A new Iraqi constitution was ratified by a referendum two years ago, on October 15, 2005. Eager to give the impression of progress against a backdrop of relentless violence and devastation, US officials trumpeted the event as a key step in planting democracy in the Arab world. Ever the dissembler, President Bush boasted on the occasion: "It’s been amazing, what’s happened in Iraq, when you really think about it. By any standard or precedent of history, Iraq has made incredible political progress — from tyranny to … the ratification of a constitution in the space of 2½ years."
The reality was far less rosy. The draft constitution had been single-handedly pushed through — more bluntly, shoved down Iraqi throats — by US ambassador Zalmay Khalilzad, sticking to an American-dictated timetable despite repeated Iraqi objections and requests for delays. Commentators in the mainstream media did not see anything wrong in Khalilzad’s strong-armed tactics, and had only praise for his "working as hard, or harder, than any Iraqi politician to forge an agreement," routinely blaming Iraqis for being unappreciative of their colonial taskmaster’s efforts.
The draft constitution submitted for ratification was in fact an unfinished document, which was left deliberately ambiguous in many of its sections because of dissension inside and outside the Iraqi Constitutional Committee (ICC) responsible for drafting it. (The ICC was appointed in May 2005 by the Transitional National Assembly that had been elected in January 2005.) Many of the ambiguities in question concerned two crucially important issues, federalism and the disposition of natural resources. Just as significant as these ambiguities were the omissions concerning the economy, workers’ rights, women’s rights and individual rights. In fact, the document submitted to the October 2005 referendum had been eviscerated of all its (modestly) progressive provisions, as we explain later.
Rejecting any postponement of the referendum date, Khalilzad brokered a compromise stipulating that the parliament to be elected pursuant to ratification of the new constitution would appoint a Constitution Review Committee (CRC) to continue the earlier ICC’s work and finalize the document. Amendments subsequently proposed by the CRC would become officially part of the constitution, but only after confirmation by a follow-up referendum.
The first post-2003 Parliament was elected on December 15, 2005, two months after ratification of the new constitution, for a four-year term. After considerable wrangling for several months, the Parliament appointed the CRC in September 2006, as stipulated by Khalilzad’s compromise. The CRC was given a four-month mandate, later extended to one year, to produce final amendments. Though now past the one-year deadline, the CRC has yet to propose a list of amendments — or even a single amendment — to the Parliament for a follow-up referendum. The delays were not only due to bureaucratic hassles but, as we indicate later, to difficulties of reining in an increasingly rebellious Parliament.
The struggle for Iraq’s constitution is therefore still on, notwithstanding Mr. Bush’s premature boast (not the first or last in this war!), and the final outcome is yet to be decided. We review the history that shaped the constitutional document of October 2005 and assess the contending forces in the struggle ahead.
The Bremer Laws and the Transitional Administrative Law
The Iraqi Constitutional Committee did not start its work from scratch. From the immediate post-2003 period, two separate documents heavily weighed on its proceedings. The first document was a set of 12 Regulations and 100 Orders issued by the Coalition Provisional Authority headed by L. Paul Bremer (May 2003-June 2004). These so-called Bremer Laws were formulated to enforce an unabashedly neo-conservative agenda. The parts regarding the economy were draconian measures that emphasized protection of foreign investors, full repatriation of profits outside Iraq, a privatized banking sector, a low flat-rate tax, a lower base industrial wage, immunity for foreign contractors from Iraq’s laws, no tariffs, no ownership restrictions, and other similar measures — a complete menu for plundering with total impunity.
The second relevant document from the post-2003 period was the Transitional Administrative Law (TAL), which was drafted by the Iraqi Governing Council created by the US and operating under Bremer’s authority. The TAL was a temporary constitution signed in March 2004, entering into effect at the end of June 2004, and superseded by the permanent constitution ratified by the October 2005 referendum. The TAL confirmed and complemented the Bremer Laws spelling out, among other things, steps in preparation for the adoption of a permanent constitution.
