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Iraq's Constitutional Challenge
Middle East Report N°19
13 November 2003

EXECUTIVE SUMMARY AND RECOMMENDATIONS

As attacks against the occupying forces and suicide bombs against civilian targets intensify, the need for a new political formula that will increase the powers, legitimacy and representative quality of Iraqi governing institutions is becoming more urgent than ever. The response to date, reflected in United Nations Security Council Resolution 1511, has been to tie the transfer of the exercise of sovereignty to the drafting of an Iraqi constitution, its adoption in a referendum and ensuing national elections.

This logic presents the unenviable choice of either unduly rushing the constitutional process, or unduly postponing the transfer of political power. Both would be destabilising. The transfer of authority is pressing, as is the broadening of the Iraqi Governing Council’s political base. But the constitution-making process must be done deliberately or it will be done poorly, and dangerously. Decoupling the immediate governance issue (the transfer of powers to a broader based Iraqi government working under a transitional mandate) from the constitutional process (the creation of a permanent democratic system) is the best pathway toward a stable Iraq.

As to constitution-making, all indicators on the ground are that this process will require considerable time if it is to succeed. Interviews with members of the Interim Governing Council and the Constitutional Preparatory Committee as well as other political actors in Iraq make clear that Iraqis are only just beginning to contemplate and discuss the desired content of, and the steps required for, a new constitution.

Iraqis are sharply divided over the most fundamental issues relating to the nature of their future state and the governmental system that is to rule it. One of the principal sources of discord involves the distribution of power between the centre and the regions: whether Iraq should be a unitary or federal republic; if it is the latter, what the boundaries of the different regions would be; and, in particular, whether the Kurdish region will be defined ethnically or territorially and whether it will include Kirkuk. Equally sensitive is the question of what kind of guarantees of religious freedom will be incorporated into the constitution and what role Islam will be given in the system of government.

The first battle in the preparation of a new constitution has flared in the debate over how to write one. Political actors have already begun to raise procedural demands as a means of tilting the eventual substance of the constitution in their favour. Iraq’s most senior Shiite cleric, Grand Ayatollah Ali Sistani, has called for direct elections to a constituent assembly, which would likely result in a Shiite-dominated assembly. The Kurds have expressed a preference for a careful selection of constitution drafters, hoping that such a procedure will compensate for their smaller numbers and allow them to capitalise on their comparative advantage – a thorough familiarity with constitutional intricacies. The Iraqi National Congress, a group that has had over a decade in exile to prepare itself for a role in a new Iraq but has yet to demonstrate significant popular support among Iraqis, has argued that elections to a constituent assembly would be “too unwieldy” and that the Interim Governing Council should select the drafters.

This battle offers only a glimpse of the profound issues that Iraqis must confront before reaching a national consensus on a vision for their country. It is, therefore, important that the debate over the constitution, currently limited to a small circle of the new political and intellectual elites, be broadened to offer an opportunity to larger sectors of Iraqis to weigh in on matters that will have an enduring impact on their own lives and those of future generations.

As to the immediate governance issue, pressures have been building rapidly in the U.S. and in Iraq to accelerate the transition toward genuine Iraqi rule. This was first reflected in United Nations Security Council Resolution 1511 which, embodying a U.S. preference, requested by 15 December 2003 from the Interim Governing Council (which presently ‘embodies’ Iraqi sovereignty but does not exercise it) a precise timetable and program for a constitution to be drafted and elections to be held under it, on the premise that only a permanent constitution could give Iraq the legitimate government it needs to enjoy full sovereignty.

Unfortunately, the protracted political bargaining at the Security Council has translated into barely perceptible changes on the ground, with UNSCR 1511 doing little or nothing to increase the legitimacy or powers of the Interim Governing Council; transfer civilian authority from the CPA to the UN; or come up with a realistic constitutional time-frame - all steps that are necessary to try to stabilise the situation. For the U.S. and the international community as a whole, it is back to the drawing board.

Regardless of the chosen political formula, the current violence is likely to continue, the outcome of a rapid regime change that has deprived many of previous positions of power and privilege and of an occupation that has both stirred nationalistic and religious feelings and become a magnet for foreign militants. But there are political steps that can and should be taken to strengthen the legitimacy of Iraq’s leaders, co-opt currently estranged political, tribal and religious groups, lessen the feeling of foreign occupation and maximise the prospects of producing a legitimate and viable Iraqi constitution. They should be based on the following principles:

  • The immediate question of governance should be decoupled from the process of putting in place a permanent constitution.

