One month from now, chances are that Iraq’s political leaders will face this dilemma: approve a flawed and retrograde “permanent” constitution lacking adequate public support or put everything on hold for six months at the cost of vital political momentum.
There is a better approach than either of these unacceptable all-or-nothing choices mandated by the current interim constitution or Transitional Administrative Law (TAL). It is to adopt a more modest, bare-bones provisional constitution that:
‐explicitly safeguards the TAL’s essential individual rights and minority protections (especially the three-province constitutional veto);
‐deliberately leaves open certain basic disputes whose resolution is impossibly premature and practically unnecessary (notably federalism, the role of Islam, the status of private militias, and the disposition of Kirkuk); and
‐enacts desperately needed electoral reform by requiring legislative elections on the basis of local districts rather than a single nationwide constituency.
What’s more, sticking with the original plan of holding a constitutional referendum in October and legislative elections in December would sustain the vital political momentum generated by January’s elections while producing a more genuinely representative assembly.
As matters stand, Iraq’s basic inter-communal divisions remain unreachably far from the definitive resolution required by a durable constitutional settlement. The majority Shia insist on as much Islam–and as few restrictions on majority rule–as possible. The Kurds seek a degree of autonomy from their Arab neighbors amounting to de facto independence. And the Sunni minority, still coming to terms with the loss of its unjust political monopoly, remains fractured, alienated, and leaderless.
While a final settlement of such basic issues remains well beyond reach, considerable step-by-step political progress has already been made on the basis of practical accommodations and ad hoc understandings.
Consider how Shia and Kurdish legislators prudently accommodated disaffected Sunnis by adding 15 unelected representatives with full voting rights to Transitional National Assembly’s constitutional drafting committee. Recall that these self-appointed Sunni representatives did all in their power to delay and discredit the January election; and that the TAL makes no provision for this highly irregular expedient. What’s more, the Shia and Kurds took the further step of pledging that this committee, now an unwieldy group of 70, would proceed only by consensus. These extraordinary steps suggest the potential for setting aside formalities (and animosities) where necessary and the willingness to settle for proximate rather than ultimate aims where possible.
Similarly, Ayatollah Ali al-Sistani, the preeminent Shia religious leader, recently suggested another promising mid-course correction by proposing that future elections be held within each of Iraq’s 18 provinces, rather than on the basis of a single, nationwide constituency, as in January’s elections. Few Americans probably realize that Iraq’s first-ever free elections did not offer voters the choice of individual candidates running in local districts, but rather party slates of largely unknown candidates running on deliberately vague party platforms.
This reform would have several immensely beneficial effects. First, candidates would necessarily need to address concrete local issues of most concern to voters–crime, jobs, clean water, and adequate electric power–rather than the empty abstractions of identity politics. The overall result would be a more representative and responsible assembly, one that greatly reduces the immense distance between the center and the regions present since the creation of the modern Iraqi state. And it would serve as a school for federalism, a poorly understood concept among Iraq’s current political class.
Second, this measure would greatly increase Sunni representation in the 275-member assembly, now only 17 seats as a result of the electoral boycott that most Sunnis now acknowledge as a huge tactical blunder. It would also confer essential legitimacy on their elected representatives now sorely lacking by self-appointed Sunni spokesmen who represent only themselves or at best slivers of their own community. And it would advance the overall political strategy of further isolating foreign jihadists and Baathist restorationists from the bulk of Iraq’s Sunnis.
Third, elections on local lines would likely reduce the undue influence of the Shia religious parties (SCIRI, Dawa, and their allies). It is certainly no secret that the United Iraqi Alliance–a coalition anchored by the religious parties that was assembled and blessed by Ayatollah Sistani–traded on Sistani’s immense prestige to win 140 assembly seats. In many areas (especially in the south and in the countryside generally), local Shia clerics directed the faithful to vote for the “Sistani list” as a matter of religious obligation binding in conscience. This enabled the religious parties (and their Iranian patrons) to conceal their true agenda behind platitudes while posing as the authentic representatives of Iraq’s most respected figure among a confusing welter of more than 100 parties and coalitions. It very much remains to be seen whether Sistani would take on a similar role in future elections; but a backlash has already set in against the religious parties, especially in the south, owing to their Taliban-style misrule (see here and here).
How far the Transitional National Assembly has actually progressed in drafting a constitution for the looming August 15 deadline remains anyone’s guess. But there are worrisome indications that current drafts impose new and unacceptable limits on the TAL’s rights and freedoms. According to Ali of Iraq the Model, many of these rights are now being stripped of meaning by the imposition of this vague standard: “unless that [particular right] contradicts the basic values and teachings of Islam and the traditions of the Iraqi society” (scroll down for the June 30 entry). This is all of a piece with the Shia religious parties’ single most pressing concern, namely to impose “Islam” (however defined) as the sole source and yardstick for all future legislation (see here for my analysis of the TAL’s far more balanced approach). Suffice it to say that there is no public consensus in support of this radical innovation, which would effectively introduce Islamic law or sharia (as interpreted by Shia clerics, by the way) as the constitution behind the constitution.
It is by no means certain that a majority of Shia would support the imposition of such limitations on their freedoms by stealth; most evidence indicates otherwise. But Kurdish leaders have long made clear that they will not stand for the replacement of a secular tyranny in Baghdad with a religious tyranny in Najaf. And leading Sunnis, who are just now beginning to navigate Iraq’s new political landscape, are most unlikely to accept a state that presumes to interpret and impose religious truth in the name of Shia Islam.
The role of Islam in public life is just one of several basic disputes over how Iraqis will order their common life. None of these existential matters has a chance of being resolved over the next six months, assuming the Assembly opts for a six-month postponement under article 61 of the TAL. But it is certain that a time-out would result in unacceptable drift and stagnation on the political track of the two-track politico-military strategy President Bush has recently emphasized (see here and here). And it is equally certain that none of these issues actually needs to be resolved for Iraq’s fragile democracy to begin to stand on its own and fight its own corner.
What is to be done? It would be counterproductive for the U.S. to seek to derail the Iraqi constitutional process, whatever the actual state of play. But it would be helpful to remind responsible Iraqi leaders as forcefully as possible that the ongoing terrorist offensive’s true center of gravity lies in the patience and resolve of the American people; and that a constitutional train wreck or six-month time-out would be equally unacceptable under the division of responsibility that President Bush has outlined.
Iraq remains the central front in the war against the totalitarian ideology whose votaries struck last week in London. As Friday’s Daily Telegraph puts in an editorial entitled “Iraqi politicians haggle as the bombs go off,” “the more they procrastinate, the more the terrorists will take heart and Iraq’s allies wonder whether their costly commitment is worth the candle. One can only hope that, beyond the haggling, they realize the awesome responsibility they bear.”
Just so.
–John F. Cullinan formerly served as a senior foreignpolicy adviser to the U.S. Catholic bishops, focusing on international law, international religious freedom, and human rights.