The bid to rewrite Iraq’s 2005 constitution has been surprisingly accepted and promoted by political elites, some of whom were involved in its original drafting. However, their positions are not as aligned with those of the protesters as they may appear to be. There is a belief within the protest movement that the constitution’s lack of legitimacy has resulted in the flawed political system and that, by extension, an amendment to this constitution would be the solution to alleviate many grievances. Perhaps as a way to deflect criticism, some Islamist political figures and leaders of paramilitary groups have also spoken out against the constitution’s flaws. Although their motivations are not aligned with those of the protesters, political figures’ support for constitutional change represents an important opportunity in the ongoing protests.
Here’s why people are demanding a rewrite of the constitution and why learning the right lessons from the previous constitution-drafting process is important.
There is no doubt that the Iraqi constitution is flawed.
The process under which it was drafted and put into effect, for one, was rushed and at times not entirely transparent. It was seen to be heavily influenced by foreign actors, and even the 2005 referendum on ratification was marred by reports of fraud and ballot stuffing. Because of this, the constitution was bound to be seen as lacking legitimacy until a rewrite with real popular backing and support is produced.
There are also problems specific to the text of the constitution. This is a result of the bargaining among the various stakeholders that preceded its adoption in 2005. A number of ambiguous articles and vague texts have contributed to many of the political conflicts witnessed since. For example, arguments over the interpretation of Articles 112 and 140 regarding oil rights and the federal status of Kirkuk, respectively, have been a constant thorn in relations between the central government and the Iraqi region of Kurdistan. Arguably as a result, Kirkuk, an ethnically and religiously diverse oil-producing province, has had an unclear status for years. Article 61 has arguably severely diminished the Council of Representatives’ ability to legislate. And, most notably, the definition of the “largest bloc” under Article 76 has led the system into constitutional crises during almost every election.
Though flawed, it can work.
Although the text of the constitution may present a problem, the bigger issue is the lack of constitutionalism among the political elite. After all, Britain’s unwritten constitution and the United States’ sometimes ambiguously worded one are nevertheless made effective through constitutionalism. Both the Council of Representatives (i.e., parliament) and the executive branch have, in various instances, ignored or sidelined the Iraqi constitution.
With regards to Kirkuk, for example, the Council of Representatives ignored the Dec. 31, 2007, deadline of reaching a settlement for designating its status as either part of the Kurdistan region or a province under the auspices of the central government. In 2018, political parties designated a nominee for prime minister by consensus with no reference to Article 76 and without establishing which bloc in parliament is the “largest,” having insisted on making such a determination in 2010.
There are also many constitutional articles that require the passing of a law to further define rights, obligations and procedures, and those have been glossed over for more than a decade by successive Councils of Representatives. Most significantly from a constitutional point of view, the Federal Supreme Court, which would be tasked with interpreting the constitution and conducting a judicial review (to determine the constitutionality of laws and acts of the government), was not established in accordance with Article 92, which puts under serious doubt the authority of the current court to play such a role.
Many are demanding that this overhaul of the constitution happen quickly. The Council of Representatives voted to amend the constitution within a period no longer than four months. In addition to being insufficient time for a thorough constitutional amendment process, this may not satisfy the constitutionally mandated procedure for such amendment, which is laid out in the final chapter of the constitution.
Furthermore, the same delegitimizing factors that existed in forming the constitution in 2005 — being rushed and drafted under foreign influence — arguably still exist in Iraq.
So what will it take to effectively change the constitution?
The current approach being considered by the political elite to rewrite or amend the constitution may not only fail to meet the constitutional requirements, it also may not take into consideration the importance of a serious and transparent public consultation to address the concerns of the people. It also does not grapple with tough political questions regarding the special status of the Kurdistan region and the complexities of federalism and center-periphery relations overall.
Rushed amendments and referendums run the risk of creating another constitution with questionable legitimacy. Amending and rewriting the constitution in a way that reflects the national consensus meaningfully, on the other hand, would signal to the protesters that their voices are being heard. Through the protest movement, the Iraqi public has made it clear they are ready to share their beliefs about the values and ideals that should underpin the constitution.
Iraqis have an opportunity to capitalize on the nationalistic energy of the moment. The test is if they will do so judiciously and transparently to reflect the “will of the people” with an adherence to the supremacy of constitutional values over short-term policy preferences.
Marsin Alshamary is a pre-doctoral research fellow with the Middle East Initiative at the Belfer Center for Science and International Affairs in the Harvard Kennedy School.
Safwan Al-Amin is an international lawyer and a graduate of the Harvard Kennedy School.