Monday, February 24, 2014

How Faults With Iraq’s Constitution Undermines The Country, Interview with Constitutional Scholar Zaid Al-Ali

In October 2005, 79% of Iraqi voters came out in favor of a new constitution. The document was drafted in only a few weeks however, due to pressure from the United States. While the new government it created included many basic rights like freedom of association, and the right to education and work, it also had more controversial issues like creating a new federal system. Most of these new rules were not fleshed out in the final draft however, and were to be finalized in an amendment process that has never happened. Because of those vagaries, and the lack of further legislation, every political party in Iraq claims that its position is supported by the constitution making it a source of contention rather than unity. What follows is an interview with Zaid Al-Ali, a lawyer who has worked for the United Nations on constitutional and parliamentary issues on why he thinks the 2005 constitution is a flawed document. He just published a book The Struggle for Iraq’s Future: How Corruption, Incompetence and Sectarianism Have Undermined Democracy. He can also be followed on Twitter @zalali.

1. Many countries that have written constitutions in the last several decades have had outside help and influence whether from foreign governments or international bodies such as the United Nations. In Iraq however, the U.S. had an overwhelming influence by setting the timetable, influencing the make-up of the drafting committee, and the final document. The Americans for instance, decided that there would be elections for an interim parliament in January 2005, who would then select a committee to write the constitution, which wasn’t put together until May, and their work was due by August, for a final referendum in October. Was this enough time to do all of the necessary work, and what was the overarching goal of Washington to have the document completed in just a few months?

It was absolutely not enough time.  In countries that emerge from harsh dictatorships such as Iraq, political forces and society as a whole need a lot of time to recover and to debate a set of vital issues, including what type of state they want to establish for themselves, and what relationship the state should have with various communities and with the individual.  You need to be able to have a national debate on issues like federalism, fundamental rights, the role of religion, etc.  Once again, in countries like Iraq, which emerged from a period of decades in which none of these issues could be discussed in a critical or free manner, we were absolutely not in a position to have a national debate on something like federalism by 2004 and 2005.  And if a national debate had to take place, it should have taken place over a significant period of time, and certainly not rushed.  Rushing these issues can lead to all sorts of unexpected outcomes in relation to really fundamental issues, which is far from desirable. 

Something else is that when you are intent on redesigning the state in countries like Iraq, it is advisable to do so in as scientific a way as possible.  One of the things that you would do is look into your own institutions of state and study which operate effectively and which do not.  You would study your anti-corruption framework in detail and figure out where the cracks lie.  You would also try to understand if your due process requirements are being respected in practice, and if not, if there is an institutional reason for that.  These are issues that take time, particularly in countries like Iraq where free debate and critical analysis was forbidden for decades.   Once again, to rush these issues or to just ignore them, which is what eventually happened in Iraq is to invite either unexpected outcomes or simply the continuation of practices from the previous regime, which is also what ended up happening in Iraq. 

By way of comparison, Tunisia’s new constitution took two years to draft in a very free and relatively peaceful environment.  All in all, South Africa took 7 years to draft its text.  Kenya also took that amount of time to draft its constitution.  Each country needs to decide on its own what amount of time it should take to draft its constitution; and that process should not be overtly influenced by foreign nations as was the case in Iraq. 

In terms of why Washington was so determined to finish the drafting process so quickly, I can’t really speak as to what their motivations were, and I wonder if they really understood what they were doing.  Certainly they were determined to transition as soon as possible to a fully “legitimate” according to their definition of the term, constitutional system of government that would be in place for a full legislative term.  Some analysts have speculated that the U.S. was purely motivated by domestic considerations: by insisting in August 2005 that the drafting process should come to an end immediately, they were essentially ensuring that a new permanent government would be in place before the 2006 mid-term elections.  A 6 month extension, which was allowed under the Transitional Administrative Law (TAL), would probably have meant that the government might not be formed before the mid-term elections. 

The main question however is whether they realized what a disaster they were creating and I am still unsure about that.  There is evidence that they realized that the system of government that they were creating did not reflect the majority of what Iraqis wanted, but aside from that, they will have to answer for themselves as to why they proceeded in the way that they did. 

2. The issue of Sunni representation was always a pressing one, while writing the constitution. Of the original 55 members of the constitutional committee Iyad Allawi’s Iraqi National List got 8 seats, some of which were Sunnis, and there were two other Sunnis as well. This was due to the fact that the Sunni community largely boycotted the January 2005 vote. In June 15 Sunnis were selected as permanent members, and 10 became advisers, but they weren’t approved until July, just one month before the document was to be finalized. Were the Sunni members able to get their opinions included in the constitution, and how did that affect the October referendum?

