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The Iraqi Constitution: A Referendum for Disaster
By Phyllis Bennis
Institute for Policy Studies
Thursday 13 October 2005
The constitutional process culminating in Saturday's referendum is not a sign of Iraqi sovereignty and democracy taking hold, but rather a consolidation of U.S. influence and control. Whether Iraq's draft constitution is approved or rejected, the decision is likely to make the current situation worse.
The ratification process reflects U.S., not Iraqi urgency, and is resulting in a vote in which most Iraqis have not even seen the draft, and amendments are being reopened and negotiated by political parties and elites in Baghdad as late as four days before the planned referendum.
The proposed constitution would strip Iraqis of future control over their nation's oil wealth by opening all new oil exploration and production to foreign oil companies.
The imposition of federalism as defined in the draft constitution undermines Iraqi national consciousness and sets the stage for a potential division of Iraq largely along ethnic and religious lines, with financial, military, and political power devolving from the central government to the regional authorities. All groups risk sectoral as well as national interests.
Human rights, including women's rights, individual political and civil rights, economic and social rights, religious rights, minority rights, all remain at risk.
Instead of balancing the interests of Iraq's diverse population by referencing its long- dominant secular approaches, the draft constitution reflects, privileges and makes permanent the current occupation-fueled turn towards Islamic identity.
The Bottom Line
Constitutions can play a crucial role in founding and unifying new or renewing states; Iraq is no exception, and in the future drafting a constitution could play a key part in reunifying and strengthening national consciousness of the country. But this process has been imposed from outside, it is not an indigenous Iraqi process, and the draft constitution being debated is not a legitimate Iraqi product. Iraqis are still suffering under conditions of severe deprivation, violence, lack of basic necessities including clean water, electricity, jobs - crafting a new constitution does not appear high on their agenda.
The existing process of ratifying the new constitution is far more important to the Bush administration than it is to the majority of people of Iraq. Whether the proposed constitution is approved or rejected on Saturday, it is a process and a text largely crafted and imposed by U.S. occupation authorities and their Iraqi dependents, and thus lacking in legal or political legitimacy. The most important reality is that the draft does not even mention the U.S. occupation, and neither ratification nor rejection of it will result in moving towards an end to occupation. None of the broad human rights asserted in the draft include any call to abrogate the existing laws first imposed by Paul Bremer, the U.S. pro-consul, and still in effect.
Whether it is accepted or rejected, it is likely to worsen the insecurity and violence facing Iraqis living under the U.S. occupation, and to increase the likelihood of a serious division of the country. If it passes, over significant Sunni (and other) opposition, the constitution will be viewed as an attack on Sunni and secular interests and will institutionalize powerful regional economic and military control at the expense of a weakened central government. Its extreme federalism could transform the current violent political conflict into full-blown civil war between ethnic and religious communities. If it fails, because Sunnis backed by significant secular forces, are able to mobilize enough "no" votes, the result could be a collapse of the current assembly's already weak legitimacy and capacity, and cancellation of the planned December elections. In either event, it is likely that resistance attacks will increase, not decrease. And certainly the greater violence of the U.S. military occupation will continue.
From the vantage point of the Bush administration, a "yes" vote, however slim the margin and however dubious the legitimacy, validates the claim that the occupation is setting the stage for "democratization" in Iraq; this explains the huge investment of money, political clout, and the personal involvement/interference of Ambassador Zalmay Khalilzad in the drafting process. If the White House was looking for a fig leaf to cover troop withdrawals, this would be it. But there is no indication there is any such interest in beginning to bring the troops home, particularly since the referendum is unlikely to lead to any diminution of violence.
From the vantage point of the peace movement, the key issue, like that during the elections, remains that of Iraq's sovereignty and self-determination. Whatever we may think of this draft constitution, it has been essentially imposed on the Iraqi people by U.S. occupation authorities, and as such it is not legitimate. We may like parts of this draft, we may disagree with some future Iraqi-led constitutional process - but our obligation must be to call for Iraqis to control their own country and their own destiny. Once the U.S. occupation is over, and Iraqis reclaim their own nation, we will continue to build the kind of internationalist ties with women's, labor and other civil society organizations fighting for human rights in Iraq, as we have with partners in so many other countries. But while the U.S. occupation is in control, our first obligation is to work to end it.
The Referendum on the Draft Constitution
Saturday's referendum marks a key stage in the process of implementing the U.S.-designed, U.S.-imposed political process designed to give a "sovereign" gloss the continuing U.S. occupation. The process was set in place and pushed to completion by each successive U.S.-backed occupation authority in Iraq. Initial U.S. reluctance to hold early elections was overcome by pressure from Shia leader Ayatollah al-Sistani; while his support insured widespread Shia backing for the political process, it also guaranteed even greater opposition from Sunni and some secular forces.
