Edition 39 Volume 3 - October 27, 2005
Iraqi federalism after October 15
An incomplete constitution
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Ersin Kalaycioglu Secessionist micro-nationalisms will begin to gain credibility to the detriment of Iraqi national solidarity.
Iraq's imperfect constitution is still a victory -
Ibrahim al-Marashi The October 15 approval of Iraq's constitution should be considered a significant milestone
Pseudo-federalist vendetta -
Molly McKew Sunni fears of dissolution and domination would become less relevant inside a real federal state.
Kurdistan: from threatened entity to constituent unit -
Khaled Salih If the constitution is violated, Kurdistan will no longer be obliged to adhere to it.
An incomplete constitution
Ersin Kalaycioglu On October 15, 2005, the Iraqi people voted on the fate of their new constitution. This is not their first written constitution, though it is their first somewhat popularly composed constitution. What was most feared did not materialize, and the Sunni Arabs failed to veto the document. Now that Iraq has a federal democratic system in place, a brief analysis of its main characteristics and their potential opportunities and risks for Iraq is warranted.
Federalism requires devolution of power from the local governments, where the sovereign power of the people is assumed to be located, to the central government, and a rigid division of power that cannot be easily amended. Such a design can only work with a relatively decentralized system of government, with a solid division of power between the central and regional authorities. Students of constitutional politics argue that federalism often incorporates a written constitution and a bicameral legislature where an upper chamber protects the interests of the provinces. Finally, a federal constitutional court, which works to protect federalism against the encroachments of the center, needs to be incorporated into the written constitution.
The Iraqi constitution possesses some of the most important characteristics of federalism. First of all, it is a written constitution. It hosts a decentralized system, a bicameral legislature, and a Federal Supreme Court (FSC). Therefore, on paper it seems to meet all of the criteria of federal democracy. However, a closer examination unearths some problems with its design that may bode ill for the national solidarity and political stability of Iraq.
First, a written constitution should provide for lucid definitions of division of power between the national and local realms of authority and federal and local institutions; it should define citizenship and the like. The Iraqi constitution mainly avoids defining such issues as the division of power between the center and the periphery, Iraqi identity, the character and structure of state and regime, the distribution of resources, and Iraq's political orientation.
Second, Iraq now has a bicameral legislature. However, its composition, the powers of the deputies and the criteria of representation in the upper chamber are all left untreated in the constitution. Such issues are not only postponed indefinitely, but the lower chamber is entrusted with making the necessary decision (law) about the powers of the upper chamber (art. 63). Therefore, it is plausible to assume that Iraqi federalism will work through a weak bicameral legislature, and in practice will function as a unicameral legislature. Under these circumstances, how the power of the center can be balanced and checked without an upper chamber in the Iraqi legislature that enjoys some form of veto in regional matters remains a mystery.
Third, the Iraqi constitution establishes a Federal Supreme Court (FSC); article 90 states that the FSC will enjoy administrative and financial autonomy and consist of jurisprudents and experts on Islamic law. It will be up to two thirds of the members of the National Assembly to determine how many secular and how many Islamic judges serve on the bench of the FSC (art. 90.2). Thus a series of issues related to both federalism and secularism will be involved in the functioning of the FSC. It is not difficult to imagine the FSC becoming entangled in the issues of the rights of women and other democratic rights, rather than dealing with the powers of the center versus the periphery in Iraq.
Fourth, the Iraqi constitution declares oil as the national wealth of Iraq (art.109). Its management is put under the authority of the federal government, which is to govern the oil wealth through an independent commission of the federal state (article 104). However, if any one community such as the Shi'ites gains the upper hand, such a commission will not be perceived by the others as a fair arbiter. Hence, the distribution of national wealth will become a matter of conflict among the various political forces of the country.
Fifth, the division of power between the central and local governments seems to be less than obvious regarding taxation, energy production and the management of customs duties. Lack of cooperation and coherence in such realms is going to be costly for Iraq.
Iraq has established a territorial federalism, which is likely to reinforce homogeneity within regions and heterogeneity between them. Even formerly non-existent political entities like Turkmenistan and Uzbekistan--"homelands" to be defended against neighbors during Soviet times--suddenly became sacrosanct new nation states of Central Asia when the Soviet Union collapsed. Similar trends will emerge in Iraq as the territories of the Kurds and the Shi'ites gain new political meaning. Such a trend will increase heterogeneity throughout Iraq and render the country less integrated over time. Secessionist micro-nationalisms will begin to gain credibility to the detriment of Iraqi national solidarity. The Kurds have already begun to vie for a loose union that comes very close to a confederacy, while the Sunnis demand a closer union under a strong center. It seems highly unlikely that creating a new federal and democratic Iraqi identity will be possible any time soon.
