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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