How Many Methods Are There to Enact a New Constitution in Iraq?

Guest Editorial

by Andrew Arato


Many commentators keep repeating a fundamentally erroneous statement, namely that Sunni part of the population unrepresented in the National Assembly is to an important extent protected in the Iraqi political process because a new constitution can be adopted only if it is not rejected by 2/3 of the voters of three, in this case Sunni provinces. The assumption is based on the provisions of the Transitional Administrative Law, the Interim Constitution currently in effect, that had been imposed by the American Coalition Provisional Authority in the Spring of 2004. Unfortunately or not, this official constitution-making method of the TAL, a document that has been repeatedly denounced by the Grand Ayatollah Sistani (who blocked its approval by the UN Security Council), is not the only one currently available to the new National Assembly where his forces will dominate.

Members of parliament might decide that they are not bound by the interim constitution. Although the TAL contains no provision for democratic decision-making, on these issues the elected government would be within its rights to engage in it. Of course, the members of parliament could simply keep the interim constitution in place. But they could also legally amend it. Or they could replace it through a series of amendments. This diversity of methods is important, because the new National Assembly in Iraq may pursue several of them simultaneously thereby reducing to insignificance broad participation conceded on only one, the official level.

The official method does involve drafting an entirely new constitution in the current National Assembly, and offering it for ratification to the electorate as a whole as well as province by province, where a majority of Iraqi voters must approve and 2/3 of the voters of 3 provinces can subvert ratification. (TAL: Art 61 B and C). It is however quite erroneous to claim as many now do that 2/3 of the National Assembly must according to the TAL approve a draft, although the assembly could (and should) still decide to set up such a rule. There is no veto provided for the Presidency Council either, as in the case of ordinary laws.

While there are no provisions for setting up a constitution drafting committee, the only reason why such a body would be difficult to established according to ethnic and political parity or proportionality different than the distribution of the assembly itself is that relevant Sunni representation in the National Assembly will be zero. Something like a creative use of the extra-parliamentary round table method, pioneered in Central Europe and South Africa may be needed to secure a preliminary constitutional agreement with significant Sunni groupings like the Association of Islamic Scholars, and groups that did well in the elections for local government.

At the other extreme there is the extra-legal but certainly democratic if majoritarian method of repudiating the TAL and its constitution-making rules, and producing new ones. The justification for this would be that the Interim Constitution is a document imposed by a foreign occupying power, never involving Iraqi consent, and thus cannot bind and constrain a freely and democratically elected constituent assembly. More or less, this used to be the position of the Grand Ayatollah Sistani, and was confirmed as a possibility by no less than Lakhdar Brahimi, the representative of the UN Secretary General. Sistani has now achieved his freely elected assembly.

Nevertheless, the elections, with the Sunni boycott, were not themselves fully democratic. The bare majority of seats achieved by the Shi'a list in the National Assembly would now make the classical revolutionary democratic road a very hazardous one to follow, since it would incite Kurdish defection as well as Sunni resistance and probably international condemnation. Because of careless talk of some members of the United Iraqi Alliance, in spite of Sistani’s own protestations, the whole majoritarian democratic path very much at home elsewhere in the world, e.g. the UK, is now indissolubly tainted with the prospect of theocracy, or the tyranny of the majority. Nevertheless, the taint of American imposition of the TAL, and the resentment of the three province veto keep even this option alive as one option of the UIA list.

In between the extremes of the official method and extra-legal democracy lie however methods of perpetuating a constitution that would be still the TAL, formally speaking. Taken far enough this approach could lead to a substantially new constitution, and this is what almost all commentators miss. According to the TAL itself, if the assembly simply fails to agree on a constitution, or if its work is rejected by the electorate of three provinces, and this could happen an indefinite number of times, new elections would be necessary in 12 or 18 months. For an indefinite period the TAL even as it now stands could remain the constitution of Iraq, de facto.

In the meantime however it could be also amended, in part or as a whole. Its amendment rule requires ¾ of the votes of the National Assembly, plus the agreement of all three members of the Presidency Council (who were picked by 2/3 of the assembly). (Art. 3A) A UIA led coalition with the Kurdish Alliance (with obvious allies) would have about 215-220 votes, well over the required ¾, and all they would have to make sure is to elect in advance by 2/3 a friendly three member Presidency Council amenable to such purpose. Such an amendment process may simply improve upon the TAL, currently much too sketchy and even contradictory to be of use for the longer run.

But the approach could go so far as to replace the TAL altogether by an entirely new constitution, along with a new amendment rule, and a new constitution making procedure or no new constitution making procedure at all if the ruling coalition so wishes. This is so in spite of the fact that the TAL has some supposedly unamendable provisions. The careless framers forgot to make Art 3A, the amendment rule itself unamendable, and after it were suitably amended, everything else could be changed as well.

These issues sound technical, but in fact they are of deep political significance. The new coalition accordingly does not really have to fear Sunni rejection of its constitutional product. It is in the position to offer only token representation to the Sunni, or none at all, and amend the TAL while it produces a new constitution. In case of rejection by three provinces, the TAL would stay as the new constitution. Or, alternately, serious participation could be offered to groups like the Association of Islamic Scholars and the Iraqi Islamic Party in the National Assembly committee writing the new constitution, as I once suggested here. Even in that case, amending the TAL could be held as a club over the new committee, its co-opted Sunni members, as well as the voters of Sunni provinces. In principle two constitutional projects could proceed together with the authentic justification that the TAL needs revision
and relegitimation at the very least.

There are answers to the dilemma however, technical and political. A short time period should be set up for the necessary partial revision and relegitimation of the TAL, probably a period of six or eight weeks. One thing that should be changed is the ratification rule, since neither a three province veto nor the possibility of indefinite self-perpetuation of an interim constitution are desirable. Then, a moratorium should be declared on all further amendments to the TAL, while a genuinely pluralistic constitutional committee does its work on the new constitution and is allowed to reach consensus.

Of course the key issue remains setting up a constitution drafting committee where the Sunnis will be adequately represented. The only reason why such a body would be now difficult to establish according to ethnic and political parity or proportionality different than the distribution of the assembly itself is that relevant Sunni representation in the National Assembly may now be actually zero. Something like a creative use of the extra-parliamentary round table negotiations, pioneered in Central Europe and South Africa may be needed to secure a preliminary constitutional agreement with significant Sunni groupings like the Association of Islamic Scholars, and parties like the Iraqi Islamic Party that did well in the elections for local government.

Of course the National Assembly would have to retain the right to to debate and alter any such prior informal agreement. Hopefully, however, the majority forces would adhere to promises and commitments made to the minority. It may be that this is the only way that participation by all major political forces in Iraq could lead to the desirable conclusion: the achievement of a new and legitimate constitution free of either American or Iraqi majoritarian imposition.

The author is Professor at the New School in New York