The new Iraqi constitution seems to be a major step toward federal democracy, but with so many faults and failings much of its success depends upon the performance of the Iraqi political system and institutions, as well as international influences and pure luck.- Published 27/10/2005 © bitterlemons-international.org
Ersin Kalaycioglu is full professor of political science at Sabanci University, Istanbul, specializing in comparative politics with special emphasis on Middle Eastern and Turkish politics. Iraq's imperfect constitution is still a victory Ibrahim al-MarashiIraq, the "land of the two rivers", developed the world's first constitution millennia ago during the reign of the Babylonian leader Hammurabi. Nevertheless, even in the land that produced the first written law code, forging ahead with the task of drafting a constitution for a modern nation has proven a difficult and arduous task. The October 15 approval of Iraq's constitution should be considered a significant milestone in the country's political development since the fall of the Baath party.
Granted, the approved constitution is an imperfect and incomplete document, leaving some of the most controversial issues purposely ambiguous to be debated after Iraq's parliamentary elections in December 2005. Such imperfections resulted from a rush to complete a draft document by an August 15 deadline. Considering that drafting the constitution began in earnest in May 2005, its completion was an impressive feat.
Most Sunni Arabs who avoided partaking in the January 2005 elections, mobilized to participate in the constitutional referendum, even if to vote against the document which they perceive is against their interests. Nevertheless, their "get-out-the-no" vote indicates that some Sunni factions are willing to acknowledge and take part in Iraq's political process, a crucial step in co-opting those Sunni parties who have tacitly supported the insurgency.
The fact that 78 percent of those who voted approved the constitution is also a clean break in a region where "99.9 percent elections" function as democratic facades to legitimize incumbent rulers. Additionally, the Iraqi Election Committee's process of checking questionable votes in the Nineveh province indicates that the past era of vote-rigging in Iraq will not be tolerated.
Critics of the constitution have argued that the document will sow the seeds of Iraq's fragmentation. The charter recognizes a federal entity in the north of Iraq, which has enjoyed de-facto independence under Kurdish administration, and allows the possibility for the Arab Shi'ites to form their own state in the south of the nation. Such a scenario could leave the Arab Sunnis in control of a landlocked area, lacking in oil resources. However, such critics should keep in mind that if an ethnic or sectarian faction of Iraq's society would seek to break away from Iraq, it would do so whether or not a constitution allowed it. The constitution provides an alternative for these parties to avoid the option of complete independence and seek autonomy through a legal framework, thus keeping Iraq intact.
While the passing of the constitution proves to be a victory for the nation, there are subtle defeats for its future integrity. The constitutional debate in the run-up to the vote on October 15 revealed a troubling phenomenon in Iraq's politics--its increasing ethnic and sectarian nature. In the aftermath of the collapse of the Baathist era in Iraq, politics in this nation has shifted from a tribal clan from Tikrit that monopolized power to a plurality of competing ethnic and sectarian-based parties, as opposed to issue-based parties. While differences between various ethnic and sectarian groups have been ever-present in Iraq, these differences were never articulated in public debate, nor used as a basis to criticize others. This past tendency all but ended with the constitutional debate, where ethnic and sectarian labels proliferated in the political discourse.
The prospect of a civil war in Iraq is still a matter of debate, but a "civil war of words" has definitely emerged within this process. The violence that has gripped post-Saddam Iraq prevented the emergence of a stable political process, creating a vacuum that forced Iraqis to seek refuge, protection, and representation via their sectarian and ethnic parties. While the media has over-simplified Iraq's social divisions along the lines of Sunni, Shi'ite, and Kurd, the post-war chaos has preordained Iraq's destiny, where misperceptions are slowly becoming reality.
The second setback embodied in this document is the Arab Shi'ite political parties' call for the constitution to allow the option to form a federated entity in the south. Outside observers fear that this option will satisfy a hidden Shi'ite agenda to form a mini-Iraqi Islamic Republic based on the Iranian model. However, a more realistic explanation for the Shi'ite requests to form their own state within a state is most likely a reaction to the American failure to secure Iraq's center (the notorious "Sunni triangle") or protect Shi'ites from insurgent attacks. The Iraqi Shi'ites have seen the entire nation as theirs in the past and were unwilling to entertain such notions of dividing the country. This recent development indicates that some factions among the Shi'ite have given up on the idea of an undivided Iraq. It this trend does lead to Iraq's disintegration, it will be America's fault, not that of the constitution, for failing to secure the country and protect this community.- Published 27/10/2005 © bitterlemons-international.org
Ibrahim al-Marashi is a visiting faculty member at Sabanci University, Istanbul. Pseudo-federalist vendetta Molly McKewDespite an eleventh hour attempt to buy off Iraq's Sunnis, Anbar and Salahuddin--majority Sunni provinces--voted overwhelmingly against the new Iraqi constitution. But as much as this deal, which allows a committee to suggest constitutional amendments to the new National Assembly next year, failed to sway Sunnis, it may provide them with the loophole they need to ensure that the Iraqi constitution guarantees the rights, interests, and equality of all Iraqi citizens.
