JURIST Guest Columnist Clark Lombardi of the University of Washington School of Law says that given the ambiguous and open-ended nature of the draft Iraqi constitution, its approval in the October 15 referendum would only mark the start of much more hard work to establish a functional, peaceful and united Iraqi state …

Later this week, Iraqis will vote on a draft of a permanent constitution whose final form is still being debated. Until Tuesday of this week, it was assumed Iraqis would vote on the September 18 draft of the Constitution. On Tuesday, a few amendments were supposedly agreed upon, although the National Assembly may not approve them in time for the referendum. [Editor's note: the speaker of the Iraqi National Assembly said late Wednesday that the changes had been approved by the body, meeting with 157 of 275 members present, although no actual vote was taken.] One should bear in mind, however, that Tuesday’s amendments are few in number and generally very minor. Whether or not the amendments are approved, the constitution upon which Iraqis will vote will track in most respects the September 18 draft constitution.

As a result of the recent minor amendments, there is new hope that the Iraqi constitution will be approved by strong majorities from all Iraqi communities, including the Sunnis. Whether this is realistic is unclear. But even if this occurs, what would approval really mean? The Bush administration has suggested that approval of the draft constitution will represent a giant step towards stability. By its account, Iraqis who vote for the constitution will be signaling that they agree on common aspirations and consent to be governed by a certain type of governmental structure that will help realize their common goals.

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The administration’s view is too optimistic. In fact, the approval of the constitution this week will not signal the presence of a common vision for Iraq and it could not, by itself, lead to the formation of a stable, integrated state. This is for two interrelated reasons. First, whether or not Tuesday’s proposed amendments are adopted, the constitution that Iraqis vote on will fail to resolve many of the most basic questions about what the Iraqi state will look like. Second, although it pays lip service to the importance of unity, the constitution may permit regions effectively to opt out of the Iraqi union. It allows regions a right to autonomy, and the degree of autonomy that is permitted is not entirely clear. Indeed, some provisions could be interpreted broadly—so broadly that regions could assert a right to operate virtually as independent states. In short, once this constitution is approved, Iraqis will still be faced with the challenge of coming up with mutually acceptable answers to enormously divisive questions that the constitution leaves open. Until they do, Iraq is likely to remain unstable. And if they do not succeed quickly, the constitution may itself provide disgruntled regions with a road map to virtual secession.

Let us begin by discussing the ambiguity of crucial constitutional provisions. The constitution’s drafting process was deeply flawed.[1] Among other problems, the constitutional drafting committee worked under unreasonable time pressure. The draft constitution submitted to the Transitional National Assembly on August 28 left some of the most basic and divisive issues about the nature of the state unresolved. Amendments made on September 18 and those tentatively agreed on Tuesday have not resolved many of the ambiguities about the shape of the new Iraqi state—indeed, they may have exacerbated some of them. Obviously, any constitution will inevitably contain important ambiguities, and these are rarely fatal. On deeply divisive issues, however, this constitution contains more than the usual vagueness and internal tension.

For example, the constitution leaves open the question of whether Iraq should be a unitary state containing an autonomous Kurdish region or should instead be a federation of many autonomous regions. This was a source of sharp disagreement during the drafting process, and the constitutional drafting committee could not settle this issue. The constitution thus leaves this issue to be resolved jointly by parliament and regional elites. It provides that at the outset Iraq will be a unitary state with one autonomous Kurdish region in the North. At the same time, the constitution instructs the Iraqi parliament to enact a law setting procedures by which residents of provinces outside Kurdistan can choose to join Kurdistan or, in the alternative, to form new autonomous regions.

Given the confusion in the document about whether Iraq will be a federation, it is perhaps not surprising that the constitution does not specify how autonomous a region is really permitted to be. The extent of federal power to supersede regional legislation is deeply ambiguous.[2] More important, it is unclear whether the Supreme Federal Court has the authority to exercise constitutional review of state legislation. (This is a necessary power if the national courts are to ensure that all Iraqi laws conform—as the constitution formally requires—to common Iraqi understandings of human rights and Islamic law.).[3]

Notwithstanding the amendments proposed on Tuesday, the constitution that Iraqis vote on will fail to resolve countless other crucial issues. For example, it leaves to future resolution (mostly by parliamentary legislation) questions about the civil and political rights Iraqi citizens should enjoy,[4] the degree to which the judiciary should have effective guarantees of independence,[5] and the distribution of oil revenues in the country.[6]

Iraqis who vote for a constitution that leaves so much open cannot really be said to be approving a particular vision of the state. They are merely voting to begin the process by which a representative body will try to develop a shared vision of the state. What will Iraqis be able to do under the constitution if (1) no consensus can be reached and (2) a parliamentary maj
ority begins to shape Iraq in a way that others find intolerable?