The issue of “Sunni representation” in the constitutional drafting process has been very misunderstood.  The common understanding is that after the 15 Sunnis were added to the committee, that they were not included in the discussions and were essentially ignored, which is what led to the rejection of the constitution in Sunni-majority provinces in October 2005.  The drafts that were produced by the constitutional drafting committee tell a very different story.  What we know by reviewing the drafts is that the expanded constitutional drafting committee was making progress towards a constitution in which the central government would have played a much more important role than under the TAL, the interim constitution that was drafted by US officials and two Iraqi-Americans.  It turns out that most of the Sunni and Shia Islamists who were on the constitutional drafting committee had very similar ideas about what their future state should look like: they wanted for the state to be heavily influenced by religion, and also wanted for the central government to be the dominant force in the state and not the regions and provinces. 

In the end however, because the expanded committee was unlikely to meet the August 2005 deadline, some of the parties to the process and the U.S. embassy prevented the deadline from being extended by 6 months, and shut out a large number of drafters (most of the Shia and Sunnis) from the rest of the discussions altogether.  Suddenly, once again, by tracing the evolution of the drafts, the tone of the negotiations shifted altogether in favor of a very loose federation in which the central government played hardly any role.  Then, when the elected interim parliament , which was supposed to be responsible for putting together the draft demanded to be given the right to debate and vote on the draft, they were snubbed.  Instead, Hussein Shahristani, who was deputy speaker, merely read the draft to them without giving them a chance to debate or vote on it. 

In summary therefore, its not that the Sunnis’ views weren’t taken into account; in reality, most of the drafters and most of the elected representatives of the people were totally shut out of the process and were not allowed to debate or influence the final product.  Therefore the reasons for Sunni-majority provinces rejecting the draft in the referendum and for Shiite and Kurdish majority provinces voting in favor lie elsewhere. 

3. The U.S. went from pushing for including more Sunnis in the constitutional committee, and then excluding them from the Leadership Council, which put together the final draft. Why did it suddenly change its opinion?

Because it realized that having an inclusive negotiation process in which all the “components” defined on an ethno-sectarian basis of Iraqi society are involved would mean that an extension past August 2005 would be necessary.  Constitutional negotiations are very complex, particularly in societies that are emerging from totalitarian rule.  If you want to pay an expert to write a constitution for you on his own, then that might take him just a few days.  But if you want the constitution to be the result of a deliberative, political process in which representatives of the people are involved in decision making, etc. then you need to allow them sufficient time.  And the U.S. decided that the Iraqis would not be giving sufficient time to complete the draft. 

To be clear however, it was not just the Sunnis who were excluded from the Leadership Council; in fact, a large majority of the drafters were shut out altogether.  The only parties who were still fully involved in the drafting process after the Leadership Council took control were the Kurdistan Democratic Party (KDP), the Patriotic Union of Kurdistan (PUK), and then-Supreme Council for Islamic Revolution in Iraq (SCIRI), now ISCI. 

4. Did the leading role the U.S. played in the writing of the constitution affect its legitimacy in the eyes of Iraqis?

Yes but not in the way that you would ordinarily assume.  Most Iraqis do not know what role the U.S. played in influencing the process and content of the constitution during those crucial weeks in August and September 2005.  So it is not the fact that the U.S. was involved that is the problem. 

The problem is that the U.S. skewed the process in favor of certain parties (PUK, KDP and SCIRI) which represent around 20% of the population and whose ideas on federalism were not shared by the remainder of the population.  The constitution lacks legitimacy mainly because of what it says and not necessarily because of U.S. involvement per se.  An increasing number of constitutional processes around the world have some type of foreign involvement, so it is not foreign involvement in and of itself that is the problem.  The problem is what the foreigners were doing and what impact they had on the final draft.  If U.S. involvement had been motivated by a genuine desire to bring all parties towards a negotiated solution and that enshrined a workable system of government, then there would far less to complain about.  But that isn’t what happened. 

5. Why did those three parties, the PUK, KDP and ISCI propose a federal system, and why were their ideas not popular in Iraq?  

It’s clear why the PUK and the KDP were in favor of federalism.  The Kurdish people of Iraq have suffered for a long period of time, and in reaction to that suffering pushed for more autonomy to be able to decide upon many of their own affairs.   As a minority within a much larger country, that arrangement made sense for them. 

