Iraqi constitutionalism (it's morning in Iraq, so tospeak)
SLevinson at law.utexas.edu
Sun Aug 14 20:14:20 PDT 2005
Re Mark's comment about the need for "a strong dose of Iraqi nationalism." The basic conundrum, of course, is how one builds "nationalism" where there is in fact no "nation" definable along traditional ethnic, religious, or linguistic lines. I se no evidence that the Kurds want to be part of an Iraqi nation in anything other than a minimalist sense, perhaps to the same degree that the Commonwealth Puerto Ricans feel integrated with the United States. But my real question is this: How often have constitutions in fact served to create national identities wehre they did not already exist? The US Constitution has a mixed record in this regard, given 1861 (and the fact that secessionist argument began no later than 1814 (Hartford Convention) and then went South by the late 1820s. It's hard to argue that the Canadian Constitution has been notably successful in this regard, though it's true that Quebec has not attempted to secede, but, of course, Quebec has the kind of autonomy that the Kurds will certainly get and, I assume, the Shiites would like as well. Moreover, Canada is relentlessly bilingual, which I gather is one of the unresolved issues in Iraq.
Still, perhaps the Administration will indeed turn out to be right, which would indeed be a reason for real joy. I suppose we'll know shortly (though then we can start the countdown to October 15).
From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Graber
Sent: Sun 8/14/2005 8:57 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Iraqi constitutionalism (it's morning in Iraq, so tospeak)
Let me try to defend (gasp) Bush administration policies here. What is
needed in Iraq is a strong does of Iraqi nationalism. I do not think it
unreasonable (the weak formulation is deliberate) to think that the
finished constitution might (note the weak formulation again) spark some
Iraqi nationalism. By comparison, every day of overtime may spark more
ethnic identify (we Sunnis need to bargain better). If this is so, then
any document that comes out sooner is more likely (how much more is open
to question) than a document that comes out later, even if in some sense
some of the provisions in the latter are better than the former. At
least, this strikes me as the logic of Bush administration policies, and
if so, I do not think it stupid (as I do some other aspects of this
policies). But all this post may indicate is how little I know about
the subject matter.
P.S. In this vein, what the Iraqis really need is an Iraqi world cup
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 08/14/05 9:17 PM >>>
[U.S. Ambassador] Khalilzad told CNN that ''a lot of American blood and
American treasure has been spent here'' -- a point that he had made
''abundantly clear to my Iraqi interlocutors.''
Query: What is the precise relevance to Iraq's constitution drafters of
the fact that "a lot of American blood and American treasure has been
spent here"? After all, the initial rationale for the war had nothing
to do with making life better for Iraqis; it was supposed to protect
America (and the world) from weapons of mass destruction and the Iraqi
nuclear program. Obviously, the rationale has shifted, but if the new
rationale is Iraqi autonomy, then why isn't it instantiated precisely in
a bargaining process that manifests little or no respect for the US
obsession with the "sacred" deadline of August 15? What precisely can
(and will) the US do if the constitution is not in fact submitted
tomorrow? Is the US in fact in a strong bargaining position? Is it in
our interest, for example, that it be submitted without Sunni support
and passed by a Kurd-Shiite coalition? Would we expect the Sunnis to
ratify such a constitution in the October 15 vote?
August 14, 2005
Iraqi Leaders Rush to Finish Charter; 6 U.S. Soldiers Killed
By THE ASSOCIATED PRESS
Filed at 8:09 p.m. ET
BAGHDAD, Iraq (AP) -- With one day left to finish Iraq's new
constitution, Sunni Arabs asked Sunday that the divisive issue of
federalism be put off until next year so the draft can be completed on
time, warning they would not accept provisions for federated states.