  • The UN should be given primary authority and responsibility for overseeing both the transfer of governing authority to Iraqi institutions and the constitution-making process.

  • On governance, the UN should oversee the process of broadening the Interim Governing Council – by elections if possible, by appointment after wide consultation if not - to include social and political forces that are either not represented or under-represented (including followers of Muqtada al-Sadr, and representative of Sunni tribes).

  • The expanded Interim Governing Council should become a Transitional Government of National Unity which, working through its appointed cabinet, would exercise (as distinct from merely embodying) Iraqi sovereignty on a wide, and increasing, range of issues including budgetary management, social services, education, economic reconstruction, trade and investment and foreign relations.

  • Iraq’s constitution-making process must begin to move forward, but at a deliberate pace and in a transparent and consultative manner, with an effective mechanism both to produce a workable constitution and to endow it with the necessary legitimacy.

The primary focus of this report is on the challenge of constitution-making, given the difficulty and complexity of the issues involved. In an earlier report   we addressed the question of immediate governance, arguing for a three way division of power between the Coalition Provisional Authority, the UN and the Interim Governing Council, and that approach is further supported here. In the present report we canvass options, but do not reach concluded views about, the most appropriate method for achieving both a more broadly representative government and an effective constitution-making process. More consultation, under the aegis of the UN, is required to determine what is most acceptable, and achievable, in both areas.

As this report goes to press on 13 November 2003, the latest indications are that Washington has broadly accepted the need to decouple governance and constitution-making, but that it is no closer than before to accepting a wider oversight role for the UN in either area. Several options are to be the subject of further consultations between CPA head Paul Bremer and the Interim Governing Council. They include elections in the first half of 2004 for a body that would both appoint a transitional government and act as a constituent (ie. constitution-writing) assembly or, alternatively, immediate efforts to transfer power to a revamped and broadened Interim Governing Council acting as a provisional government until a constitution is drafted.  As the U.S. Administration moves forward, it will be important that it not rush into a decision, but rather keep an open mind on the full range of options canvassed here.  This is its second chance to get it right; there may not be a third. 

The occupying powers have a continuing responsibility to provide Iraqis with a secure environment in which orderly government can be conducted, consultations on the constitutional process held nationwide and elections organised safely. Because the constitution-making endeavour is and should be a strictly Iraqi-owned project, the U.S. and other states should resist the temptation of interference or, worse, micro-management. Most importantly, Iraqis should be free from the kinds of unhelpful pressures – in the form of demands for unrealistic timetables and deadlines – that threaten to undermine not only the constitutional process but, through it, the future stability of the country.

RECOMMENDATIONS

To the United States, Other Coalition Members and the UN Security Council:

1. Adopt a new Security Council Resolution that would:

(a) decouple the transfer of power to a transitional Iraqi government from the process of drafting a permanent constitution, setting realistic timetables for each; and

(b) transfer from the Coalition Provisional Authority (CPA) to the UN primary authority and responsibility for overseeing both processes.

To the (newly constituted) United Nations Mission in Iraq:

2. Oversee the process of political transition by, in particular, as soon as possible expanding the Interim Governing Council into a broad-based Transitional Government of National Unity, to include social and political forces that currently are either not represented or under-represented.

3. Accomplish this expansion by the method which best satisfies criteria of acceptability, practicability and timeliness, whether this be:

(a) local and functional-constituency elections;

(b) nationwide elections;

(c) a broad gathering of Iraqi delegates representing a range of social and political forces from around the country tasked with appointing new members;

(d) selection of additional members by the UN mission itself; or

(e) some combination of these elements.

4. Oversee the adoption of a procedure designed to produce an Iraqi Constitution which will best ensure its ultimate workability and acceptability, considering as options:

(a) direct elections to a Constituent Assembly (time-consuming, but likely to improve popular acceptance of the product);

(b) appointment of a drafting committee whose product would be submitted to a popular referendum (saving time and resources, but which may diminish long-term popular acceptance of the product); and

(c) some process embodying elements of both selection and election.

5. Encourage Iraqi political parties, civil society organisations, professional associations and institutions to launch internal and public debates about key constitutional questions, and encourage the Iraqi media to cover the constitutional process aggressively and constructively.

Baghdad/Brussels, 13 November 2003


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