Iraq To Hold Vote on Draft Constitution
Sunni Leaders Say They Reject The Charter

Dr. Nathan Brown
Senior Associate, Democracy and Rule of Law Project, Carnegie Endowment for International Peace
Wednesday, October 12, 2005 10:30 AM

Dr. Nathan Brown , senior associate with the Democracy and Rule of Law Project at the Carnegie Endowment for International Peace, was online Wednesday, Oct. 12, at 10:30 a.m. ET to discuss the upcoming vote on Iraq's draft constitution, the objections of Sunnis and the future of the charter.

Read Brown's recent publication: The Final Draft of the Iraqi Constitution: Analysis and Commentary.

The transcript follows.

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Salt Lake City, Utah: Could you explain how exactly the Iraqis are planning to decide the status of Kirkuk? Will it be by referendum, and if so how will it be determined who counts as a Kirkuk resident?

Nathan Brown: Tough question. There were provisions in Iraq's interim constitution to decide Kirkuk, but only after the population movements forced by the old regime have been redressed. Those provisions have never been implemented. The permanent constitution simply reiterates the interim constitution's provisions. But it's not clear if that can be done easily. So I would expect conflict over this as soon as the constitution goes into effect (assuming it is ratified).

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Wheaton, Md.: Once Iraq has an official government, will they establish normal relations with Israel? If not, how will Iraq be different from its terrorist-supporting neighbors?

Nathan Brown: I think that relations with Israel are unlikely. there is simply little support for that among most of the major Iraqi political forces. The Kurdish regional government may be more friendly, but it is unlikely to select this as an issue to push at the national level.

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Oslo, Norway: Why is Iraq, and Arabs in general, so opposed to the Kurds having an independent state? These same governments demand Israel create a new state within her borders for the Arab minority but refuse to do the same for minorities within their own borders.

Nathan Brown: I think most countries would be very uneasy to see a section secede; peaceful secessions are not unknown (Singapore from Malaysia), but they are rare. But I think most political forces in Iraq recognize that a significant level of Kurdish autonomy is inevitable. Over the long run, I would not be surprised to see Kurds pushing for full independence and perhaps over time the rest of the Iraqi population will come to accept that. But this would depend on a successful border demarcation, which is going to be very difficult.

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Alexandria, Va.: Several weeks ago, an English and Arabic copy of the Iraqi Constitution appeared on line in the Iraqi newspaper AL Mendhar. The Arabic constitution had 139 Articles, the English version 153 articles. The article(English version 151) relative to women's participation was conspicuously absent from the Arabic version.

Article (151): A proportion of no less than 25 percent of the seats in the Council of Representatives is specified for the participation of women.

The questions are,

i.where can I get a copy of the online Arabic version of the constitution being voted on

ii. Was the omission of article 151 deliberate in an attempt to have two versions of the constitutions, one to appeal to American interests and another to appeal to Arab interests. A form of bait and switch.

Nathan Brown: Good question! There are many drafts floating around. And the text is being amended up to this very minute! An Arabic version has been published on a couple Web sites (that of the Iraq Foundation and also at http://www.niqash.org/). This would be the version circulated to Iraqi voters. But, as I say, changes are still being made. Regarding the article on women's participation--fixing it at 1/4 of the parliament--it is still in the draft

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New York, N.Y.: There are so many vagaries in the draft - compromise language, platitudes, etc, and it sets aside so many fundamental issues. In our own history, it seems to me, our constitution has served us very well in the areas where it's very specific (the bill of rights, the bicameral legislature, etc), but not so well in the areas where it's vague - the most obvious example being slavery, which it implicitly blessed, but whose future it declined to decide. Are there reasons to think Iraq's experience might be different? Do you think the vagueness of the draft is more likely to be a starting point for unity and democracy - or for resentment and discord?

Nathan Brown: It is not uncommon for constitutions to operate at the level of general principles and structures. After all, most questions should be settled through normal politics, not setting them in stone in a constitutional text. But I agree that the Iraqi text is problematically vague--it sidesteps many of the key issues and even leaves some fundamental structures (like the upper house of the parliament) almost completely undefined. I think vagueness will be a problem for some but not for others. Anybody who controls the parliament, for instance, will be in a good position to fill in the gaps. I think that is one of the reasons the Shi`i parties--who anticipate being in the majority--didn't mind the vagueness at all.

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Ringwood, N.J.: It seems to me that the Federalism issue is so basic that I don't see how the possibility of amending the constitution in the future will ultimately satisfy the Sunnis who face the prospect of the two oil regions being overseen by the Kurds in the north and the Shiites in the South with the Sunnis pressed in the middle without oil beneath their land. The Sunnis may deserve this fate, but I don't see how this compromise answers their concerns because the amendment process will likely be controlled by the Shiites and the Kurds. Yes, there now could be amendments passed down the road to satisfy the Sunnis, but why would the Sunnis believe that the Kurds and the Shiites will support these amendments? (And wouldn't that support be necessary?)

