Brown: Best Hope for Iraq Is Rejection of Draft Constitution and Reopening of Negotiations

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Nathan Brown, an expert on Arab constitutions, who has closely studied the evolution of the Iraqi draft constitution, says the results of the drafting committee were “a disappointment” because they failed to gain a national consensus, and this has left the document flawed. He says the best result would actually be if, in the scheduled October 15 referendum, Iraqi voters actually reject the constitution. This would require a coalition of Sunni and disaffected Shiite voters in three of Iraq’s eighteen provinces, something that will be difficult to achieve.

“Rejection of the constitution would be an embarrassment for the Bush administration, but for the long-term future of Iraq, I think it might actually be a way to turn a constitutional process into a real mechanism for political settlement,” says Brown, a senior associate at the Carnegie Endowment for International Peace, on leave from George Washington University. He adds that this might produce more flexible negotiators on all sides.

Brown was interviewed by Bernard Gwertzman, consulting editor of cfr.org, on August 29, 2005.

The Iraqi drafting commission has now published a constitution, which was not actually voted on by the National Assembly, but which is supposed to go to the voters in a referendum October 15. There’s a lot of back and forth over whether this is a good document, a bad document, etc. What’s your general feeling about it?

Procedurally, it ended in a bit of a mess. This is both because the Sunni members of the drafting committee basically rejected it, and also in a more legal sense, the parliament never voted on it. So what is going to be submitted to voters is a draft completed by a committee rather than one that was approved by a parliament, as was required in the [interim constitution, the] Transitional Administrative Law (TAL). I’m not sure those legal points make as much difference as the fact that this is a document that does not have consensus support.

In terms of the substance, it’s a draft that, in my mind, doesn’t really resolve an awful lot of the issues that were dividing Iraqis. A constitution doesn’t have to resolve all the issues, but the number [of them] left unresolved is fairly large—perhaps excessively large.

Why don’t you go through the major problems?

Well, the biggest issue by far is what is referred to as federalism, but even that word was a subject of contention. Essentially, the question is: What is going to be the power and the authorities of the central government? What is going to be the power and authorities of the various regions, which consist of several provinces? And what is going to be the authority of the provinces? Some of that is spelled out, and actually, the division of authority is spelled out in some detail. And matters—for instance, like the division of oil revenues—are left a little bit ambiguous and still have to be settled.

But the really big unsettled question is: Are we going to see an Iraq that consists of a central government and a bunch of provinces, plus a Kurdish region? Or are other provinces, especially the Shiite provinces [in southern Iraq], going to come together and form separate regions? That was really one of the central sticking points that prevented Sunni endorsement of the draft.

In other words, the Sunnis are able to live with the Kurds because they’ve been living with them for years now, but they are fearful of a southern Shiite state?

Exactly. The Kurdish region has been effectively autonomous since 1991. It’s unclear how much the Arab Sunni population accepts that. But at least those people who are participating in the drafting said, “That’s water under the bridge and we’re not going to try to undo that. We may try to limit it from going any further, but we’re not going to try and recreate a highly centralized state including Kurdistan.” The rest of the country was a very different issue, especially when Shiite talk of federalism escalated in the final days and weeks before the text was finalized. The Sunnis dug in their heels, as did the Shiite negotiators.

Of course, there are some Americans who advocated federalism all along. What is bad about the Shiites having their own autonomous region like the Kurds do?

If it’s really just a matter of federalism, I think it would be unusual in the region but it wouldn’t necessarily be a disaster or unworkable. But there are suspicions that what the Shiites are pushing for is a little bit more than simply a measure of administrative decentralization. If you were to take a large number of [predominantly] Shiite provinces—people have said there are as many as nine or ten, which is essentially half the country [which has eighteen provinces]—and form them as a region, and you take the three Kurdish provinces and form them as a region, those regions would be where most of Iraq’s oil resources are located. Then, perhaps, you’re setting up the stage for dissolution of the state. In fact, it seems to me that the strong insistence by some Shiite leaders, not by all of them, on having the ability to form a large region, is in a sense an insurance policy. If the central government in Iraq does not hold, they can still go their separate way.

What would the Sunnis like, ideally?

