Iraqi Constitution Birthing Pains II
Posted by Dan Draney on August 21, 2005
OpinionJournal just posted an excellent article on the negotiations toward an Iraqi constitution. See our previous post on this topic. The article is by Bartle Breese Bull (poor guy didn’t get one decent name in three), and he is optimistic about the constitutional process. The key thing to watch for women’s and minority rights is how the constitution will manage the clash between competing values:
“For this reason, it is the new draft’s language about Iraq’s high courts that counts most as we assess Islam’s proposed role in the country’s legal affairs. Who appoints the judges on the highest court? Who fires them? What are the powers of the bench vis-à-vis the executive and judiciary branches? Constitutions, like holy books, are about interpretation, and Americans and Iranians alike know that their rights, or at any rate their freedoms, can hinge on the opinion of a handful of bewigged sages.
The matter of federalism is also not as simple, or as vexed, as it looks. Iraq is already a federal country, de facto and de jure. Iraqi Kurdistan is already autonomous, and the Shiite south, east and center represent 65% of the population. When push comes to shove and the time for rhetoric has passed, Iraq’s Sunni leadership, such as it is, is unlikely to agree with Western critics of Iraqi democracy that a return to the centralized nightmare is practicable. For centuries under the Ottomans, Iraq existed relatively harmoniously in a federal form, with the three vilayets of Basra, Baghdad and Mosul (which was mostly composed of what is now Iraqi Kurdistan) under the loose administration of the Pashalik of Baghdad. That is how it is now, and it will not change by Monday, when the final document is due.
History and current realities aside, the federal question in Iraq is subject to two other truths that ultimately will deliver compromise from the Sunni Arabs. Both are overlooked in the current analysis. The first is the fact that if the current process fails to deliver a new constitution–either because a new draft does not emerge, or because it is rejected in October–then it is the current constitution, the TAL, that will be the law of the land. And the TAL, which in terms of representative genesis and U.N. approbation is probably the most legitimate constitution in the Middle East, explicitly states that Iraq is ‘republican, federal, democratic and pluralistic.’ It goes on to refer to the ‘federal’ nature of the state 26 times and to say, ‘Any group of no more than three governorates … shall have the right to form regions from amongst themselves.’ So the Sunni Arabs or any other group that blocks the desires of Kurds and many Shiites for a federal system in the new constitution will instead get the same result from the current one.”