Iraqi constitutionalism (down to the wire)

[Sanford Levinson]

This will be in tomorrow's NYTimes.  Note well that the "leaders" who are reporting progress are exclusively Shiite and Kurdish.  Perhaps one might compare the current process with the way that legislation is "crafted" in the Congress, where republican conference committees feel free to do whatever they want, without the slightest Democratic participation.  As Ahmad Chalabi, the Tom DeLay of the Iraqi Shiites, puts it, "How many votes have they got?" he said of the Sunnis.  Again, one can ask if such a process (which I assume will be haled by the Bush Administration as "democracy in action") will do anything to forestall civil war.
 
Tom Friedman, in his columns during the run-up to the war, said several times that he wasn't sure himself whether Saddam was tyrannical because that's just the way he was, or whether the jerry-built country of Iraq, like Yugoslavia, depended on a fairly ruthless leader to keep it together.  (Tito, of course, looks like Mother Teresa compared to Saddam, but that doesn't defeat Friedman's basic question.)  Friedman was an "optimist," defending the war in part because he believed that Iraq, a basically secular country with lots of educated people (including women), would take advantage of liberation to build a society that would in fact inspire the rest of the Middle East.  He also assumed a basic level of competence on the part of the Bush Administration.  In any event, to what extent should Sunnis have a rational fear of quasi-genocide if civil war does in fact break out, given that they constitute a mere 20% of the population, and I assume that part of the deal is that Kurds and Shiites will get a lot of American arms that will be useful to suppress their opposition.  Anyone who believes that things can't get much worse than they already are is, I suspect, an optimist.
 
So what should we wish for tomorrow.  That the Kurds and Shiites ram somethingthrough and dare the Sunnis to do anything about it, or that there is in fact a continued failure to reach agreement and that the present National Assembly, which as Kim Scheppele has noted, basically represents no one, is dissolved with new elections, including participation by the Sunnis this time around, will follow?  
 
 
 
 
August 22, 2005

Leaders in Iraq Report Progress on Constitution

By DEXTER FILKINS <http://query.nytimes.com/search/query?ppds=bylL&v1=DEXTER FILKINS&fdq=19960101&td=sysdate&sort=newest&ac=DEXTER FILKINS&inline=nyt-per> 

BAGHDAD, Iraq, Monday, Aug. 22 - Iraqi leaders moved to the brink of agreement on a new constitution on Sunday, solving several contentious issues but still struggling with the potentially explosive questions of Shiite autonomy and the role of Islam in family disputes and the judiciary.

The Iraqis said they were hoping to finish the constitution by the end of the day on Monday, a deadline that they have already extended once. They scheduled a meeting of the National Assembly for Monday evening, when they hoped to present a finished constitution for approval.

Negotiators said they had agreed on a formula to share Iraq's oil wealth, which had been one of the most difficult issues. The agreement was being shepherded with the help of American officials and especially the American ambassador to Iraq, Zalmay Khalilzad. After more than 12 hours of talks on Sunday, an American official said a deal was almost in hand.

"It looks like all the major issues are resolved, and we hope tomorrow we will work out the remaining details," said the American official, who, following standard diplomatic practice, spoke on condition of anonymity.

But a number of important obstacles remained, and Iraqi leaders, including Laith Kubba, an aide to Prime Minister Ibrahim al-Jaafari, raised the possibility that they would have to extend the deadline once again. 

The most sensitive of unresolved issues revolved around the role of Islam, which the constitution writers have designated as "a main source of legislation" in the new constitution. Two critical questions have not yet been resolved: whether to allow clerics to sit on the Supreme Court, and how much authority clerics will have in resolving family disputes like divorce and inheritance. Maintaining secular authority over family matters is especially important to secular Iraqi women, who fear that Islamic judges will take away the rights they now enjoy under Iraqi law.

A potentially more intractable problem in the long run was the disaffection of Sunni leaders, who have been largely excluded from the deliberations over the past week. The constitution has been written almost entirely by Shiite and Kurdish leaders, who said they had decided to leave out the Sunnis because they were being too inflexible.s

The support of the Sunni leaders is not necessary to complete the constitution. Because the Sunni community largely boycotted the election in January, they have only a handful of legislators in the 275-member National Assembly, which must approve the document.

