Iraqi constitutionalism -(secession)
Conkle, Daniel O.
conkle at indiana.edu
Wed Aug 17 09:25:56 PDT 2005
Her name is Elisabeth Zoller. (Her French affiliation is at Paris II.)
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lynne Henderson
Sent: Wednesday, August 17, 2005 11:16 AM
To: Sanford Levinson; Grant Huscroft; conlawprof at lists.ucla.edu
Subject: RE: Iraqi constitutionalism -(secession)
I might add that a French comparative constitutional law scholar
who frequently visited at IU-Bloomington when I was there--her name
escapes me at the moment, but she is quite well known--mentioned several
times that the greatest gift to constitutionalism by the US was judicial
review, especially in the context of policing the boundaries, of
federalist systems. The name willcome to me--I can see her, hear her, we
spoke frequently . . .drat. Senior moments abound.
Prof. Lynne Henderson
From: Sanford Levinson
Sent: Aug 16, 2005 8:46 PM
To: Grant Huscroft , conlawprof at lists.ucla.edu
Subject: RE: Iraqi constitutionalism -(secession)
Many thanks to Grant Huscroft for bringing up the fascinating
Canadian decision. As I read it (and have taught it), the Court doesn't
quite say that there is a constitutional right to secede (in part since
it would take a constitutional amendment to authorize secession), but
that there is a constitutional right to have the central government
enter into good faith negotiations. We obviously have no idea what
would happen if the central government refused to support a
constitutional amendment to allow Quebec's secession even as Quebec
unilaterally declared indendence, the legality of which was explicitly
rejected by the Canadian Supreme Court. In any event, there is
presumably no similar right to respectful negotiation n the US should
the Pacific Coast states, say, suggest that they'd like to leave the
Union. At the very least, the Kurds should make it clear that they
reject any "Lincolnian" view of perpetual union (or so I would advise
them were I asked), just as under no circumstances should the Kurds
disarm and recognize any "monopoly over the means of violence" in the
I'm still interested, incidentally, in what procedures are being
suggested to enforce whatever federalism deal is agreed to. Perhaps
I've mentioned before the article by Bednar, Ferejohn, and Eskridge
suggesting that a strong independent judiciary is necessary to police
the federalism deal, given the overwhelming incentives on the part of
both national and provincial governments to cheat. I would assume that
under any likely scenario the Supreme Court will be dominated by Kurds
and Shiites, with Sunnis being a distinct minority.
Seymour Hersch was just on the John Stewart show, suggesting
that no one outside of the Green Zone (who, he suggested, are delyaing
in part in order to get more money from the US as bribes) believes the
constitution is at all relevant. If there is any agreement in the next
week, I suppose we'll find out if he is too pessimistic.
From: Grant Huscroft [mailto:ghuscrof at uwo.ca]
Sent: Tue 8/16/2005 7:08 PM
To: Sanford Levinson; conlawprof at lists.ucla.edu
Subject: Re: Iraqi constitutionalism -(secession)
Sandy, the Canadian situation comes to mind.
In the absence of any mention of secession in the Canadian
Constitution, the Supreme Court of Canada held that a sufficiently clear
expression of intent to secede (on the part of Quebec) would obligate
the Federal government and the Canadian provinces to negotiate towards
an arrangement with a view to amending the Canadian Constitution. The
case was a reference question from the federal government:
Here is an extract from the case, Reference Re Secession of
Quebec,  2 S.C.R. 217
88 The federalism principle, in conjunction with the
democratic principle, dictates that the clear repudiation of the
existing constitutional order and the clear expression of the desire to
pursue secession by the population of a province would give rise to a
reciprocal obligation on all parties to Confederation to negotiate
constitutional changes to respond to that desire. The amendment of the
Constitution begins with a political process undertaken pursuant to the
Constitution itself. In Canada, the initiative for constitutional
amendment is the responsibility of democratically elected
representatives of the participants in Confederation. Those
representatives may, of course, take their cue from a referendum, but in
legal terms, constitution-making in Canada, as in many countries, is
undertaken by the democratically elected representatives of the people.
The corollary of a legitimate attempt by one participant in
Confederation to seek an amendment to the Constitution is an obligation
on all parties to come to the negotiating table. The clear repudiation
by the people of Quebec of the existing constitutional order would
confer legitimacy on demands for secession, and place an obligation on
the other provinces and the federal government to acknowledge and
respect that expression of democratic will by entering into negotiations
and conducting them in accordance with the underlying constitutional
principles already discussed.
In terms of who has the last word, the government having asked
the Supreme Court in essence conferred the last word upon the Court. The
government subsequently passed legislation implementing the Court's
decision (called the Clarity Act).
Faculty of Law
University of Western Ontario
On Aug 16, 2005, at 6:16 PM, Sanford Levinson wrote:
So the question is this: Assume the Kurds compromise
and accept a draft that does not explicitly give them a right to
withdraw in eight years. I assume that the draft will not say
(something like) "this is a perpetual union from which secession is
unthinkable" but will instead adopt the practice of the US constitution
and say nothing at all about the possibilty of secession. But let's
assume that seven or eight years after ratification of such a
constitution, the Kurdish governorates decide that it's time to leave.