In violence, five U.S. soldiers were killed by roadside bombs over the
weekend and another died in a shooting, the U.S. military announced. At
least 11 Iraqis were killed Sunday in attacks across the country, police
Ahead of Monday's deadline for parliament to adopt the constitution,
American officials applied pressure to resolve differences on federalism
and other issues, and U.S. Ambassador Zalmay Khalilzad said he was
convinced the Iraqis would succeed.
Some politicians said the draft could be presented to the Shiite- and
Kurdish-led parliament Monday over Sunni Arab objections. But that would
further alienate that disaffected minority, undercutting the U.S. goal
of using the political process to take the steam out of the
''It looks like all the agreements are being made only by the Kurds and
the Shiites without even asking our opinion,'' Sunni Arab official Saleh
al-Mutlaq said Sunday. ''I believe the draft is going to be presented
tomorrow even if it is not finished, with or without our approval.''
Parliament scheduled a meeting for 6 p.m. (10 a.m. EDT) Monday to allow
as much time as possible for negotiators to agree on a draft.
The main obstacle was the argument over federalism, which the formerly
dominant Sunni Arabs fear could lead to Kurdish and Shiite Muslim
regions splitting away from Iraq. But al-Mutlaq said there also was no
agreement on 17 other issues, including the distribution of oil wealth.
Another Sunni official voiced objections over a Shiite-Kurdish deal to
grant special status to the clerical hierarchy of Iraq's Shiite Muslim
Sunni Arab politicians asked that federalism be left out of the
constitution until a new parliament is elected during a meeting with
President Jalal Talabani and Massoud Barzani, leaders of the two major
Kurdish parties and proponents of a federal system to protect the
self-rule Kurds have had since 1991.
''We made a proposal to transfer federalism and the process of forming
federal regions to the next National Assembly,'' Sunni politician Kamal
Hamdoun said. ''Legislation could be drafted on these two matters and a
referendum could be held on them.''
Hamdoun said the Sunnis received no response to their proposal, which
the Kurds have rejected in the past.
He said other charter provisions that Sunnis objected to were
recognition of the Kurdish language, dual citizenship and the role of
the Shiite religious leadership.
''If there are points that we do not agree on, we will not sign any
draft,'' Hamdoun said, adding that he didn't think Shiites and Kurds
would push through a charter ''if they are serious about the unanimity
Since Shiites and Kurds have agreed on most constitutional issues,
Kurdish lawmaker Mahmoud Othman said the drafting committee would
present the draft to parliament Monday even if the Sunni Arabs objected.
Parliament could approve the draft by a simple majority, and the Shiites
and Kurds together hold 221 of the 275 seats. However, that risks a
Sunni backlash that could scuttle the constitution when it is put before
voters in an Oct. 15 referendum.
If two-thirds of the voters in at least three of the 18 provinces vote
''no,'' the charter would be defeated and Sunnis form a majority in at
least four provinces. Sunni clerics are urging followers to vote against
any constitution that could lead to the breakup of the country.
With the Sunnis standing fast, Shiite legislator Jawad al-Maliki, a
member of Prime Minister Ibrahim al-Jaafari's Dawa Party, raised the
possibility that the deadline could be pushed back.
''We might amend the interim constitution and extend the deadline by a
minimum of two weeks'' to allow time to win over the Sunni Arabs, he
told The Associated Press.
That would require approval of two-thirds of parliament and the
president and his two deputies. However, the United States was anxious
to keep to the schedule and ratcheted up pressure on the Iraqis to meet
the Monday deadline.
''The Iraqis tell me that they can finish it and they will finish it
tomorrow,'' the U.S. ambassador said on ABC's ''This Week.''
Khalilzad also acknowledged the importance of getting Sunni Arabs to
join in backing the document. ''This constitution can be a national
compact bringing Sunnis in, isolating extremists and Baathist
hard-liners and setting the stage over time for defeating them,'' he
said on CNN's ''Late Edition.''
Khalilzad told CNN that ''a lot of American blood and American treasure
has been spent here'' -- a point that he had made ''abundantly clear to
my Iraqi interlocutors.''
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