US officials expected, and sometimes explicitly enjoined, their Iraqi allies to adopt what they considered all the gains secured by the Bremer Laws and the TAL. The drafting process seemed in good and compliant hands, as Iraqi appointees assured their American handlers that the ICC would take these two documents as "their basic going-ahead point," the template for the new constitution and government to follow. In fact, the process was not all smooth. In addition to fundamental differences between factions within the ICC, some Iraqi participants apparently had the effrontery in the early stages to propose ideas contradicting the Bremer Laws, before vigorous American intervention forced them back into line. More on this below.
If the Bremer Laws and the TAL were the ICC’s "basic going-ahead point," then it stood to reason there would be no appeal to precedents from Iraq’s pre-2003 constitutional experience. Indeed, there was no reference in the public record of the ICC deliberations to any of Iraq’s pre-2003 constitutional texts. This is at least confirmed by inspecting available commentaries on the ICC debates. This is not surprising, given that the American plan was to rebuild Iraq’s state from scratch, but also instructive in indicating how they intended to rebuild it. Many of the pre-2003 constitutional texts preceded the period of Saddam Hussein’s Baath regime, some dating back to the founding of the modern state after the First World War, and on several important issues were more advanced than the draft constitution ratified by the October 2005 referendum — including the issue of women’s rights, and issues related to the role of religion in regulating personal and individual rights.
The Contending Forces
On the Iraqi side, there are two camps, roughly divided into "separatists" and "nationalists," and then there is the American side playing one camp against the other, currently tilting in favor of the separatists for its own reasons.
In a series of well-documented articles by Raed Jarrar and Joshua Holland, the two Iraqi camps are defined thus: "Loosely speaking, separatists favor a ‘soft partition’ of Iraq into at least three zones with strong regional governments, similar to the semi-autonomous Kurdish ‘state’ in northern Iraq. … Nationalists favor a strong technocratic central government in Baghdad that is not based on sectarian voting blocs."
Underlying this division are powerful conflicting interests. Separatists tend to "favor privatizing Iraq’s massive energy reserves and ceding substantial control of the country’s oil sector to regional authorities." In sharp contrast, nationalists "oppose privatizing Iraq’s oil and natural gas reserves on the extraordinarily generous terms (to the oil companies) proposed by the U.S. government and institutions like the IMF, [and] favor centralized control over the development of Iraq’s oil and gas reserves."
The separatist camp includes the two main Kurdish parties, the Kurdish Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK). It also includes several, but not all, of the parties in the (Shiite) United Iraqi Alliance (UIA) promoted by Ayatollah Ali al-Sistani. Among the latter are the Supreme Iraqi Islamic Council (SIIC), known until May 2006 as the Supreme Council for the Islamic Revolution in Iraq (SCIRI), and prime minister al-Maliki’s wing of the Dawa party. Inasmuch as the (Sunni ) Iraqi Islamic Party (IIP) cooperates with the preceding parties, the IIP is a weaker partner of the separatist camp.
The nationalist camp includes the Sadrist movement led by Muqtada al-Sadr, former prime minister al-Jaafari’s wing of the Dawa party, and other Shiite groups. It also includes the (Sunni) General Council for the People of Iraq and the (Sunni) National Dialogue Council. And the nationalist camp includes all the secular parties, chiefly the Iraqi National List of former prime minister Ayad Allawi and the National Dialogue Front led by Saleh al-Mutlaq.
The preceding is a useful classification, especially for understanding the struggle ahead on still unresolved issues of federalism, but it is only an approximation in two important respects.
First, the separatist/nationalist distinction does not match the pro-US/anti-US distinction. For example, Ayad Allawi in the nationalist camp is a staunch US ally; he is a former high-level Baathist, who fell out with Saddam Hussein, later started working for the CIA in the early 1990′s, and has been lobbying in Washington to be reinstated as prime minister. In sharp contrast, the Sadrist movement in the same nationalist camp is an uncompromising US foe, while the SIIC in the separatist camp is less than a reliable US ally. (If there is an open confrontation between the US and Iran, in which the SIIC has to choose, there is every reason to believe that the latter will go with Iran.)
To complicate the picture further, the separatist/nationalist divide cuts across party lines, as in the case of the Dawa party, now effectively (though not officially) split between current prime minister al-Maliki’s wing (separatist) and former prime minister al-Jaafari’s wing (nationalist).