Two glaring problems outweigh any positives in the new Iraqi constitution: the system of governance is flawed, and a sense of vendetta against the Sunnis is ingrained.
At its core, the Iraqi constitution establishes an inherently unequal balance of power. The "federal" model devolves responsibility for security, services, and a comprehensive welfare state to the regional and provincial governments, while giving them no power to influence decisions made at the national level. At the center, the foundation for a potential one-party state is laid--but only if a personality emerges who can exploit it.
In the system outlined by the drafters, participation in the federation is optional. Provinces can choose whether or not to form regions with other provinces, and regions are the base unit of the federation. There is a faux-bicameral legislature, in which the powers of the "Council of Union," the federal "house" that is to balance the list-elected parliament, are to be defined by the parliament itself. Unless parliament decides that the Council of Union should be a real check to its power, there will be no direct regional representation at the federal level.
This is not a model that will bring accountability and good governance to the new Iraq, and it has done nothing to quell Sunni fears about the future. Removed from the primacy of the ruling Baath party and burdened with the stigma of the Baath's brutal reign, they are only a minority voice in Iraq left to fend for their own interests. Since the collapse of Saddam's regime, many Sunnis justly fear retribution. But there is no justice in the collective punishment meted out by the new constitution.
The Sunnis of Iraq, most of whom had little to do with the Baath regime, are on the losing end of power sharing. Worse still, they will be cut off from the only national asset Iraq currently enjoys: oil. For the measurable future, the only real income in Iraq will be oil revenue. But the future of the Iraqi state depends on the equitable distribution of oil revenues, rather than the satisfaction of a vendetta against the Sunnis for the atrocities of Baathist rule.
Oil is mentioned in three places in the constitution (Article 109 and the first and second parts of Article 110). The first clause guarantees that all Iraqis have the right to a share of oil and gas revenue; the second constructs a loophole in which the Sunni provinces can be cut out of this cycle; and the third deprives them of their right to help set future policy related to oil and gas development.
The problematic clause reads: "A quota should be defined for a specified time for affected regions that were deprived in an unfair way by the former regime or later on, in a way to ensure balanced development in different parts of the country." There can be no question that this clause is meant against the Sunnis. This one line, strengthened in Sunni eyes by the continuation of the de-Baathification Commission, reads as vendetta, executed in the name of retribution for the evils (and extensive patronage network) of Saddam.
Iraqis deserve more than a continuation of the policies of the old regime--ration lists and patronage. Without the Sunnis receiving a "fair share" of development funds from the state, the gap that already exists in the post-war period between the Sunni provinces and others will worsen, providing fodder for the insurgency.
Both of the weaknesses in the constitution perpetuate the "every sect for itself" mentality that has dominated the post-war period. Both speak to the failure of the nascent Iraqi leadership to stand up and remind the Iraqi people of their common roots. But there is a small window through which these failings may be altered before they condemn Iraq to a future of sectarian violence and repression. And the Sunnis must be diligent in pressing for these changes.
Sunni fears of dissolution and domination would become less relevant inside a real federal state where the province is the unit of power at the center rather than the ethnic and sectarian interest groups that will be perpetuated in the unchecked, list-elected parliament. Federalism should be a means of codifying the devolution of power from the center to the provinces, a guarantee that no other Saddam-like entity could ever possibly rise, and a means of protecting the rights, diversity, and powers of the provinces and minorities.
The Sunnis had cause to be displeased with the model of governance detailed in the new constitution, but the time has come to move on. That means redefining pseudo-federalism--a naked attempt to create Shi'ite and Kurdish mini-states--and pressing for genuine federalism, which values equal rights for all over the demands of a grasping majority. As the trial of Saddam Hussein moves forward and his regime's crimes are laid bare for the Iraqi people, the time has come for Iraqis to remember the perils of tyranny, and change their constitution for the better. And ironically, it is the Sunnis who must become the guardians and enforcers of representative democracy in the new constitution.- Published 27/10/2005 © bitterlemons-international.org
Molly McKew is a Middle East researcher at the American Enterprise Institute, Washington DC. Kurdistan: from threatened entity to constituent unit Khaled SalihMy close friend, a veteran politician, told me over the telephone that it was very unfortunate I couldn't be in Kurdistan on October 15, when people throughout Iraq voted for their constitution for the first time in the history of the country. Though he understood that I tried but did not manage to get there before the borders were closed 24 hours prior to the voting, my friend wanted to remind me of a conversation we had in 1989.