On Sunday, Sunni leaders complained of being locked out the drafting process. They demanded that they be included and, if they were not, that the constitution be defeated. 

"There is still no active and serious coordination so far," 15 Sunni leaders said in a joint statement. "This constitution needs to be written by consensus, not simply a majority vote."

The agreement of the Sunni participants is viewed as crucial in helping to placate the larger Sunni Arab population, which formed the backbone of support for Saddam Hussein's government and provides the bulk of the manpower for the guerrilla insurgency. Sunni Arabs make up about 20 percent of Iraq's population.

Shiite and Kurdish leaders said that after they had agreed on a draft, they would show the constitution to the Sunni leaders on Monday.

The Shiites and the Kurds said they would consider Sunni views, but they said they would only bend so far to accommodate them.

The Sunnis, for instance, have been adamant in their opposition to granting autonomy to the Shiite-majority areas. Leaders of the Shiites, who make up about 60 percent of Iraq's population, are pressing for the establishment of an autonomous region in southern Iraq. The region would consist of 9 of Iraq's 18 provinces and contain its richest oil fields.

Sunni leaders argue that granting autonomy to the Shiites, along with the Kurds, who already have it, could cripple the Iraqi state.

Shiite and Kurdish leaders said they intended to include language in the constitution that would allow individual provinces to vote on autonomy. But they said they were discussing a compromise that could make the idea more palatable to the Sunnis.

Ahmad Chalabi, the deputy prime minister, said Shiite and Kurdish leaders were discussing language that would limit the size of autonomous regions to three provinces each. "The idea is to satisfy the Sunnis so they don't go berserk," Mr. Chalabi said in an interview at his home in Baghdad. "They are afraid of a super-Shia region."

But Mr. Chalabi, who is a Shiite, warned that the Shiites and the Kurds would not compromise on their desire for autonomous regions, even if the Sunnis withdrew their support. 

c"The majority of Iraqis want federalism."

Mr. Chalabi and other Iraqi leaders said they had agreed to a formula to share Iraq's oil and gas wealth, which provides the bulk of the government's revenue. Under the agreement, money earned from oil and gas deposits would be shared among the provinces according to population.

The central government would control the oil and gas extracted from existing fields, and regional governments would be allowed to control fields that are not currently being worked.

The control of oil is considered critical to the future of the Iraqi state, in part because most of the country's known deposits exist in southern Iraq, where the Shiites predominate, and in northern Iraq, the home of the Kurds. For the most part, Iraq's Sunni Arabs do not inhabit regions known to contain much oil.

Iraqi leaders said they had yet to agree on details for resolving the disputed status of the northern city of Kirkuk. They have agreed in principle to reverse Mr. Hussein's "Arabization" policy, which involved the expulsion of tens of thousands of Kurds and the resettlement of tens of thousands of Arabs. Kurdish leaders are pushing for a timetable to carry out that process, and for a referendum to determine whether the city would be brought under the control of the Kurdish regional government.

The most difficult issues still unresolved dealt with the role of Islam. One was the question of whether to allow clerics on the Supreme Court; under one proposal being discussed, four of nine seats on the Supreme Court would be reserved for clerics.

The other issue was the role of clerics in family law. Mr. Chalabi said Iraqi leaders were weighing two phrases. The first phrase, considered more secular, says that "Iraqis of all faiths, confessions and otherwise, are free to conduct family issues according to their beliefs." Under that phrase, the National Assembly would write legislation to resolve conflicts that arise when a husband and wife have different beliefs.

A second phrase says simply that "Iraqis will not be compelled to act in family affairs in ways contrary to their religious faiths or beliefs."

Mr. Chalabi said that whatever language was ultimately accepted, Iraqis, at least theoretically, would be free to opt for a resolution of family disputes in civil courts, under a relatively liberal civil law now on the books

 
 
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