into a national compact."

Recommendations

To the Iraq Council of Representatives:

• Establish a Constitutional Review Committee as soon as possible, with diverse membership and a strong mandate to include constitutional reform, legislative recommendations, and recommendations on intergovernmental agreements. Solicit international funding for the committee, but provide most of the funds from the domestic budget.
• Agree that the four-month timeline for the CRC does not start until the committee is fully established, with office space, a secretariat, and a sufficient budget to conduct public discussions.
• If necessary, take all the time that Article 142 affords, including the period between receipt of the CRC report and the approval of its recommendations.

To the Constitution Review Committee:

• Broaden the scope of recommendations beyond the narrow realm of constitutional amendment. Assume responsibility for finding new solutions to the problem of Sunni Arab alienation, with consideration of the legislation and agreements set out above, and for making the Iraqi state viable if not strong.
• Establish and use a robust secretariat of professionals to generate public debate in Iraq. Journalists and NGO officials with media training would be ideal. There should also be a team of professional constitutional lawyers.

To the Kurdish and Shia leaders:

• Be prepared, and prepare Kurdish and Shia constituents, for a constitutional concession to Sunni Arabs and Iraqi nationalists by amending Article 118 and delaying the timeline for the creation of new federal regions.
• Be prepared to make without prejudice concessions in legislation and intergovernmental agreements regarding oil, governance, and the judiciary, as described in this special report.
• Empower Kurdish and Shia delegates to the CRC, and advance party views through the CRC process.

To the Sunni Arab leaders:

• Advance Sunni Arab interests, not a Sunni Arab position. In particular, distinguish between those interests and the ideal of a strong centralized Iraqi government.
• Adopt a negotiating strategy that does not hinge solely on constitutional amendment but, rather, includes other instruments that are more effective and available.

To the U.S. government:

• Having brokered the October 12, 2005 agreement on constitutional amendment, ensure that the constitutional review proceeds. Try to moderate Sunni Arab and nationalist expectations of the amendment process. Support the CRC in efforts to find creative solutions to Iraq's constitutional impasse, including those described previously in this special report.
• Support United Nations and other efforts to bring about realistic constitutional compromises between the parties.
• Neither assume nor accept any formal role in the review negotiations. If there is to be a constitutional consensus in Iraq to endure beyond the U.S. presence, the United States should have no formal role. If there is to be a third-party underwriter, it should be the United Nations.

To the United Nations:

• Continue to serve as a mediator among constitutional factions. Continue to provide negotiating advice and issue-specific technical assistance to Iraqi politicians and civil society leaders in multiparty dialogues.
• Direct the efforts of international constitutional experts away from cataloguing perceived deficiencies in the Iraq constitution. A comparative approach should be used positively and realistically, not as a negative way of measuring the difference between the Iraqi constitution and some ideal. Engage experts on peacebuilding and the creation of viability and equity within the new Iraqi federation.

Notes

1. The full English text of the Iraqi constitution can be found on the United States Institute of Peace Web site at http://www.usip.org/ruleoflaw/projects/unami_iraq_constitution.pdf.

2. The author's previous instalment on Iraq's constitutionalism, Iraq's Constitutional Process II: An Opportunity Lost, Special Report, No.155 (Washington, D.C.: United States Institute of Peace, November 2005), describes the circumstances in which this exclusion was effected.

3. http://iraq.usembassy.gov/iraq/101305_compromise.html

About the Report

Starting in August 2004, the U.S. Institute of Peace Rule of Law program, one of the Institute's Centers of Innovation, has been providing in-country support on constitution making to Iraqi political, governmental, and civil society actors. The goal of this program is to maximize the transparency and inclusiveness of Iraq's constitutional process, enabling Iraqi citizens to engage directly with the drafters, and ensuring domestic ownership of the constitution.

Jonathan Morrow, senior adviser in the Rule of Law program, has been traveling frequently to Iraq over the past two years to observe and report on Iraq's constitution-making process and constitutional implementation. In this report, he makes recommendations for Iraq's upcoming constitutional amendment process that could make for a viable, if weak, Iraqi state and that could help to arrest the current decline in the country's security situation.