It was a tragic time for the people of Kurdistan. Only a few years later would the outside world learn of the scale of destruction Saddam Hussein's regime wreaked on Kurdistan. While in an Iranian refugee camp, my friend told me in a telephone conversation that "the Kurds in Iraq will have the same fate as the Armenians of Turkey and the Jews of Europe." Those who survive Saddam's genocidal attacks, he added, must either leave Kurdistan or remain under occupation until they die.
Only when Saddam Hussein invaded Kuwait and the US-led coalition threw Iraq's army out of that country could I understand the destructive nature of Saddam's regime: more than 4,000 Kurdish villages were destroyed; as many as 183,000 people disappeared in Saddam's infamous genocidal assault against the Kurds, known as Anfal (the name of a Quran verse justifying the killing and looting of infidels). Life was abandoned in the countryside; vast areas were mined; animals and people were killed if they stayed in the villages; entire villages were bombed with chemical and biological weapons; water springs, the traditional lifelines of every village in Kurdistan, were sealed; people were traumatized. The outside world was busy mediating between Saddam Hussein and Ayatollah Khomeini to stop the Iraq-Iran war.
A few years later, thanks to the no-fly zone established by the anti-Saddam coalition after 1991, Kurds went back to their region to rebuild their shattered lives, land and economy. Today Kurdistan, where the multinational forces are more than welcome, is prosperous and secure and is often called "the other Iraq". In Kurdistan people are embracing change and building their own future while cautiously watching the trial of Saddam Hussein and his immediate associates. My friend wanted me to share his joy at casting a vote rather than a bomb to determine Kurdistan's future relations with the rest of Iraq by saying yes to the draft constitution. It is a dramatic change. In the latter half of the 1980s, Kurdistan and its population were threatened with extinction. In mid-October 2005, the people of Kurdistan voted overwhelmingly in favor of a new constitution.
It is easy to understand the joy of my friend and most of Kurdistan's population regarding the content of the constitution and the outcome of the referendum: 78 percent of the votes in favor. In 1992, when the Kurdistan parliament decided that the future relationship of the region with the rest of Iraq would be on a federal basis, none could envisage that Saddam Hussein and his regime would be removed and the political system of Iraq restructured and redesigned the way we have seen since mid-2003.
With the endorsement of the constitution, Kurdistan is now a constituent unit in a federalizing Iraq with its own law-making body, government, responsibility for its own internal security, and control over any future development of its oil and gas fields. What is more, the constitution has provided a legal temporal framework for the de-Arabization of Kirkuk and other Arabized regions, a process that will be concluded by the end of 2007 with a referendum over their final status. In addition, Kurdistan's laws and decisions are legalized, providing a retroactive acceptance of the region's existence and legal framework. If any constitutional amendment is decided by the Iraqi parliament due to be elected in mid-December 2005, it will require Kurdistan's consent if proposed changes have any effect on Kurdistan and its authority.
Most crucially of all, any future movement of Iraq's army into Kurdistan is conditioned on the consent of Kurdistan's president and parliament. Psychologically, in view of Kurdistan's past experience with the Iraqi army and successive governments, this is the most important achievement in restructuring and federalizing Iraq. If the rest of Iraq chooses an Islamic orientation in terms of political institutions and individual, women's and minority rights, Kurdistan can still keep its emerging democratic and secular trends by opting out in those specific cases or enacting more protective and liberal laws in the Kurdistan parliament.
In the coming months and years, the power balance will shift from constitution-writing to interpretation and practical institution-building. This will require careful consideration about fundamental choices. As the current constitution makes clear, the purpose of this fundamental law is to keep the country together on the basis of a voluntary union. If the constitution is violated, Kurdistan will no longer be obliged to adhere to it. That is why the coming months and years will be decisive in Iraq in terms of the powers of the government, limitations on its institutions, and the way government organizations operate. A functioning, federal and democratic Iraq does not need to pose any threat to Kurdistan. But a failed or militarized Iraq will.- Published 27/10/2005 © bitterlemons-international.org
Khaled Salih is an independent analyst and consultant based in the Kurdistan Region in Iraq. He is former senior advisor to the prime minister of the Kurdistan Regional Government.
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