Arato Guest Editorial: The Iraqi Constitution

The Iraqi Constitution: A Modest Proposal

Andrew Arato

Iraq is on the verge of a disaster that is ultimately of our making. The United States has imposed a political process on Iraq characterized by the exclusion of the main representatives of militant, and organized actors fully capable of acting on their own behalf. If elections are held now the constitution-making National Assembly will dramatically under-represent Sunni Arab minority, many of whom are already “negotiating” with weapons in hand.

If elections were postponed however, it is the the Shi’ite Arab majority that might very will explode, and with considerable justification. They too, led by the Grand Ayatollah Al-Sistani, have regarded the imposed process and the delay of free elections with anger and suspicion.

The obvious problem is that a legitimate, new constitution in a divided society cannot be made except with the full participation of all major, potentially contentious groups of the country. Iraq missed out on a Hungarian- or South African-type Round Table that could prepare such participation, and now free elections alone can produce the partners in constitution making. But the results of the elections are likely to be seriously distorted because of the insurrection, even assuming that the Shi’ite majority is capable of guarding against electoral fraud and manipulation on the part of the interim government.

Changing the mistaken, single district electoral law might have been the most useful suggestion for avoiding catastrophe, but it is now unfortunately too late. There are, however, alternatives once a constitutional National Assembly is elected that would deal with the same problem of regional or ethnic or party-political under-representation as long as that representation does not drop to zero. The most obvious one is setting up a constitution drafting committee based on party parity, and a qualified majority rule. Constitutions are not actually drafted by plenary sessions, here the probable locus of misrepresentation, but parliamentary committees where that representation can be corrected. I worked on constitution-making in Hungary 1994-96, and in particular on a scheme by which a 75 % governmental majority was greatly reduced to give real participation rights to the opposition, on the drafting committee level. Parliament could only vote on drafts that came out of a committee in which there was almost parity among 5-6 parties. Something like this, less formally but more successfully was done in Spain in 1977.

Let us assume for the sake of argument a National Assembly with 60% for the Shi’ite led block (The Iraqi United Alliance), 20% for the Kurdistan List and 10% for a combination of various authentic Sunni Arab lists, 5% for the governmental list of Allawi, and 5% for various other groupings. In this case, a 15-person committee could be set up having 3 expert members for each of these groupings, with the requirement that positive decisions (preferably on single clauses) be taken by 12 out of 15 members. The majority would still be protected, since nothing could be adopted without its plenary votes. The Kurdish minority could be protected too if in addition the rule were adopted that a final draft requires the support of 80% of the members of the National Assembly.

The combination of these provisions would be preferable even for the Kurds to the three-province veto available in the current interim constitution, the Temporary Administrative Law. As that poorly drafted and hastily imposed document is written, a simple parliamentary majority can apparently adopt a new constitution, while the negative vote of 2/3 of merely three provinces--hence possibly as few as 1/10 of the populatio--can block ratification. This arrangement is entirely unstable, and the leaders of the Shi’ite majority have never accepted it. They could very well repudiate it along with all other restrictions originally imposed by the occupying power.

There is a desperate need therefore to negotiate new and legitimate but less crippling counter-majoritarian limitations in constitution making. There is an even more obvious need for the leaders of the majority to clearly signal their intentions right now to undertake such negotiations after the elections.

Andrew Arato
Professor
The New School University