But there is a second important respect in which the preceding classification does not fully account for the forces at play, in that some extra-parliamentary groups cannot be neatly classified as either separatist or nationalist. Such are the women’s groups, for example, which actively (and in vain) opposed the draft constitution in the months preceding the October 2005 referendum. Activists for women’s rights have allies on both sides of the separatist/nationalist divide (the main Kurdish parties and all the secular parties), as well as foes on both sides of the divide (the sectarian parties). Among the most important extra-parliamentary groups are the labor unions, especially in the vital oil industry. While extra-parliamentary groups were generally the losers in the constitutional struggle leading up to the October 2005 referendum, labor unions have gained strength in the last two years and should get much of the credit for stalling the Oil and Gas Law since May 2007 — and in this fight the labor unions have been allied with the nationalist camp.
When the CPA-Bremer period ended in June 2004, the US handpicked Ayad Allawi from the nationalist camp to head the first post-2003 interim Iraqi government. That decision was made despite widespread popular dislike for Allawi, even against advice from US allies, and overrated Allawi’s ability to be a strong contender in the January 2005 elections for the Transitional National Assembly. The big winners in these elections were parties of the separatist camp, which in turn determined the composition of the Iraqi Constitutional Committee that was formed in May 2005. The resulting Iraqi realignment prompted a switch in American alliances — relying less on faithful allies (Ayad Allawi), turning against erstwhile and disposable ones (Ahmed Chalabi), and banking more on the separatist camp.
In the summer months leading up to the October 2005 referendum, while US ambassador Khalilzad was overtly driving the constitutional process, he received crucial support from one Iraqi official, Humam Hamoudi, the ICC’s chairman. Hamoudi is sometimes identified as the second-in-command of the SIIC (after Abdul Aziz al-Hakim) and a leader of its military wing, the Badr Brigade. Hamoudi is now also chairman of the Constitution Review Committee, the ICC’s successor.
While Khalilzad was busying himself with excluding clauses in the draft constitution that could nullify the core of the Bremer Laws on matters relating to the economy, Hamoudi, in a likely compromise, was allowed to prevail on such things as imposing religious restrictions on women’s rights and individual rights, which gave the document a decidedly conservative bent on personal and social matters. (In truth, this conservative bent should not be entirely laid at Hamoudi’s feet. The groundwork was already in place in the earlier TAL document, largely thanks to Noah Feldman’s efforts. Feldman was the NYU law professor assigned by L. Paul Bremer to take the lead in drafting the TAL. Feldman took pride that the document he helped write "fully acknowledged the role of Islam and its compatibility with democracy," after convincing his colleagues to give up "the idea that any democracy had to be secular.")
Humam Hamoudi’s Pieties
In a recent and poorly translated (into English) article, entitled "My Perceptions of the Iraqi Constitutional Process," Hamoudi defended his handling of the drafting process. Apart from the virtuous pronouncements of devotion to democracy and equality for all, and a flowery comparison between the draft constitution and a newborn child with a "lovely face", the rest of Hamoudi’s article is replete with inconsistencies and ambiguities crying for some explanation. He evidently believes none is necessary. To take one example, while Hamoudi recognizes Iraq’s non-Arab ethnic communities as such, ignoring religious distinctions among them — Iraq’s Kurds, Turkomen, and Shabak are religiously diverse ethnic communities, just like the Arabs — he repeatedly classifies Iraq’s Arabs according to their religious affiliations. Whenever he writes "the Arabs" it is in reference to people in the surrounding Arab countries, not in Iraq.
In apparent rebuttal to the charge that the new constitution is introducing a form of government akin to Lebanon’s confessional system, Hamoudi is at pains to claim the opposite. Notwithstanding the sectarian thrust of his essay, he insists Iraq will not have what he calls "a sectarian-conciliatory system, as it is in Lebanon."