In so far as SCIRI (now ISCI) was concerned, its much more difficult to understand.  The reason that Abdel Aziz al-Hakim gave during a speech that he gave in August 2005 was that the Shia should govern themselves in a large federal region in the south of the country as a means to benefit from the Kurdish experience, which had made significant progress in standards of living since the 1990s, but also in order to protect themselves in the context of a worsening civil conflict in 2005.  Some analysts have speculated that SCIRI was also encouraged by Iran to push for the formation of a single Shia region in the south of the country, but I don’t have any evidence to support that. 

Despite the fact that the constitution was approved by 80% of the population, the system of government as provided for by the constitution was immediately rejected by the large majority of the country’s political leaders as soon as it entered into force.  The Sadrists, Iraqiya, Iraqi Islamic Party, Dawa, the Independents, all made very harsh statements in 2006 in which they claimed that the constitution was deeply flawed.  In addition, for years, dozens of opinion polls were carried out throughout the country about what type of state Iraqis wanted, and a large majority consistently responded that they preferred a system that would keep them united (the only exception was during the worse period of the civil conflict in 2006 and 2007). 

The question then becomes why did the population vote in favor if they didn’t agree with its contents.  There are several reasons: (a) the vast majority didn’t read the text before the referendum and didn’t have a clear idea of what it provided (that is typical of constitutional referenda, not just in the Middle East but in most wealthier countries as well); (b) Shia political leaders who were opposed to the text were very reluctant to argue against the text, because of the sectarian and violent context.  SCIRI had a lot of momentum at the time, particularly in the media, and many felt that to argue against SCIRI’s position might have exposed them to accusations of being weak and not representing Shia interests.  The fact that there was rising violence (including terrorist attacks in crowded areas) at the time, made it very difficult to go against the tide, and so most kept quiet until after the referendum (including Moqtada al-Sadr); (c) in times of conflict, people’s priorities shift towards existential issues (survival, protection, separation, etc.) at the expense of those interests that would be prioritized during times of peace and stability (including corruption, fundamental rights, etc.).  Given that the conflict was worsening at the time of the October 2005 referendum, many voters were convinced by the argument that the central government should be very weak and that regions and provinces should dominate; (d) during times of transition in countries all over the world, there is always a strong tendency amongst voters to vote in favor of a proposed constitution (even one that they haven’t read) merely as an expression of a desire to move forward, and to reach some state of stability and normality. 

All those factors and others explain why the large majority of Iraqis voted in favor of the text.  They certainly did not vote in favor because they were convinced that they system of government that it provided was adequate for the country’s long term future.  

Ballots on Iraq's constitution 2005 (AP)

6. Many of the Sunni delegates were unhappy with federalism, and other ideas placed in the document. To appease them, just before the October 2005 referendum, the U.S. said that a committee would be set up to amend the constitution. That work was supposed to be done in six months, but that deadline was missed, and the committee got extension after extension until finally in June 2009 it submitted its report. Prime Minister Nouri al-Maliki also called for the constitution to be changed in 2008 and 2009, but nothing has happened. Why has there been no action been taken? 

For the same reason that no action is taken in relation to the vast majority of the points of contention between Iraq’s ruling parties (including the oil and gas law, the formation of a second chamber of parliament, etc.).  The distance between the parties is too great, they are lazy, and have very little experience in successful negotiations.  Finally, the distance between the ruled and the rulers is so great in Iraq that the various components of government and parliament do not feel that they are under any obligation to reach an agreement on any of these outstanding issues.  They would all prefer to wait for years without making any concessions rather than work to reach an agreement that would be beneficial to the people.  The people’s interests are never part of the equation. 

7. You have compared Iraq’s 2005 constitution with its previous ones that were drafted from the monarchy up to the Baathist era. You’ve argued that they all followed a similar pattern, promising general rights, but then saying that future legislation would determine the specifics. For example, they all called for an independent judiciary. How has that worked out in practice?

My criticism of the Iraqi constitution in so far as judicial independence is concerned is that the 2005 constitution is almost identical to its predecessors (including the 1970 interim constitution).  You would have thought that the drafters of the 2005 constitution would have taken the time to include some more detail about this issue.  Based on comparative practice, it is now accepted internationally that in developing countries, if a constitution limits itself to merely stating that the judiciary is independent without actually providing any detail about how that independence should be protected, then the courts are highly exposed to manipulation.  The reason for that is because the detail has to come in the form of legislation, which is typically drafted by the government; and governments around the world always try to find ways to control the courts in some way or another.  In developing countries, which usually do not have democratic traditions and customs to fall back on one of the only defenses against this phenomenon is to set out in the constitution in what circumstances a judge can be dismissed, or sanctioned, and to set out what the possible sanctions are.  Iraq’s 2005 constitution does not do any of that, leaving everything to legislation, exposing the courts to manipulation and pressure by the government. 

