IT ONLY LOOKS DEAD

Don’t write the obituary for Iraq’s constitution just yet.

(From the New Republic Online, August 15, 2005)

By Larry Diamond

Iraqi’s failure to complete a constitution by August 15 is a blow to the country’s prospects for political stability and democracy—and to the credibility of the Bush Administration, which staked so much on this deadline. But there could have been a worse development: a bad constitution—unworkable, illiberal, or unacceptable to a section of the country. At least that disaster has been averted for now.

It is useful to ponder what did not happen on August 15. Iraq’s Transitional National Assembly did not adopt a provision (advocated by Shiite Islamist delegates) that would have forbidden legislation contradicting Islamic law. As Juan Cole has recently argued, this could have been “a Trojan horse for making Iraq into an Islamic republic,” by making Islamic clerics constitutional arbiters. The Assembly did not create a super-region of the nine predominantly Shiite provinces in the oil-rich south, which would be completely unacceptable to the Sunnis (as well as to many Shiites who believe in a united Iraq). It did not yield to a Kurdish demand for the right to hold a vote on secession—a referendum that, in the foreseeable future, would probably go overwhelmingly for secession.

Neither did the Assembly majority force a constitution down the throats of unwilling minorities. The Kurdish and Shiite delegates did not tell the unelected (and only recently added) Sunni committee members to accept their offer or take a hike. The ruling Shiite alliance did not use its narrow majority to scrap the interim constitutional provisions they don’t like, particularly the one enabling any three provinces to veto the constitution in the referendum. .

In fact, a case can be made for the brave face that Condoleezza Rice put on the constitutional impasse: It shows the democratic process is working. At least dialogue and negotiation continue. At least we are not yet at civil war.

However, the impasse reveals the depth of the country’s philosophical and political divisions. Substantively, the divisions are profound--though not necessarily insurmountable. Ironically, in pressing new and radical demands during these constitutional negotiations, Shiite hardliners in the ruling alliance, especially the Supreme Council for the Islamic Revolution in Iraq (Sciri) and its theocratic leader, Abdul-Aziz al-Hakim, may have unwittingly paved the way for a broad compromise. Neither the Sunni delegates nor their constituencies can accept the belated, opportunistic Shiite demand to unite the nine southern provinces (half of the country’s total) into a single super-region that would contain perhaps half the population and most of its natural resources. However, now that Sciri is pressing for, in effect, a confederation dominated by a single Shiite region, a more limited federalism may not look so bad to the Sunnis. Privately, some Sunni delegates have indicated that they could live with the status quo—an autonomous Kurdistan and a moderate devolution of power and resources to elected provincial governments, with a strong central government. There is a deal to be had here.

Similarly, by demanding not simply a strong place for Islam in the new constitutional order, but also constitutional recognition of the special status of the marja’iyya (the Shiite clerical authorities based in Najaf), the Shiite Islamist have over-reached. Some of the 15 Sunnis on the drafting committee are Salafists who want a clear constitutional role for Islamic law. But these delegates would rather leave the constitution vague on religion’s relationship to the state rather than privilege Shi’a Islam. With more time, a deal could coalesce around the lowest common denominator, limited and general provisions on the role of Islam in the state.

One also wonders whether the Kurdish demand for a right to secede is similarly tactical, a bargaining chip to be expended in pursuit of their truly irreducible interest—preserving Kurdistan’s regional powers, while laying the political and demographic basis for a vote that would incorporate the disputed oil-rich city of Kirkuk. Such an outcome—once anathema to the Sunnis—may not look so bad compared with the prospect of national disintegration.

On these and other contentious issues—the division of oil revenues, the scope of women’s rights and the nature of family law, the structure of executive power, the official status of the Kurdish language—deep divisions persist. However, on each issue, a compromise is imaginable, provided there is time and the proper political structure for a dialogue. It is those two latter conditions that have been missing in the past eight weeks of negotiations.

The Bush Administration must be given credit for insisting that the constitutional negotiations include authentic Sunni Arab representatives (who are largely missing from parliament as a result of their electoral boycott last January). Yet the Sunnis have complained bitterly that they are only at the table because of American pressure, and that they have often been excluded from the table that matters, in the home of President Jalal Talabani, where the real deals are cut. Talabani is better able than some of his fellow Kurdish leaders to see the larger national picture. But he is an awkward figure to convene and lead these talks.

With such deep divisions, Iraq would benefit from outside facilitation of talks. During the negotiations over the interim constitution in early 2004, that role was played by the American Administrator, L. Paul Bremer III, and briefly by the United Nations special envoy, Lakhdar Brahimi. Brahimi performed brilliantly in crafting a compromise arrangement that moved the process forward, and though Bremer made many mistakes as imperial viceroy, he did help foster accommodation on big constitutional questions, particularly the one establishing Iraq as a unified, federal, and democratic state, with Kurdish autonomy but a strong center. That remains probably the only viable common ground for the future Iraqi state. Iraq’s current constitution-making process badly needs the kind of outside guidance..

Fortunately, after months of drift, the United States has an ambassador on the ground, the very capable Zalmay Khalilzad, who has assumed an informal mediating role. But the United Nations has been largely absent from the dialogue, and the United States is far from completely trusted. Now may be the time for more ambitious facilitation, matching Khalilzad with an experienced UN envoy and perhaps representatives from other Baghdad embassies.

Many differences remain and little time. If negotiators fail to strike a deal in the additional week that the Assembly has granted, they still might receive another one-week extension. Beyond that, it becomes almost impossible to organize a referendum by the October 15 deadline, a provision in the interim constitution that is not open to amendment. So if there is no constitutional agreement soon, the Assembly will be dissolved and new elections held, with the process starting from scratch, after probably another protracted delay in forming a government.

New elections would lead to a more inclusive government and constitution-making process, as the Sunnis will not repeat their mistake of an electoral boycott, and the country will not repeat its mistake of using an electoral system without electoral districts (which would diminish Sunni representation, since the greater violence in Sunni areas will suppress their turnout even in the best of circumstances). But new elections—precipitated by a breakdown of the constitution-making process—could also embolden the insurgents and discourage and exhaust ordinary Iraqis.

In demanding that Iraq complete the constitution by an imminent, arbitrary, and deferrable deadline, the Bush Administration gambled and lost. In betting that it could support Iraq’s transitional process without strong UN and multilateral participation, the Administration lost again. If a way is not found to accelerate or regenerate the constitutional momentum, the Iraqi people will be the losers, and the United States along with them.

(Larry Diamond is a senior fellow at the Hoover Institution and author of Squandered Victory: The American Occupation and the Bungled Effort to Bring Democracy to Iraq).