The constitution does not permit secession. Indeed, if Tuesday’s amendments are approved in time for the referendum, the constitution will contain strong language stressing the unity of Iraq. Nevertheless, one might want to ask what the constitution means by unity. In fact, the constitution allows citizens in a particular part of the country to vote to organize themselves into an autonomous region. Furthermore, as noted already, it is possible to interpret this right to autonomy very broadly. Indeed, one can plausibly read the constitution to permit regions vast power to ignore national legislation or policy. Regions can also assert some degree of control over natural resources in their region and over customs collection at their borders. More striking still, the constitution empowers regions to take steps that would help them fight, if necessary, for their effective independence. It allows regions to maintain total control over regional militias.[7] Furthermore, regions may establish offices in national Iraqi embassies and consulates around the world. Should tensions arise between the national government and a particular region, these offices could enable de facto diplomatic relations between the breakaway region and sympathizers in foreign nations.[8]

At the end of this week, Iraqis will probably vote to approve a constitution that tracks in most respects the September 18 draft constitution. We should hope that they do so enthusiastically and overwhelmingly. It is always good when people with guns vote to keep talking about how to live together peacefully. At the same time, we should be realistic about the implications of approval. Approval of this constitution is not, by itself, likely to stabilize Iraq. Contrary to the most optimistic assertions, the new Iraqi constitution will not provide the blueprints for a functional, peaceful and integrated Iraqi state. It will provide only a starting point for complex discussions about whether such a state is really possible and what it might look like. Furthermore, it will give disgruntled regions a plausible claim to radical autonomy. By approving the new constitution, the Iraqis will be agreeing to continue upon a difficult attempt to forge a common vision for a future together. For quite some time, however, the possibility of a de facto partition may remain very real.

Notes

1. For well-informed descriptions of the process and trenchant critiques, see the commentary by Nathan Brown at the Carnegie Endowment for Peace and the International Crisis Group’s report on the process.

2. Here and in subsequent notes, I will still have to cite the September 18 draft. To the best of my knowledge, none of the articles that I discuss here are expected to be amended. Nevertheless, readers should bear in mind that if Tuesday’s proposed amendments are formally approved, the numbering of articles may change. In the September 18 draft of the constitution, Article 107 identifies the limited areas of governance that lie in the “exclusive” control of the national government. Article 111 clarifies that national government must regulate these areas and, more important, that national legislation in this area will trump any inconsistent regional legislation. It also provides that in areas outside the national government’s exclusive jurisdiction, regional legislation would trump national legislation. To avoid doubt, Article 117 adds that, except for laws that fall within the areas of exclusive federal control, the regions have the right to ignore any federal legislation that conflicts with regional legislation. Given the stakes involved, the description of exclusive powers is susceptible to variant readings, some expansive and some very narrow. For example, the national government’s power to “regulat[e] commercial policy across regional and governate boundaries” seems to be modeled on the commerce clause of the U.S. constitution—a provision that has been interpreted in very different ways over the years.

3. The September 18 draft of the Iraqi constitution contained an Article 2 which included a provision that (1) requires all laws in Iraq to be consistent with certain ill-defined Islamic legal norms and (2) guarantees that all laws in Iraq shall respect any human rights norms that are guaranteed by the constitution. It is not entirely clear that the federal courts have the authority both to establish the meaning of these provisions and to ensure that regional governments respect them. A textual argument could be made either way. Important constituencies in Iraq, however, believe that the constitution must be read to preclude review. Illuminating in this respect are the comments made at the United States Institute for Peace by Peter Galbraith, a former U.S. diplomat who served as an adviser to the Kurds during the constitutional drafting process. Galbraith apparently told an audience that during the negotiations, people could not agree on whether the federal courts should create a unified interpretation of Islamic law or human rights and force all regions to abide by them or whether, instead, regions should interpret the constitutional command for themselves. He was paraphrased as saying that “the [Supreme Federal] Court was stripped of its power to review regional legislation. As such, the concern for rights may lie beyond the scope of the federal court. In a patriarchal society, the federal constitutional guarantee of an individual’s right to choose the application of civil or religious personal status law is nullified; moreover, what is written in the federal constitution will be irrelevant to regions that have the right to determine their own legislative framework.” See the report on the USIP website.

4. With respect to important rights, the September 18 draft states that parliament has the right to regulate (and thus to define) the nature of the right. See for example, Articles 36-38.

5. The September 18 draft constitution provides woefully few meaningful protections for judicial independence. Although several provisions describe judicial institutions as independence, Articles 84-98 give the parliament discretionary powers over the structure of the federal courts, their procedures, the manner of nominating judges, the procedures for judicial discipline (and the reasons for disciplining them) and the staffing to be resolved by parliamentary legislation.

6. Article 109 of the September 18 draft addresses the distribution of oil revenues. It provides that the allotments will established by parliament in consultation with regional or governate-level governments, as appropriate. Revenues from existing fields are to be distributed evenly to the various regions of the country. But the parliament and regions can adjust this scheme, as they feel appropriate, to compensate regions that have suffered under previous regimes. In other words, the Kurds and Shi`a could strike a parliamentary deal to keep oil revenues from current fields for themselves as compensation for their suffering under Saddam Hussein’s regime. The constitution is, if anything, even more open-ended.

7. Article 107 of the September 18 draft of the constitution places both the national army and “national security policy” within the exclusive control of the federal government. However, Article 117 explicitly permits regions to establish not just “police” but also “security forces.” Regions such as Kurdistan will almost surely interpret this to mean that
they can establish heavily armed military units. In the short term, some regional militias—particularly the battle tested militias that would be under the control of the Kurdish government would probably be more effective than many units of the national Iraqi army.

8. In a further sign that regions can have a role in policing borders and can exercise other functions normally associated with a national government, regions have an unusual, if ill-defined, right to exercise joint control with the national government over customs revenues, according to Article 110 of the September 18 draft of the constitution.

Clark Lombardi is a professor at the University of Washington School of Law specializing in Islamic law.
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