The Implications of Iraq's Proposed Constitution

Posted in Iraq | 31-Aug-05 | Author: Adam Wolfe

An Iraqi National Assembly session discuss the drafted constitution in Baghdad.

On August 15, Iraq's constitutional drafting committee failed to meet its deadline to deliver a constitution to the National Assembly, which then extended the deadline by one week. The following week, a draft constitution was submitted but only on the condition that negotiations would continue for another three days. This third deadline came and went without agreement. Finally, on August 27, the final draft of the constitution was delivered to the National Assembly without the approval of the 15 Sunni Arab committee members, and without a vote.

The failure to win the Sunni committee members' support weakens the prospects for bringing stability to Iraq in the near term, potentially laying the groundwork for civil war. The constitution's embrace of federalism seems to destroy any illusions of a strong, centralized government emerging in Baghdad, and, if approved on October 15, could lead to the further fracturing of Iraq along sectarian lines and could strengthen the insurgency due to widespread Sunni Arab rejection.

Any intensification of the insurgency would affect negatively the interests of the United States. Domestic pressure is growing for the Bush administration to begin a limited withdrawal of troops from the conflict; U.S. forces are overextended, which limits Washington's capability to threaten intervention effectively elsewhere. An intensification of the insurgency will make it difficult for the United States to pull its troops out of Iraq since Baghdad's current security forces are not capable of adequately handling the ongoing guerrilla campaign.

What the Constitution Means for Iraq's Future

Many issues proved highly contentious during the constitutional negotiations, but most were resolved by August 25. According to Article Two of the proposed constitution, Islam will be "a basic source" for the law -- a compromise between religious Shi'a Arabs who wanted Islam to be the fundamental source of law and secular-minded Iraqis who would have preferred a more diminished role for religion. This compromise will also allow clerics to sit on the country's Supreme Court, but not as a majority. Protections for women's rights, religious freedom and democratic principles were added, though it is not clear whether they will trump Islamic law when in conflict.

A bargain of sorts was also reached on the sharing of oil revenues. Iraq's existing oil fields sit in the northern region controlled by the Sunni Kurds and in the Shi'a-dominated south. Sunni Arabs feared that language in the proposed constitution would allow the Kurds and Shi'a to control the revenues generated by the oil fields. Article 110 proposes that all revenue generated by existing operations will be distributed fairly based on the population of each province. However, the language is vague and stipulates that those regions neglected by "the former regime" -- the Shi'a and Kurdish areas -- will be allowed a disproportionate share of the revenue for an undeclared period of time. This compromise did little to assuage Sunni Arab concerns over federalism.

Federalism became the major sticking point when pious Shi'a proposed a system that would allow for a province to link up with other provinces to form a federal region -- with greater autonomy from the central government -- merely through a referendum by simple majority. It was expected that the Kurds would maintain the autonomy of the region they control in the north, but this provision proved indigestible to the Sunni Arabs. Some of the Shi'a negotiators imagined that the provinces in the south, sitting on some of Iraq's major oil fields, could link-up to form a "super" region. Their Kurdish counterparts allowed this language to be inserted because it will strengthen their claim to Kirkuk, which under the Transitional Administrative Law for Iraq (T.A.L.) will likely be absorbed into their autonomous zone anyway.

The Sunni Arabs believed that the main Shi'a negotiators were laying the groundwork to break up Iraq along sectarian lines, leaving them with the oil-free regions. Secular Shi'a argued that this would allow Iran to establish a toehold in southern Iraq, as many of the region's leaders will be drawn from the forces that fought on the Iran side of the Iraq-Iran war. The pious Shi'a and Kurdish negotiators bent slightly on these issues, but no compromise with their Sunni Arab counterparts was struck.

The other major point of contention for the Sunni Arab negotiators was the de-Ba'athification policy. Article 132 calls for a continuation of the removal of ex-Ba'ath Party members from government posts during the transition to a new government. Sunni Arabs argue that this had no place in the constitution since it addresses a period of time before the constitution will come into effect. Also, an absolute majority in the Council of Representatives is necessary to end the de-Ba'athification policy, something the Sunni Arabs simply will never be able to deliver. This language was slightly adjusted in response to Sunni Arab requests, but remains part of the document.

While the national assembly did not vote on the draft constitution, it will be put to referendum on October 15. As the second deadline passed, Shi'a and Kurdish negotiators worked out the final details without the input of the 15 Sunni Arab members. When presented with the final document, the Sunnis rejected the text and forced yet another delay. Ignoring previous statements about Iraqi sovereignty, Washington became intimately involved in the final days of the negotiations and pushed for a compromise but also approved of the locking out of the Sunni Arabs. U.S. President George W. Bush personally called Abdul Aziz al-Hakim, a cleric and the leader of the Supreme Council for the Islamic Revolution in Iraq (S.C.I.R.I.), to lobby for a compromise. In the end, the constitution was delivered without Sunni Arab approval.

Everything now depends on October 15. The U.S. has scaled back its ambitions in Iraq and believes the constitution's approval will greatly determine the timeline on which troops can be withdrawn. The run up to the referendum will see an increase in sectarian rhetoric and perhaps an increase in violence as insurgents attempt to derail the vote. It is taken for granted that the Kurdish north and Shi'a south will cast their votes for the constitution. What is less certain is how the center of the country will respond.

