Agreeing to Disagree in Iraq

The New York Times

THE completion of Iraq’s draft constitution, which will be submitted to the people for ratification in October, should have been an occasion for celebration. As most Americans are aware, it has not been. But while much of the criticism has focused on such areas as women’s rights, federalism and the role of Islam, such concerns are largely misplaced. In fact, the text strives to balance democratic equality with the Islamic values that are popular with many Iraqi voters, and it sketches a workable if vague compromise on power-sharing between the center and the federal regions.

The major problem is one of who is agreeing, not what they have agreed on. The flawed negotiations of recent weeks, driven at breakneck pace by American pressure to meet an unnecessary deadline, failed to produce an agreement satisfactory to the Sunni politicians in the talks. It appears that the draft will be put before the people with their strong disapproval. The paradoxical result is a looming disaster: a well-conceived constitution that, even if ratified, may well fail to move Iraq toward constitutional government.

Despite the Sunni recalcitrance and Shiite inflexibility that marred negotiations, the proposed constitution is a work of which Iraqis could justifiably be proud. For example, some leaked early drafts expressly endorsed the Shiite clerical establishment and promised that Islamic law would trump equality if the two should collide. The final version, however, is far more egalitarian, guaranteeing the equality of all Iraqis before the law regardless of sex, religion or ethnicity. It also ensures that women will, initially anyway, constitute a quarter of the national legislature, a far higher percentage than in our own Congress nearly a century after women’s suffrage.

Yes, as some critics point out, the text certainly reflects many of the Islamic preferences of those who elected the majority Shiite political coalition. And it prohibits laws that contradict “the provisions of the judgments of Islam.” But it simultaneously bans laws that contravene “the principles of democracy” and the fundamental rights guaranteed by the constitution. This innovative formulation goes far toward establishing Islamic and democratic values on equal footing – more so than any other constitution in the Islamic world. In a similar vein, the draft confers on Iraqis all the rights contained in international agreements that Iraq has signed, provided these do not contradict the principles of the constitution itself.

The strategy of deferring tricky questions for debate by future legislators and judges, characteristic of constitutional processes wherever there is deep disagreement, carried the day on issues like family law and the federal constitutional court. The draft specifies only that the court will be composed of secular judges as well as experts in Islamic and general law, kicking the details down the road to the legislature. This failure to come to a specific resolution may seem disappointing, but it was the best option under the circumstances. The stakes involved in staffing the high federal court are enormous, not only because it will rule on questions of Islam and democracy, but also because it will be a key venue for addressing the most complex and underspecified aspect of the constitution: the federalist balance between the central government and the federal regions and individual governorates.

In this question of balance lies the real problem with last week’s non-compromise. The term federalism first entered the Iraqi context as a politically acceptable way of preserving Kurdish autonomy in the northern regions while maintaining the legal unity of the new Iraqi state. Until a few weeks ago, federalism negotiations were always about the balance between the Kurds’ regional government and the federal authorities in Baghdad, with distribution of oil revenues the biggest issue. Ultimately, a formula for sharing Iraq’s only major asset was achieved, with the center exercising administrative control over existing revenues “with” the regional or local authorities.

Unfortunately, as negotiations on the draft constitution reached the final stage, under extraordinary pressure from Washington on the Iraqis to meet the Aug. 15 deadline for completing the draft, a new wrinkle entered the federalism debate. Abdul Aziz al-Hakim, leader of the Supreme Council for the Islamic Revolution in Iraq, one of the two largest Shiite parties, suddenly insisted that as many of Iraq’s 18 governorates as desired to should be permitted to unify into a region of their own, with all the self-governing privileges of the Kurdish north.

It is likely that at first this demand was nothing more than a negotiating tactic, intended to enable the nine overwhelmingly Shiite provinces in the south to reap greater advantages in the distribution of oil money. After all, southern Shiites have none of the ethnic or linguistic markers of national identity that distinguish Kurdish from Arab Iraqis, and there is scant evidence of any popular separatist movement in the south. Regardless, the argument had the air of fairness, since no one wanted the written constitution to give the Kurds asymmetrical federal power.

The trouble with the Shiite demand for their own mega-region, even if it was a bluff, was what it meant for Sunnis in the oil-poor center of the country: the prelude to a possible breakup of the country that would leave the middle of the country with no oil and so no visible means of support. Anyone living in the center would have felt similarly – the rebellious Shiite cleric Moktada al-Sadr, whose constituents mostly live in Baghdad, immediately opposed the demand, too.

But the Sunnis were particularly sensitive, because many of them still fear that the American invasion was intended to split the country among the Kurds and Shiites. Worsening matters was a constitutional provision that would have banned former Baath Party members from higher government office, potentially excluding many powerful Sunnis from future positions of influence.

The Shiites’ federalism demand and the de-Baathification provision gave the Sunni negotiators more than enough reason to balk. They were in a tough position. They had been appointed to the drafting committee in a spirit of conciliation despite the Sunni population’s self-destructive boycott of the federal elections in January, and most lacked the sort of experience in negotiating that their Kurdish and Shiite peers had gained in successive rounds of constitutional talks. After two of the Sunni participants were assassinated by extremists last month, the rest became especially wary of looking weak.

MEANWHILE, their putative Sunni constituents, when not actively sympathetic to the insurgency, were experiencing sticker shock when looking head-on at the realities of federalism. It had taken two years for most Shiite Iraqis to begin to embrace the idea of federalism, and it was never realistic to expect Sunnis to undergo the same process of resigned acceptance in a matter of weeks.

Yet just as the train of Sunni rejectionism was gathering momentum, American insistence on meeting an arbitrary deadline was hurtling in the other direction. President Bush’s personal intervention – he called Mr. Hakim late last week to ask for Shiite concessions and more talk – was a case of too little too late, and in any event conflicted with the message of time pressure that the Americans had been pushing for months. And when the Shiites and Kurds chose to send the constitution to the public without reaching an agreement with their Sunni partners, the latter had little choice but to publicly condemn the process and the draft.

In the end, placing Sunnis on the constitution committee despite the electoral results in January, then pressuring them to do a deal, was an approach that backfired: ignoring them when their views could not be reconciled sent a strong message to average Sunnis that politics is useless if you are in the minority.

Although things look bad today, the game is not yet quite over. Should the constitution be rejected on Oct. 15, everyone can head back to the negotiation table and try again. In fact, the worst outcome might be a passage of the draft despite widespread rejection by Sunni voters. While it is apparently too late to change the text, Shiites and Kurds can still reach out to Sunni voters and try to convince them that they would flourish under the constitution. This would require a few public concessions, including commitments not to form a southern mega-region that leaves the impoverished Sunnis trapped between de facto Shiite and Kurdish states.

A constitution is just a piece of paper, no better than the underlying consensus – or lack thereof – that it memorializes. If Iraq adopts a constitution that reflects a profound and unresolved national split, violence and eventual division of the nation will follow. Ordinary Iraqis and American soldiers will be the losers. So will the ideal of constitutional government.

Noah Feldman, a law professor at New York University and a fellow at the New America Foundation, was a senior adviser for constitutional law to the Coalition Provisional Authority in Iraq.

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