Iraqi constitutionalism (one day to go)

Kim Scheppele kscheppe at
Sun Aug 21 08:57:08 PDT 2005

With this agonizing constitutional drafting process, we're now seeing the results of the incredibly botched elections in January.  I'm sure we all remember triumphant Iraqis bravely exercising their rights to vote and the optimism that passion for democratic participation produced.  But the election was structurally flawed so that it could not reflect the views of those who voted.   

In the TAL (interim constitution), there was never an agreement on how elections were to be conducted, precisely because the questions of federalism had not been resolved.  The one-person-one-vote principle that would have created a clearly Shi'a majority government was rejected, but so was the model of allocating representatives to regions that would have reflected a basically federal structure.  In the end, Iraqis could vote for "lists" -- each of which was a hodgepodge composite of a number of different interests and individuals.   No list stood for anything in particular because each list was a temporary coalition of people of different views.   

Now we see the result -- those who were elected in such a system are holding out for the realization of their own personal preferences because they are not bound to any party platform or promises to constituents.  Those in the leadership roles bargaining over the shape of the Iraqi state disproportionately reflect the conservative religious Shi'a community, despite the fact that many (perhaps even most) Shi'as outside this process are more liberal and secular on constitutional questions.  That is why Iraq may well get an Islamic state despite the fact that there is no majority support in the country for this solution.  

The US at this point simply wants a constitution that appears to form a government.  But if the US were really committed to the spread of democracy and freedom, as it claims to be, it should want a constitution that actually reflects what the majority of Iraqis want while still protecting the rights of minorities and less advantaged groups.   Anything short of that will not in fact "constitute" either an Iraqi people or a stable government.   It's very sad to watch Iraq hurtling toward a constitution that may exacerbate rather than solve political problems.  


Kim Lane Scheppele

Director, Law and Public Affairs Program
Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and University Center for Human Values
Faculty Associate in Politics and in Sociology

Woodrow Wilson School 
415 Robertson Hall
Princeton University
Princeton, NJ 08544 
Phone:  (609) 258-6949
Email:  kimlane at  

  ----- Original Message ----- 
  From: Sanford Levinson 
  To: Sanford Levinson ; conlawprof at 
  Sent: Saturday, August 20, 2005 11:01 PM
  Subject: RE: Iraqi constitutionalism (one day to go)

  This is the actual story in tomorrow's Times.  One can hardly help noting the vigorous participation of the American Ambassador in setting up a basically Islamic state.  More than ever, one wonders if that has anything to do with a genuine concern for the Iraqi people (or, more to the point, the women of Iraq and/or the Sunnis, not to mention secular Kurds) or is a sign of the increasing desperation of the Bush Administration to get out of this war as soon as possible.  And why would a constitution so clearly drafted under American pressure (and, one might hypothesize, with off-budget American funds going to bribe relevant officials) have any legitimacy at all with any Iraqi not inclined to be a puppet of the US?


  August 21, 2005
  Iraqi Talks Move Ahead on Some Issues
  BAGHDAD, Iraq, Aug. 20 - Iraqi leaders trying to complete a new constitution moved Saturday toward deals on such contentious issues as Shiite autonomy, sharing oil revenues and Kurdish self-rule. But as they progressed on those fronts, a tentative agreement that would have given Islam an expanded role in the state and in family disputes appeared to unravel.

  "Islam is back on the table," said a person close to the negotiations, who spoke on the condition of anonymity, citing the sensitivity of the talks.

   legislationUnder a deal brokered Friday by the American ambassador, Zalmay Khalilzad, Islam was to be named "a primary source of" in the new Iraqi constitution, with the proviso that no legislation be permitted that conflicted with the "universal principles" of the religion. The latter phrase raised concerns that Iraqi judges would have wide latitude to strike down laws now on the books, as well as future legislation.

  At the same time, according to a Kurdish leader involved in the talks, Mr. Khalilzad had backed language that would have given clerics sole authority in settling marriage and family disputes. That gave rise to concerns that women's rights, as they are enunciated in Iraq's existing laws, could be curtailed.

  Finally, according to the person close to the negotiations, Mr. Khalilzad had been backing an arrangement that could have allowed clerics to have a hand in interpreting the constitution. 

  That arrangement, coupled with the expansive language for Islam, prompted accusations from the Kurd that the Americans were helping in the formation of an Islamic state. 

  The American Embassy has declined to comment on the negotiations. 

  Much of the Shiite leadership favors the establishment of an Islamic state, but several Iraqi leaders, including most of the Kurds and many Shiites, oppose it.

  Mr. Khalilzad has taken an active role in trying to secure a constitution that could be agreed to by Iraq's three main groups, the Shiites, the Sunnis and the Kurds. 

  In Washington, a senior State Department official acknowledged that Iraqi leaders were considering a concession to Shiite leaders on religious authority over personal law, but he cautioned that "nothing is done until everything is done," and that the final charter needed to be judged by all its pieces, not just one.

  "This piece might be there," the official said, referring to language that would give authority over family and other matters to religious leaders.

  Iraqi leaders spent much of Saturday discussing a formula for sharing Iraq's vast oil wealth. As on Friday, Mr. Khalilzad was the primary catalyst in the negotiations, shuttling between the Shiite and Kurdish camps. The discussions over oil stretched past midnight.

  Though no deal on oil was struck, the bargain under consideration would involve some mix of federal and local control over oil, said the person close to the negotiations.

  Iraqi leaders said they had reached a tentative deal on the contentious issue of a Shiite autonomous region in southern Iraq. Under the arrangement, the voters of each province would be allowed to decide by referendum whether they want to have more autonomy or to join with other provinces to form an autonomous region.

  Such a deal would appear to clear the way for the establishment of the federal region envisioned by Abdul Aziz Hakim, the powerful Shiite leader, who publicly endorsed the formation of a nine-province Shiite autonomous area.

  "It's done," said Bahaa Al Araji , a Shiite member of the constitutional committee. "Iraq will be a federal state."

  A federal Iraq would sharply conflict with the desires of the country's Sunni leaders, who oppose allowing the Shiites to form their own autonomous area. 

  The Sunni leaders argue that Shiite autonomy, coupled with that already enjoyed by the Kurds, could lead to the dissolution of Iraq.

  Sunni leaders complained Saturday that they were being left out of the negotiations. Indeed, it appeared that an American-Iraqi strategy was to strike a deal between the Shiites and the Kurds first, and then present it to the Sunnis as a take-it-or-leave-it proposition.

  The Sunnis have few members in the national assembly, which is supposed to approve the constitution, because of a widespread Sunni boycott of the January elections. 

  It has been a principle of American policy to make sure the Sunnis are included in any deal on the constitution, since Sunnis form the backbone of the insurgency. "We were waiting, but there was no meeting," said Saleh Mutlak, one of the Sunni leaders. "No one invited us."

  Several Shiite leaders said they understood that the Kurds had dropped their insistence on language that would allow them to secede from Iraq under certain circumstances. But there was no official confirmation from the Kurdish camp.

  Steven R. Weisman contributed from Washington for this article.


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