Elsewhere in his essay, Hamoudi raises the issue of whether the constitution should include a clause stating that Iraq is an Arab country. Preliminary versions of the draft constitution made public in August 2005 declared "Iraq is a part of the Islamic world and its Arab people are part of the Arab nation," which was the only clause referring to Iraq’s Arabs as a single community regardless of religious denominations. In the later version submitted to the October 2005 referendum, this clause was changed to: "Iraq is a part of the Islamic world, and a founding and active member of the Arab League, committed to the League’s Charter," with no mention anywhere of Iraq’s Arabs as a single ethnic community, an obvious retreat in favor of the separatists. Hamoudi congratulates himself for this change, according to which he claims "the problem [of whether Iraq is an Arab country] was addressed skillfully;" he is referring to pressure from the Arab League and its influential members (chiefly Saudi Arabia and Egypt) for Iraq to retain its Arab connections. In fact, as far as Iraq’s Arabs are concerned, this change — to re-affirm Iraq’s membership in the Arab League — does nothing to alleviate the sectarian character of the constitutional document. (In nearby Lebanon, confessionalism has wreaked havoc on political life over many decades, while membership in the Arab League could never prevent its destructive effects.)
Were the Iraqis About to Undo the Bremer Laws?
Several preliminary versions of the draft constitution were leaked or made public from the time the Iraqi Constitutional Committee was formed in May 2005 up until the October 2005 referendum. Some of the earlier versions in June and July 2005 were significantly different, both in contents and tone, from the later versions in August and September 2005.
Based on a careful examination of three of these preliminary versions, Herbert Docena concluded that "the Iraqis, even those who were willing to cooperate with the Americans, wanted at least on paper to build a Scandinavian-type welfare system." But this contradicted what the occupation authorities had wanted from the beginning, and at the end the Iraqis were forced to accept a document that fulfilled instead "the wish-list of international investors."
One of the preliminary versions appeared in the Baghdad daily al-Mada of June 30, 2005. The opening sentences of "Article 5: The Basic Elements of Society" read as follows: "People are equal in their humanity and human dignity. Their humanity must be protected and honored. Social justice is the basis of building society." The opening sentence of another section (Article 18) was again: "The basis [or purpose] of the national economy is social justice." Elsewhere, it included clauses on the disposition of Iraq’s hydrocarbon wealth, in order to guarantee access to education, health care, housing, and other social services for every citizen.
In the version submitted to the October 2005 referendum, the clauses in question were amended or altogether omitted. In particular, instead of social justice, it asserted "the family is the foundation of society, and the state should preserve the family’s existence and ethical and religious value." In the referendum version, "family" rather than "social justice" is the foundation of society and, moreover, the single place where "social justice" is mentioned, it is unrelated to economic issues. Not only did the later version preserve the shift from "social justice" and its "economic basis" to "family" and its "ethical and religious values," it also included a new clause stipulating that:
"The State guarantees the reform of the Iraqi economy in accordance with modern economic principles to ensure the full investment of its resources, diversification of its sources and the encouragement and the development of the private sector."
Thus, out was social justice and its economic basis, and in was a formulation about "modern economic principles" and "development of the private sector," the kind of slogans underpinning the Bremer Laws. So stated, the draft constitution in effect binds Iraqis to uphold the Bremer Laws which have subjected Iraq to "an even more radical form of [economic] shock therapy than pursued in the former Soviet world," according to economist Joseph Stiglitz. If they are not repealed (they are still in place), they will continue to give foreign firms the right to pillage the Iraqi economy and fully repatriate their profits unhindered by Iraqi law — in total harmony with the worldview of the neo-conservatives in Washington.
Zalmay Khalilzad’s Handiwork
What was behind gutting the early versions of June and July 2005 of their progressive provisions? Right around the same time, in June 2005, the Iraqi foreign minister Hoshyar Zebari was in Washington. Zebari is a member of one of the two main Kurdish parties (KDP) and one of the more gifted Iraqi officials at mouthing neocon lines. He was imploring US authorities to take an assertive role in the drafting process because dissensions within the Iraqi cabinet, and between it and members of the ICC, made it difficult to reach a consensus. He also urged a speedy confirmation of the new ambassador to Iraq, Zalmay Khalilzad. "This entire project — of regime change and building democracy and encouraging reforms and American prestige — has really reached a critical mass," declared Zebari in pleading for forceful American involvement. Of course, Zebari’s declarations played to the fantasy that the invasion of Iraq was about "building democracy," but whether he believed it or not, his sycophancy evidently achieved the desired effect on his hosts.