There is also a separate problem, which is that judges are heavily reliant on the government’s security forces for their own protection, and in an intensively violent context, that exposes them to several opportunities for pressure. 

8. The Iraqi constitution names the prime minister as the commander and chief of the security forces, and states that the parliament should approve division commanders and above, which isn’t much of a check upon the executive using those forces for its own ends. Have other post-conflict countries placed stricter controls upon their army and police, and was that ever considered in Iraq?

Yes, under the South African and German constitutions for example, there are very detailed provisions on how the military should be used, how it should coordinate with other branches of government, what procedures it should follow in specific circumstances, etc.  These matters are sufficiently important particularly in post-conflict countries to merit including significant detail in the constitution. 

In Iraq, despite the role that the military played in the decades prior to 2003, the constitutional drafters did not include any specific rules governing the military’s rules of procedure or its chain of command.  All it says is that the prime minister is the “commander in chief of the armed forces” which is extremely unusual perhaps even unique in comparative practice for a parliamentary system of government.  The constitution does not even make an attempt to explain how the prime minister should relate to the minister of defense, and what each should be responsible for.  Under our constitutional system, legislation should have been passed to clarify this issue, but needless to say, nothing has been done about this since 2005.

Normally, the minister of defense would be the political figurehead of the military, and the minister would operate and issue instructions with the parliament’s approval.  That would have been far preferable in Iraq given that the parliament, in case of partisan abuse of the armed forces, would have been able to withdraw confidence from the minister of defense without causing for the entire government to fall.  That option doesn’t exist under the current system sadly.   

Iraq's parliament being sworn into office 2006 (AP)
9. One thing the constitution seems to be specific about is that the parliament is to oversee the government through investigating its agencies, passing the budget, questioning ministers, and having the power of holding no confidence votes. The parliament has either neglected those responsibilities or been stymied. What problems does the legislature have carrying out these duties?

The parliament has several problems.  The first is that the federal supreme court, which is responsible for interpreting the constitution, and whose decisions are binding, has essentially been captured by the government.  Since 2010, the Court has essentially not issued a single decision that does not favor the government.  At the government’s instigation, the Court has issued a number of decisions that have heavily limited the parliament’s powers.  Amongst other things, the Court has found that legislation must first be approved by the government before it can be voted on.  The parliament has therefore been reduced to the status of a rubber stamp institution.  The Court also found that parliament cannot question ministers unless evidence of a specific crime has been found.  The impact of that decision was essentially to remove all political responsibility from the government vis a vis the parliament. 

A second problem is that the parliament’s political divisions also prevented the parliament to act against the government and to withdraw confidence.  Since 2005, there has been a very negative practice of forming governments of national unity, according to which virtually every party that has any parliamentary representation is represented in some form in government.  That practice makes it very difficult to muster enough support to withdraw confidence from government given that parties that would otherwise not be in government and that are not particularly ideological (to put it mildly) have a direct and personal interest in seeing the government survive.  Accountability is made very difficult under such circumstances. 

A third problem is that the parliament’s internal divisions have seriously impaired its effectiveness.  When the 2005-2010 parliament first started its work, its members of staff were seriously criticized for being incompetent, and the parliament’s administration was criticized for not giving clear instructions or terms of reference to its staff.  Hence, from 2005 to 2010, serious effort was made to train staff members, and some progress was made.  After the 2010 elections took place, many positions within the parliament were reshuffled.  For example, Khaled Attiya, who was previously the first deputy speaker and who was a member of the State of Law Coalition, was replaced by a Sadrist one of the State of Law Coalition’s most important rivals.  Many of the new occupants of powerful positions within the parliament promised not to dismiss their predecessors’ staff, advisers and experts.  Although that promise was generally kept, something perhaps more sinister was done: predecessors’ staff were kept on in their positions, but were not allowed to do any work; they no longer received any instructions and were forced to just sit at their desks and do nothing.  They found much to their dismay that the new leaders within the 2010-2014 parliament simply brought on board their own staff who sat in the same offices as those staff members who had been there since 2005, but were the only ones to receive any instructions.  Although the parliament’s staff were never particularly impressive, the little know how that had been developed from 2005 to 2010 was essentially wasted. 