The Bush administration has invested a huge amount of political capital in insuring the "success" of the constitution process, sacrificing for the actual content of the draft document to insure that something, almost anything, that could be called a constitution will be endorsed by a majority of Iraqis. The U.S. ambassador to Iraq, Zalmay Khalilzad, has played an active and coercive role in pushing Iraqi political forces to participate and make concessions, and in the actual drafting of the document. The U.S. goal is to justify the claim that Iraq is "moving towards democracy" and that the post-invasion, occupied reality of Iraq in 2005 is somehow equivalent to the experience of the United States at the time of the drafting of the U.S. constitution. While numerous politicians, pundits and mainstream journalists routinely refer to the constitution's approval as the "necessary step towards ending the U.S. occupation once and for all," it actually does nothing of the sort. Despite asserting the rhetorical claim of "sovereignty" and "independence" for Iraq, the constitution as drafted makes no mention of the U.S. occupation. Even the "transition" section, while insuring the continuation of the "de-Baathification" process, support for former political prisoners and victims of terrorist attacks, and other contemporary concerns, there is no mention of the presence of the 150,000 or so U.S. and coalition troops occupying the country, and certainly no call for them to go home. The U.S.-controlled political process violates the Geneva Convention's prohibitions on an occupying power imposing political or economic changes on the occupied country. At the end of the day, the constitution leaves the U.S. occupation intact and unchallenged.
The Voting Process
There has been large-scale opposition to the draft constitution, particular from key elements of the Sunni population. In a U.S.-prodded effort to "get the Sunnis on board," changes were negotiated between one Sunni party and the constitutional committee. Just three days before the vote, on October 12, they agreed to two changes - allowing the constitution to be amended by the new parliament scheduled to be elected in December, and limiting the "deBaathification" process to those former members of the Baath party accused of committing crimes. The announcement may persuade some additional Sunnis to vote, rather than boycott, or even to support rather than reject the constitution. But the Iraq Islamic Party is only one, and by far not the most influential, of the many Sunni-dominated political forces in Iraq, and it is unclear how influential they are or how significant the changes will be.
If the voting resembles something close to an accurate referendum ("free" and "fair" are not even possibilities, given the dominance of U.S. control of the drafting and conducting a vote under military occupation) the current draft constitution is likely, though not certain, to be approved by a small majority of Iraqi voters. It remains unclear, even with the new changes, whether the majority of the Sunni population will participate and likely vote "no" on the draft, or will boycott the referendum altogether. It also is uncertain how many secular Iraqis of all religions and ethnicities may reject the constitution. There are clear indications that most Iraqis believe the constitution has been drafted in a process from which they are largely excluded; international news outlets report that most had still not seen the text only days before the referendum.
Control of Iraqi Oil
The major debates between Iraq's ethnic and religious communities, as well as between secular and Islamic approaches, sidelined any debate over crucial economic, especially oil, policy decisions in the constitution. The draft asserts that "Oil and gas is the property of all the Iraqi people in all the regions and provinces," and that the federal government will administer the oil and gas from "current fields" with the revenues to be "distributed fairly in a matter compatible with the demographic distribution all over the country." But that guarantee refers only to oil fields already in use, leaving future exploitation of almost 2/3 of Iraq's known reserves (17 of 80 known fields, 40 billion of its 115 billion barrels of known reserves), for foreign companies - because the next section of the constitution demands "the most modern techniques of market principles and encouraging investment." Further, Article 11 states explicitly that "All that is not written in the exclusive powers of the federal authorities is in the authority of the regions." That means that future exploration and exploitation of Iraq's oil wealth will remain under the control of the regional authorities where the oil lies - the Kurdish-controlled North and the Shia-dominated South, insuring a future of impoverishment for the Sunni, secular and inter-mixed populations of Baghdad and Iraq's center, and sets the stage for a future of ethnic and religious strife.
While the specifics of oil privatization are not written into the text of the draft constitution, they are consistent with the proposed Iraqi laws announced in August 2004 by the U.S.-appointed interim Prime Minister Iyad Allawi. He called for private companies, including foreign oil corporations, to have exclusive rights to develop new oil fields, rather than the Iraqi National Oil Company, as well as at least partial privatization of the INOC itself, thus essentially selling off Iraq's national treasure to the highest foreign corporate bidder.
The division of Iraq into three major ethnically- or religiously-defined regions or cantons remains a long-standing fear of many Iraqis and many people and governments across the region and around the world, and the most important basis for opposition to the draft constitution. In historically secular Iraq, the shift in primary identity from "Iraqi" to "Sunni" or "Shia" (although Iraqi Kurdish identity was always stronger) happened largely in response to the U.S. invasion and occupation; it does not reflect historical cultural realities. The draft constitution promotes not just federalism as a national governing structure, but an extreme version of federalism in which all power not specifically assigned to the central government devolves automatically to the regional authorities - setting the stage for a potential division of Iraq largely along ethnic and religious lines. The draft anticipates a weak national government, with financial, military, and political power all concentrated within regional authorities. The proposed constitution states directly that all powers - military, economic, political or anything else - "except in what is listed as exclusive powers of the federal authorities" are automatically reserved for the regional or provincial governments. In all those areas of regional power, the provincial governments are authorized to "amend the implementation of the federal law in the region" meaning they can ignore or override any constitutional guarantee other than foreign affairs or defense of the borders.