Zalmay Khalilzad took up his new post on June 21, 2005. Within a few short weeks, he induced the Iraqi parties to produce the totally overhauled draft that would be submitted to the October 2005 referendum. Credit for the feat was acknowledged by various Iraqi participants, including supporters of US policies. Without qualms about even the appearance of blatant interference in internal Iraqi affairs — making clear to the colonial subjects who was calling the shots — Khalilzad participated directly in the constitutional discussions behind closed doors, sometimes even offering his own text. "The Americans say they don’t intervene, but they have intervened deep. They gave us a detailed proposal, almost a full version of a constitution," complained a Kurdish member of the ICC.
That was not the last of Khalilzad’s accomplishments before leaving Baghdad in March 2007. He oversaw the easing out of former prime minister al-Jaafari, a development of particular importance for the struggle between separatists and nationalists, and its impact on finalizing the draft constitution. In March 2006, Khalilzad transmitted the marching orders from Washington: he reported to leaders of the UIA that President Bush "doesn’t want, doesn’t support, doesn’t accept" the retention of al-Jaafari as prime minister. A three-man UIA committee including Humam Hamoudi (him, again) was charged with finding someone else for the job, eventually handed over to al-Maliki in May 2006.
The Struggle Ahead
Will Khalilzad’s handiwork stick? And how much of it? It is too early to tell. This article is only about Iraq’s constitution and the struggle to bend it in one direction or another, which is just one small part in a much wider confrontation inside Iraq, in the region, and beyond. Iraq’s constitution will reflect the results of the struggle between separatists and nationalists, the main fault line in Iraq now, and this will depend on how US policy will maneuver between the two sides and whether it can play one against the other.
An omen of what is ahead can be gathered from the current tensions between the Council of Ministers and the Parliament. The separatist parties firmly control the executive branch of the government, including its coercive instruments (the army, the police, three powerful paramilitary militias). But the nationalist camp has shown some muscle in recent months, gaining a slight edge in Parliament, where it has fought some important battles to a draw or even prevailed. An example of the latter are the events surrounding the Oil and Gas Law. The Iraqi cabinet sent a draft of this law to the Parliament in May 2007, intending to pass it into law by the end of that month. To this date, it has not been ratified, because of strong resistance inside the Parliament and outside, including from the revived and increasingly militant labor unions in the oil industry. At the very least, this augurs increased confrontation and gridlock between the cabinet and the Parliament in the short run — and indefinite delays in finalizing the constitution.
1. Paul Koring, "Constitution backed by 79% of Iraqis; Bush hails rare victory," The Globe and Mail (Canada), 26 October 2005.
2. Editorial, "A Referendum’s Message," The Washington Post, 18 October 2005.
3. Clark Lombardi, "The Iraqi Constitution: What Would Approval Really Mean?" The Jurist, Legal News and Research, University of Pittsburgh School of Law, 12 October 2005. See also, Zaid al-Ali, "Iraq: A Constitution to Nowhere," Open Democracy, 13 October 2005.
4. Entered as a separate article, Article 142, in the draft constitution of 15 October 2005.
5. The Niqash website, http://www.niqash.org/index.php, regularly posts news on internal parliamentary debates (niqash = debate). Particularly useful is a repository page of past constitutional documents, dating all the way back to the early 1920′s, shortly after the establishment of the modern state of Iraq. Another important source is the Dastoor website, http://www.dastoor.org/, which is entirely in Arabic (dastoor = constitution). The Dastoor has far less to offer than the Niqash, but it is the CRC’s official website and therefore more authoritative. The Dastoor has posted a version of the October 2005 draft constitution with additional articles, which are evidently part of the amendments the CRC intends to eventually submit to the Parliament.
6. See The Bremer Laws.
7. Ibid., see in particular Orders 12, 17, 29, 30, 39, 40, and 49.
9. Ibid., Article 26 of the TAL states that "the laws in force in Iraq on 30 June 2004 [i.e. the Bremer Laws] shall remain in effect unless and until rescinded or amended by the Iraqi Transitional Government."
10. Michael Hirsh, "Two Cheers for Bremer," Newsweek, 29 June 2005. See also, Neil MacDonald, "Iraq Constitution Will Draw Heavily from Transitional Law," Financial Times, 20 May 2005.