Nathan Brown: Yes, I think you've hit the main difficulty with the amendment process. If today's news reports are accurate, there will be an opportunity for revision quite soon--a commission is to be established to recommend changes. But if the Kurdish parties have an effective veto--and I think they will--it may only be possible to tinker with the provisions of the permanent constitution. And some Shi`i parties have gotten very interested in forming decentralized regions as well. I think that it will be difficult for the Sunnis or for the central government to stop this process, even if this commission is formed.

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Charleston, S.C.: (1) How realistic is it for Sunnis to expect to be able to amend the constitution? It seems that even if they turn out in record numbers to elect Sunni representatives in the January elections, they would not have enough members in the parliament to be effective in such an effort.

(2) How can the last-minute changes to the constitution be "legal" if the current parliament does not vote to approve them? What is the threshold (votes needed) for approval?

Nathan Brown: Both good questions; I just answered the first.

On the second question...well, the parliament never voted on the earlier drafts, either! They were read in the parliament but no vote was taken. The country's interim constitution was very clear--the parliament was supposed to "write" the permanent constitution and submit it to voters. In fact, the parliament has been on the margins of the entire process.

Is this legal? Probably not. Some Sunni leaders did complain about this. But they did not really push the issue since they are not represented in the parliament and they soon got involved themselves in efforts to make changes in the draft. So the legal problems may not matter very much, especially if the constitution is approved in the referendum on Saturday.

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Detroit, Mich.: Even if these changes in the constitutional process stem a walkout, it seems highly unlikely that the Sunnis will have the political horsepower to stop the eventual splitup of the country along sectarian lines. More to the point, they will be unable to stop being divested of all of their oil wealth.

What is their motivation to go with the program?

Nathan Brown: It is clear that the constitution lays the groundwork for fairly full Kurdish autonomy, covering 3 of Iraq's 18 provinces. Whether the other 15 provinces together depends largely on what the Shi`i leadership decides to do. Right now they seem divided. I think you are right that the Sunni population will be unable to resist this process, at least through legal means. And the insurgency may make Shi`i separatist feelings stronger, not weaker.

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New York, N.Y.: It seems as if there are many contradictions within the constitution, specifically about Islam's role.

Will these contradictions cause a problem as soon as these contradictions come to the Iraqi courts via lawsuits?

Nathan Brown: I think "contradictions" is too strong a term. The Iraqi constitution certainly pulls in some different directions, but then so do most constitutions. The question--as you suggest--then becomes who is authorized to settle which direction the constitution takes?

The primary body determining this should be the parliament. It will write the laws that will give the very vague provisions real meaning. The current Iraqi parliament is a very weak body, however. Most of the key decisions are made by a small group of political leaders and then presented to the parliament for a formal vote.

The courts could play a role as well. There is to be a "Supreme Federal Court" to settle constitutional issues (as well as disputes between the central government and the regional governments). But we know very little about this court--most questions regarding its composition and operation have been left to parliament to decide. The only things we know is that it can include experts in Islamic jurisprudence as well as civil judges and lawyers. And we know that the law establishing it must be passed by 2/3 of the parliament--in order to ensure that it is a body that is constructed in a consensual manner.

I would say that if Iraqis get to the point that they are settling their differences through lawsuits, great progress will have been made.

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Washington, D.C.: What value was there in ousting Saddam Hussein with an invasion if the new government will not recognize Israel and add to Middle East stability? What a waste of money and lives. All that effort and Iraq will remain a hostile neighbor to America's only ally in the region.

Nathan Brown: I think that many, many criticisms can be made of the war, but I'm dubious about this one. Gaining Iraqi recognition of the state of Israel was never a stated goal for the war, and I think most Israelis I know would be shocked if the US launched a series of invasions in order to force the establishment of Israeli embassies.

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Follow up on Detroit: It appears then that there is simply no motivation for the Sunnis to go with the program. The Constitutional process then is just window dressing that provides a scapegoat for an inevitable civil war.

Nathan Brown: I think civil war is a strong possibility--and in some ways it can said to have begun--but I think there are other possibilities as well. Here is one--if Sunnis participate in significant numbers in the December elections for parliament, they might find themselves back in the political game in Iraq (especially if the parliament is very divided and the Sunni parties can work to seem to be holding the balance). I do share your concern that the constitution did not provide the opportunity for forming a national consensus that many would have hoped. And many bad outcomes are possible. But nothing is inevitable quite yet.

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Rochester, N.Y.: Dr. Brown--

Can you give us an idea of the political calculations on each side of the compromise announced today? Do the Sunnis really believe that they will have enough strength in a new parliament to get changes to the constitution approved and put out for referendum? Do the Kurds think it in their interest because the Sunnis will have to deal with them if they want changes in the constitution? What do the Shiites gain?

Nathan Brown: We have not yet seen any text, so that it is impossible to say with any precision what the new changes are. But the basic outline is clear. There will be some symbolic concessions (such as insuring that Arabic as well as Kurdish is an official language in Kurdish areas) as well as some toning down of de-Ba`thification. But the real question is how possible it will be to revise the constitution. There is talk, as I said in an earlier answer, of forming a commission to draft changes, but it is not clear if that commission will really be able to solve issues that have not been solved to date.