Besides the economic/oil conflict, this means that regional (read: religious and/or ethnic) militias accountable to political parties and/or religious leaders will be given the imprimatur of national forces. The process has already undermined Iraqi national consciousness, and sets in place risks for both national and, ironically, sectoral interests affecting each of the groups - even the most powerful.
Iraq's Shia majority (about 60%) are the dominant force in the existing government and security agencies, and in alliance with the Kurds, dominate the constitutional drafting process. The constitution is widely understood to favor their interests, and by instituting a semblance of majority rule and according to some sources by privileging religious power within the government and court systems, it does so. But despite recent turns towards religion, many Shia remain very secular, and not all Shia want to institutionalize religious control in either regional or national governments. The federalism provisions, including the potential to establish a Shia-dominated "super-region" in the nine oil-rich provinces of the south, is also a favorite among many Shia. However, the extreme federalism has the parallel effect of largely constraining Shia control to the southern areas (however oil-rich) where they form the largest majority population, thus limiting Shia influence in the country overall. Many Shia live in Baghdad (actually the largest Shia city in Iraq) and other mixed areas outside the southern Shia-majority region. The revered Shia leader, Ayatollah Ali al-Sistani, has spoken strongly against dividing Iraq, but the constitution sets the groundwork for exactly that.
Iraq's Sunni population is dominant in small areas in central Iraq including Baghdad and its environs. With the constitution's strong focus on building regional economic, political and military power, the Sunnis as a community stand to lose the most. With major economic power - read: control of oil income - resting with the regional governments, the Sunnis will suffer because the area they dominate in central Iraq is devoid of oil resources. (See "Control of Iraqi Oil" above.) Following the large-scale Sunni boycott of the June 2005 election, they are underrepresented in the national assembly, and have faced the largest proportion of exclusion from jobs, the military, and the government under the "deBaathification" process. Last-minute changes to the draft constitution, including limits on deBaathification may pacify some Sunni anger, but is unlikely to result in full-scale proportional involvement and empowerment in the post-referendum political processes.
Iraq's Kurdish population, about 20%, is largely (though not entirely) concentrated in the northern provinces. They have the longest history of a separate ethnic/religious identity of any of Iraq's major groups, and their search for independence or autonomy has long roots, strengthened by years of oppression by various central governments in Baghdad. Iraq's Kurdish leaders are the closest allies of the U.S. in Iraq, having provided support to the invasion and occupation even before the U.S. military attacks began. Because of U.S. protection during the 12 post-Desert Storm sanctions years, the Kurdish region also had access to more money (through an intentional distortion of the oil-for-food distribution of Iraq's oil funds), international ties through open borders to Turkey and beyond, and the development of U.S.- and other western-backed civil society institutions than any other sector of Iraq. They are by far the best prepared and the most eager for control of regional oil income (their zone includes rich northern oil fields, especially if they end up incorporating the once-Kurdish but now overwhelmingly mixed area around Kirkuk) and a weakened central government. Their regional militia, the pesh merga, are also by far the most powerful of any Iraqi military force. Some Kurdish forces, however, are already critical of the draft constitution because their oil-rich three-province region would be dwarfed by the even more oil-rich Shia-dominated nine-province region in the south.
Secular Forces -
Along with Palestine, Iraq was historically the most secular of all Arab countries. The draft constitution, while vague in many details, certainly lays the groundwork for a far greater role for religious authorities in governmental and judicial institutions. Many secular Iraqis, as well as Christians, are dismayed by the privileging of Muslim clerics within the constitutional court, for example, as well as the regional empowerment that allows local/regional governments to choose sharia, or Islamic law, as the basis for some or all of its court jurisdiction rather than secular laws.
Religion and Human Rights
Officially the draft constitution includes far-reaching protections of human rights, including a wide range of political and civil rights, and explicitly women's rights, saying that says Iraq will "respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism." Economic, social and cultural rights are explicitly protected in language far stronger than that of the U.S. constitution and Bill of Rights, or that of most other countries. But there is contradictory language as well. The draft states that "(a) No law can be passed that contradicts the undisputed rules of Islam. (b) No law can be passed that contradicts the principles of democracy. (c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution."
Whether basic freedoms will trump Islam or vice versa, and crucially, who will decide, seems a dangerous risk. Ultimately, instead of balancing the interests of Iraq's diverse Muslim majority with its once-dominant secular, the draft constitution reflects, privileges and makes permanent Iraq's current occupation-fueled turn towards Islamic identity.