11. See for example the commentaries posted on the Niqash website, op. cit. Some of these are only in Arabic, the others are both in Arabic and English.
12. All these texts are accessible from the Niqash website, op. cit.
13. Mark Lattimer, "Freedom Lost," The Guardian, 13 December 2007.
14. All these articles are accessible from the Alternet website.
15. Joshua Holland and Raed Jarrar, "The Battle for Iraq is About Oil and Democracy, Not Religion," 10 September 2007.
16. Ayad Allawi, "A Plan for Iraq," Washington Post, 18 August 2007. See also, Walter Pincus, "Lobbyists Hired to Press Maliki, Former Premier Says," Washington Post, 27 August 2007.
17. David Ignatius, "Bush’s Lost Iraqi Election," Washington Post, 30 August 2007.
18. Thalif Deen, "Iraqi Women May Lose Basic Rights Under New Constitution," Inter Press Service, 23 July 2005. See also, Ellen Massey, "Iraqi Women Resist Return to Sectarian Laws," Inter Press Service, 26 June 2007.
19. Lattimer, op. cit.
20. Hassan Jumaa and Awwad al-Assadi, "Federation of Oil Unions in Iraq," 4 November 2005. See also, General Federation of Iraqi Workers, "A short history of trade unionism in the Iraqi oil industry," 24 August 2004.
21. Kamil Mahdi, "Iraq’s Oil Law: Parsing the Fine Print", World Policy Journal, Summer 2007.
22. There is more to say in mapping out the contending forces on the Iraqi side, but perhaps with a lesser effect on the ultimate fate of the constitution. For example, within the nationalist camp, there is considerable bad blood between Ayad Allawi and the Sadrist movement, dating back to the time when the former as prime minister tried in vain to suppress the latter. Similarly, within the separatist camp, while the two main Kurdish parties and the SIIC are close on federalism, they are at odds on secularism.
23. Doug Lorimer, "Iraq: US still calls the shots," Green Left Weekly (Australia), 9 June 2004.
24. Edward Wong, "Iraqi Constitution May Curb Women’s Rights," NY Times, 20 July 2005.
25. Kareem Fahim, "Have a Nice Country — Noah Feldman Helped Write the Iraqi Constitution. Now He Gets to Watch it Sink or Swim," The Village Voice, 29 June 2004.
26. Humam Hamoudi, "My Perceptions of the Iraqi Constitutional Process," Stanford Law Review, Volume 59, April 2007.
27. Some of the August 2005 versions are available in English.
28. Article 3 in the version ratified by the October 2005 referendum.
29. Herbert Docena, "Iraq’s Neoliberal Constitution," Foreign Policy in Focus report, 2 September 2005. Although Docena consulted preliminary versions that were available in both Arabic and English, his general conclusions apply to other versions that appeared in the Baghdad press and were not translated.
31. Joseph Stiglitz, "Shock Without the Therapy," Business Day (South Africa), 20 February 2004. See also, Naomi Klein, "Baghdad Year Zero: Pillaging Iraq in Pursuit of a Neocon Utopia," Harper’s Magazine, 1 September 2004, where the author points out that the Bremer Laws pushed through "more wrenching changes [in Iraq] in one sweltering summer than the International Monetary Fund has managed to enact over three decades in Latin America."
32. Robin Wright, "Iraqi Official Appeals for Greater U.S. Role," Washington Post, 3 June 2005.
33. Jonathan Finer and Omar Fekeiki, "U.S. Steps Up Role in Iraq Charter Talks," Washington Post, 13 August 2005.
34. BBC report, "US envoy calls for new Iraqi PM."
35. The two main Kurdish parties in the separatist camp, the KDP and the PUK, have not demobilized their powerful armed wings, the so-called peshmerga units, in northern Iraq. The main Shiite party in the separatist camp, the SIIC, controls one of the two most powerful paramilitary organizations in central and southern Iraq, the Badr Brigade. The latter’s main rival is the Mahdi Army, the armed wing of the Sadrist movement in the nationalist camp.
36. Mahdi, op. cit.
Assaf Kfoury is Professor of Computer Science at Boston University. He is an Arab American who grew up in Beirut and Cairo, and returns frequently to the Middle East.