How should one interpret the postulated Iraqi constitutional text with
regard to secession? And, of course, who should have the last word on
the issue. The Iraqi Supreme Court? The Iraqi parliament? As I think
I've written earlier, one of the truly remarkable things about the South
African constitution is that no one involved in the negotiating process
apparently even contemplated the possibilty of secession. I.e, there
was no conscious decision not to mention it. It simply never came up.
So I would assume that the best way to interpret the SA constitution is
not to allow secession. But what would the silence in the Iraqi
August 16, 2005
Iraqi Kurds Say They Don't Plan to Secede
By THE ASSOCIATED PRESS
Filed at 5:35 p.m. ET
BAGHDAD, Iraq (AP) -- Kurdish leaders insisted Tuesday
they have no plan to secede from Iraq even if they want the new
constitution to give them the right to do so -- one of the issues that
forced a delay in finishing the draft charter.
Meetings were to resume Wednesday among Iraqi leaders
seeking to finish the draft by the new deadline -- midnight Aug. 22.
Iraqi leaders expressed confidence they would overcome
differences over remaining issues, including Kurdish demands for
self-determination and the role of Islam, by Monday.
However, many leaders were equally sanguine about
prospects for meeting the original Aug. 15 deadline. If no agreement can
be reached this time, the interim constitution requires that parliament
Different groups gave conflicting information on what
had been resolved and what stood in the way of a deal.
Shiite lawmakers cited the role of Islam -- an issue
that affects women's rights -- and self-determination for the Kurds,
which Arabs fear would mean they would eventually secede from the
President Jalal Talabani, a Kurd, insisted the Islam
issue had been solved and ''you will see in the constitution that it is
not a problem.''
Prime Minister Ibrahim al-Jaafari, a Shiite, mentioned
federalism, the election law and the formula for distributing revenue
from oil and other natural resources. Sunni negotiator Mohammed
Abed-Rabbou said ''the most important point is federalism.''
Most also cited Kurdish demands for self-determination
-- a step beyond federalism because it would imply the right to break
away from Iraq. U.S. Ambassador Zalmay Khalilzad insisted that
self-determination was ''not on the table.''
Talabani, leader of the Patriotic Union of Kurdistan,
acknowledged that his fellow Kurds wanted self-determination but brushed
aside talk of secession.
''There are rumors that the Kurds want to secede, but
they are for unity,'' he told reporters Tuesday. He said he expected the
constitution to be finished ''before the deadline.''
Other Kurds defended their self-determination demand,
although they insisted they has no plans to secede.
''Kurdish politicians have no present intentions to gain
independence. But we need self-determination in order to decide our
future in case troubles erupt in Iraq in the future,'' said Mullah
Bakhtiyar, a senior official in the Kurdish Democratic Party.
''We are not making surprise or sudden demands, it is
the Shiites who are doing so,'' said Bakhtiyar. He also said Shiites
were pressing to grant special status for their clerics.
Bakhtiyar said such special status would be ''a
dangerous thing because every sect will seek orders from its religious
leadership and this means that there will be no rule by law or
Al-Jaafari, the prime minister, said disagreements were
largely over details and he expressed confidence that Iraq's
constitution could be finished within a week.
''I hope that we will not need another extension. The
pending points do not need too much time and God willing we will finish
it on time,'' he said Tuesday.
The delay was an embarrassment for the Bush
administration, which insisted that the original deadline be met to
maintain political momentum and blunt Iraq's deadly insurgency.
The U.S. military announced Tuesday that three American
soldiers were killed the night before when their vehicle overturned
during combat operations in south Baghdad. At least 15 Iraqis were
killed Tuesday in Baghdad and central Iraq in insurgency-related
If agreement on a constitution is reached, Iraqis will
vote around Oct. 15 to accept or reject the charter, leading to more
elections in December for the country's first fully constitutional
government since the U.S.-led invasion toppled Saddam Hussein's regime
Khalilzad, the U.S. ambassador, sought to downplay the
delay, adding that he was convinced a deal could be reached by the new
Aug. 22 deadline.
''I believe that an agreement will be arrived at if the
leaders continue with the attitude of compromising, putting oneself in
the shoes of the other side,'' Khalilzad told reporters in Baghdad.
The United States hopes political progress, including
adoption of a democratic constitution, will help deflate the Sunni
Arab-led rebellion and enable the Americans and their partners to begin
withdrawing troops next year.
Nevertheless, the last-minute decision to postpone the
deadline raised serious questions about the ability of Iraq's varied
factions to make the necessary political compromises. Some Iraqi
citizens were worried about the exposed fractures in the country's
''We are disappointed because we risked our lives when
we went out to polling stations, but now we see each political bloc
searching for its own interests,'' said Taha Sabir in Baghdad. ''We
expected a better life, but we got only many crises such as electricity
and fuel shortages.''
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