Looking Beyond October 15

The prospects for Iraq's future now largely rest on the Sunni Arab reaction to the constitution. Whether or not Sunnis participate in the October 15 referendum, and whether or not their participation has an effect on its passage, will be of extreme importance. There are several possible scenarios that Sunni Arab participation could take, some more probable than others. In the unlikely prospect that Sunni Arabs turn out for the referendum in decent numbers and approve of the text, the insurgency will lose its most potent domestic base of support; the U.S. plan to hand off the responsibilities of containing the insurgency could then continue on its proposed course. Though this would have little effect on the jihadist insurgents, it could undermine the Ba'athist insurgency.

In the more likely case that Sunni Arabs stay away from the polls in October and the constitution gains approval without their participation, the insurgency will likely continue unabated, as the central government will find it difficult to project its power into regions that reject its authority. In the previous elections, Sunni Arabs largely did not participate because of threats of violence by jihadist and Ba'athist insurgents. While some of the Sunni Arab groups who previously argued against participation seem to have changed course and now advocate voting down the constitution, the insurgents' threats may prevent any substantial uptick in Sunni turnout.

This would likely prevent any significant Sunni Arab participation and would strengthen the trend toward federalism based on sectarian lines that the proposed constitution allows. A weak central government dominated by regional governments could eventually lead to the dismantling of Iraq along sectarian lines -- a prospect that the Sunni Arab-dominated central region, which lacks the oil fields of the Kurdish north and Shi'a south, would violently reject.

Another likely possibility is that Sunni Arabs will turn out for the referendum but fail to muster the two-thirds majority in three provinces necessary to defeat the constitution's approval. If this scenario plays out, it is highly unlikely that the Sunni population would participate in the newly formed Iraqi state, and the insurgency would find an expanded base of support in the Sunni rejection. Reuters quoted a Sunni Arab delegate as saying, "If they pass the constitution, then the rebellion will reach its peak." While Sunni Arab non-participation on the referendum, if passed, could eventually lead to civil war, Sunni participation that fails to alter the outcome could lead to the immediate outbreak of such a situation.

The T.A.L. outlines the course of action if the constitution is defeated in October. The government will be dissolved and replaced by a new assembly to be elected no later than December 15. The new assembly would have another year to draft a second constitution, of which the T.A.L. does not lay out a process for passage. This option may be the best-case scenario for bringing the Sunni population into the political process, but that would depend on the Shi'a-Kurdish reaction. Potentially, Sunni Arab rejection of the constitution could harden the fault lines between the Kurdish-Shi'a alliance and the Sunni Arab leaders that they still view as oppressors. No group has been above using violence up to this point, but, to varying degrees, they have maintained the political tract as the main avenue to resolve their differences. It is possible that Sunni Arab rejection will encourage Shi'a and Kurdish groups to use force to resolve the differences, leading to civil war.

Sunni Arabs have majorities in three provinces, but it seems unlikely that they would be able to generate a two-thirds majority in Nineveh, where there is a large Kurdish population. The Shi'a-Kurdish decision to send the constitution to referendum without the support of the Sunni Arab leadership was made on the assumption that the Sunnis will be unable to defeat the measure. The possibility that the Baghdad province could join in opposition to the referendum seems to be the biggest gamble to the Shi'a-Kurdish proposal. If it is defeated, the U.S.-led coalition will need to fill in the void left by the dissolved government if a singular Iraqi state is to be maintained, necessitating the delay of current withdrawal plans.

No matter the outcome on October 15, rebellious Shi'a leader Moqtada al-Sadr seems poised to reap the benefits of the referendum. When al-Sadr's followers attempted to reopen his office in Najaf on August 23, the Badr Corps, the armed faction of S.C.I.R.I., a rival Shi'a group, blocked them. The violence quickly spread to several other cities, including Baghdad, and Prime Minster Ibrahim Jaafari took to the airwaves to plead for peace, with little effect. Only when al-Sadr ordered it did the violence come to an end. This demonstration of power is important to note because al-Sadr, repeatedly declared "marginalized" by U.S. officials, is emerging as a bridge between Sunni Arab insurgents and nationalistic Shi'a in his rejections of the trend toward federalism advanced by the proposed constitution.

Nationalist Shi'a fear that religious Shi'a, who fought on the Iran side in the Iraq-Iran war, would dominate a southern autonomous region and find al-Sadr's proposal of a strong centralized government attractive. Some secular-minded Shi'a might also find themselves in an alliance-of-interests with al-Sadr as October 15 approaches. Sunni rejectionists are aligned with him on the issue and al-Sadr has signed most of the Sunni Association of Muslim Scholars' declarations since January 2005.

The Sunni Arab leaders may be able to deliver sufficient majorities in the Anbar and Salahuddin provinces to defeat the constitution, but they will need al-Sadr's help to deliver Baghdad, a province in itself. Even if this scenario does not play out, the referendum is likely to find many malcontents, and al-Sadr seems poised to lead them. Whether his leadership will be within the government or against it depends on how the vote plays out. [See: "After Winning Concessions, Al-Sadr Tries His Hand at Diplomacy"]


The future of Iraq will largely be determined by the Sunni Arab reaction to the referendum on October 15. There are several scenarios that could quickly lead to civil war or to the break-up of Iraq along sectarian lines. The constitution does not propose a strong central government; it opts for a federal system instead. It is the Sunni Arab assumption that this is designed to deprive them of their share of the country's oil wealth. However, even if Sunni Arab concerns are addressed, a future Iraqi state without a strong center might, in time, lead to the break-up of its geographical integrity.

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