So why did the various parties agree to this? Well, the Shia and Kurds give up very little--and came under enormous American pressure. For the Sunni parties, they may gain just enough to justify participating in the political system. For some Sunni leaders, the focus has been far less on the constitution than on the parliamentary elections in December. These leaders recognize that boycotting the January elections left them out in the cold as far as the parliament and constitutional process have been concerned, and they've been anxious to get back in.

How many Sunni leaders believe this--and how many followers they have--is an open question.

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Helsinki, Finland: What do you think of the Bush administration's tactic of quelling the insurgency by forcing a democratic process? Do you think it will work?

So far, things do not look very promising, as the democracy project has gone forward, the insurgency has in fact grown in strength.

Nathan Brown: I do not think the Bush Administration has a lot of options right now, and this political solution was as good a bet as any other. But I think that the Bush Administration rushed the process too much with the result that it became impossible to reach a consensus. I'm not sure that a consensus would have been possible with a slower clock. But trying to write a constitution in a couple weeks that had wide buy-in was a chimera.

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London, U.K.: Dear Dr. Brown, I feel uneasy about this constitution; you just simply cannot compromise democracy with theocracy. A diverse culture requires a modern constitution, not one with which clearly dictates Islam as the main source of law of the country. It seems that we are heading towards an Islamic Republic of Iraq, which may give birth to the country's future rule of law. How would you assess this likely trend?

Regards.

Nathan Brown: I think you can combine democracy with all sorts of things--not necessarily with a full-blown theocracy, but certainly with a government that has a fairly strong religious orientation. The provision on Islamic law that you refer to may be more of a symbolic step than anything else. A lot depends on how the parliament (and perhaps the courts) approach the issue. I think that even the most ambitious religious Shi`i politicians aim not for a recreation of the Islamic Republic of Iran but for a political system in which they encourage--and occasionally enforce--Islamic practice through the ballot box. Earlier generations of Irish and Italians may have found such a system familiar--not the solution I would vote for, but one that is arguably democratic.

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New York, N.Y.: We keep hearing how this constitutional process is like our 18th century endeavor.

How valid is that comparison? I don't remember lots of fighting between the different factions in the colonies, for instance, but maybe I slept through that part of history class.

Nathan Brown: Well, I was awake when the teacher was talking and I find the comparison a little strained.

It's not that the American experience is totally irrelevant; it's just that there are other cases that more closely resembles the Iraqi situation. South Africa and the areas that made up Yugoslavia come to mind.

And such cases show how difficult it can be to write a constitution at a time when the fundamental political divisions are worsening and being fought out in sometimes horribly violent ways.

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Albany, N.Y.: How can they simply change the proposed constitution a few days before the vote after so many copies of the old one have been distributed and some people may not even be aware of the changes

Nathan Brown: Who is going to stop them--especially if the main political leaders agree?

I think this is an ugly way to write a constitution--and highlights the flaws with emphasizing artificial deadlines as I mentioned earlier. But I think they will do it. And if the alternative is ramming the unamended text down the throats of parts of the population that might not be all bad. But it sure looks strange.

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New Orleans, La.: Several political analysts commented before the war that Iraq was different then most Arab nations in that the people were more nationalistic and less tribal. Now all the talk is of Shiites, Kurds and Sunnis. Is there any chance that political parties could emerge that are cross-tribal?

Nathan Brown: I think one of the most depressing features of Iraqi politics is that it has become more rather than less sectarian.

Divisions between Sunnis and Shi`a existed but they were not always highly politicized. Many political parties--such as the Communists and the Ba`th--crossed this sectarian divide.

Now much of that seems to have been lost. Iraqis who never spoke of Sunnis and Shi`a in political terms now sometimes focus on little else.

I don't think this situation is inevitable or permanent, but I don't see any mechanism on the horizon to overcome it.

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Philadelphia, Pa.: Terrorists and anti-government militants are flocking into Iraq. How can a Constitution hold together a country with such a large minority that seek to destroy it, regardless?

Nathan Brown: It will be difficult. The hope was that the process of writing a constitution would wean the constituency away from the insurgency and towards parties that are willing to participate. It wasn't a bad idea, but I don't think it has really worked.

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On Civil War: It also appears that the war will not/is not limited to the immediate confines of Iraq. The Sunnis in Jordan, Saudi Arabia, and Kuwait fought a 10 year proxy war with the Shiites of Persia through their support of Saddam Hussein. As Prince Faisel put it, we seem to be handing the country over to the self-same Persians (SCIRI and the Badr Brigades have their homes in Iran).

What possible optimistic outcome can come from this?

Nathan Brown: I think all regional states are very concerned by what is going on. There has been some attempt to coordinate among them, but they have not gotten very far. Iraqis are badly divided about who their friends are, which makes it much more difficult for neighboring states to play a constructive role.

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Nathan Brown: There have been a lot of great and very well-informed questions. It's clear that people have been paying very close attention. I expect the constitution to pass on Saturday, but even if it does many critical questions remain to be answered. There will be much to debate in the future.

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