Finally, and this is something that is well known to anyone who has spent any time working on this issue, the parliament is populated by incompetent and lazy MPs who have been unable to organize themselves in a convincing fashion since 2006.  I was intimately familiar with the 2005-2010 parliament, and found its work ethic very problematic.  Contacts of mine within the parliament have complained that the current parliament is even worse than its predecessor.  The government is obviously not much better, but governments always have the upper hand against parliaments around the world and that is even more the case when parliamentarians spend more time in the cafeteria than working. 

10. You have written that the federalist system set out in the constitution cannot solve Iraq’s problems, and instead it needs decentralization. Can you explain the differences between the two, and given Iraq’s history of a centralized government, are there many in Iraq pushing for it?

I actually do not have a preference between decentralization or federalism.  My preference is merely that whatever system Iraq adopts, it should be designed in a way that is grounded in a desire to improve service delivery and standards of living and to reduce corruption, inequity and injustice.  My problem with Iraq’s 2005 constitution and the system that it provides is that it was designed not with good governance in mind, but based on a desire to allow Iraq’s “ethno-sectarian communities” to protect themselves from each other.  It is a text that reinforces the mentality of separation and fear, and not one that encourages reconciliation and progress.  The 2005 constitution allows for Iraq’s provinces to merge together and form larger regions that can essentially govern themselves almost entirely.  That was a recipe for disaster and thankfully that system was never adopted.  Al-Maliki’s first government, which was formed in 2006, refused to implement the constitution because it found that the system of government that is provided for was so problematic.  The problem with that decision is that it left us without an alternative set of rules to govern our country – no constitutional system to guide our country.   

The 2005 constitution provided for a deeply flawed system of government that did not even convince the country’s most powerful politicians and so was set aside and ignore.  The consequence is that we now have no rules to govern our system of government.  The fact that the constitution has not been revised since 2005 has meant that we are totally left at the politicians’ mercy: they are making it up as they go along, and the only standard that they apply in so doing is what is good for them personally.  This is no way to run a state and we desperately need a solution to this problem.  

Many people make the mistake of thinking that federalism is a system that allows for communities or geographic areas (let’s call them “regions” for the purposes of this discussion) in a given state to govern themselves within the confines of that state.  In reality, federalism does allow regions significant autonomy in relation to specific issues, but it also works the other way: the regions’ representatives also play an important role in setting national policy (typically through a second chamber of parliament), whether in relation to issues of national importance or matters that are of importance to other regions.  One of the differences between decentralization and federalism is that decentralized “regions” do not necessarily have the constitutional right to influence national policy. 

Despite the circumstances, there are still Iraqis who favor a centralized system of government but it’s difficult to know exactly what they represent given that most people do not really have a clear idea of what federalism is, or what decentralization entails, etc.  In an ideal world, my preference would be for more authority to be granted to provincial authorities, but under current circumstances that would probably be a disaster.  Corruption is already astronomically high in the country – the more you decentralize, the more difficult it becomes for anti-corruption and audit institutions to oversee contracting and implementation of major projects at a local level.  Under current circumstances, corruption would therefore likely increase in the short term, which is something that I am very concerned about.  

11. Finally, you have argued that Iraq needs better leaders that will be committed to amending the constitution and passing meaningful laws that will help the country move forward, rather than supporting the status quo. Can you see that kind of politician emerging out of Iraq’s current situation?

Under current circumstances, that will be very difficult.  The current legislative framework heavily favors incumbents (particularly those that are in control of ministries).  There is no political party legislation to speak of, and so parties are under no obligation to report any of the income or any of the expenditure.  They don’t even have to pretend.  It’s been more than ten years now, and the ruling parties are now deeply entrenched in the state.  They have developed sophisticated methods to steal vast sums of money; they have business interests throughout the country; they have television channels, websites, various media outlets; they have developed important patronage networks as well.  It would be difficult to imagine that a group of people that does not have access to that type of money and influence could really represent an electoral threat to the ruling parties.  There have been some exceptions – there was Yousef Haboubi, who in 2009 returned an incredible result in the provincial elections in Karbala province based on his reputation for integrity, but as an individual he was not able to achieve anything.  What we need is a national campaign of people of integrity and who have a desire to change, but that would require significant support, including financial support, and its difficult to see where that would come from.  Also – and in any event – if a new coalition of Iraqis were to find a way to represent a real electoral threat to the current ruling elites, then those people better learn to defend themselves, because the politicians will not go down without a fight.  Literally. 


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1 comment:

Ali Albazzaz said...

Thank you Zaid and Joel, this is a very helpful discussion and analysis of the flaws in the current Iraqi constitution.