Ideally, they would want a centralized state. It is a standard in the region. Iraq was not something invented by Saddam Hussein, but it was how Iraq was governed since it achieved independence from Great Britain [in 1932]. Beyond that, the Arab Sunni population is divided. You have some very secular members of the Sunni community and some who want to see an Islamic state.

The constitution calls for an Islamic state, right?

It doesn’t call for an Islamic state per se, and actually, the final draft mentions Islam much less than some of the intermediate drafts did. But it potentially has a really strong formula for requiring that all laws passed conform to the Islamic sharia [traditional Islamic law].

And what does that mean to laymen?

It’s not clear what it means because a lot of these issues have simply not been spelled out in detail. But what it seems to mean, is that the parliament can’t pass a law that violates the provisions of Islamic law. Now the question is: Who’s deciding what those provisions are? Who’s deciding what Islamic law is? A law passed by parliament does not have to conform with the principles of Islamic law, but with more specific provisions. So that’s a more specific formulation than was anticipated.

The constitution also creates a federal supreme court that will interpret the constitution and [whose members] can include experts in Islamic law. The exact structure of the federal supreme court is not spelled out in the constitution; it has to be spelled out in a law passed by parliament. So, we don’t know exactly what shape it will take, but there’s a possibility it will have a more Islamic coloration than we would have thought previously.

There’s been a lot of concern in theUnited Statesand in Iraq about how this affects women.

The problem is that Islamic law is a legal tradition more than a thousand years old, and it’s very rich and very diverse. So the question is not whether Islamic law will be applied, but who’s going to be interpreting it and applying it. And therefore, putting clerics on the supreme court might have the effect of enshrining more traditional interpretations of Islamic law.

I would also say that the main thing the constitution does is empower the majority. Whoever wins in the parliament will have an awful lot of leeway in determining how this constitution operates. And if you have an Islamist majority in parliament, as seems quite likely, they will almost certainly pass laws based on fairly traditional interpretations of Islamic law.

Will this mean a setback for women’s rights?

In some areas, it probably does mean a setback for women’s rights, especially on personal-status law. Again, that’s something that’s unclear; it’s something parliament will have to write a law on. But it is likely they will write a law that will mean more traditional interpretations of Islamic law, which are probably less favorable to women.

Is there still a provision for having a certain percentage of women in the parliament?

Yes. The women’s groups did win on this, or at least they won a partial victory. What they were pushing for was an increase in the quota in parliament beyond the current 25 percent; for it to be [a] permanent [quota], rather than just a transitional measure; and they were pushing for it to extend beyond the parliament to other decision-making positions. They won only one of those three demands. It’s still at 25 percent, it was not increased. It is only for the parliament, not other positions. But they did succeed in making it part of the permanent constitution rather than just a transitional measure for one or two elections.

Is that a large number of women for the Arab world? I guess it is.

It’d be a large number of women for the United States. I think for most countries, it would be a fairly large number.

I saw reports today that some Sunnis are saying the constitution’s still negotiable, that it’s not the final word, that there might be some way of reaching a compromise. Does that give you a sense that things are not locked in yet?

Yes, I think it is possible to continue negotiations. Remember, this is not a draft that has been approved by parliament. It’s simply been written by a constitutional commission and changes were made even after the extended deadline of August 22. All along, many of those involved in the process have said, “We can still make changes even after the final draft—or what’s called the final draft—is presented.” Legally, I think that’s an extremely questionable statement. But they’re getting away with it. So I think it’s quite possible for the negotiations to continue.

The real question is: Will a little bit more time result in any significant differences? The gap between the Shiite and Sunni negotiators, in particular, has grown very strong. The tone of political discussions in Iraq among the negotiators has gotten a little bit nasty and a little bit sectarian. So I’m not sure that more negotiations would necessarily lead to a different result. But it is politically possible.

What kind of compromise would have to take place to appease the Sunnis, if that’s possible?

I think the main thing that would have to happen would be that the Shiites give up on the idea of forming a large Shiite region. I think Sunnis could probably live with some regions other than the Kurdish region, but they would have to be smaller, perhaps limited to three provinces. And the Sunnis might want to have a very strong check at the national level on creating such regions so they couldn’t be formed without strong consensual support from the center.

The central government now is supposed to control the oil revenue, is that correct?

Yes, it is supposed to control the oil revenue, but again there’s ambiguity here as well. It’s supposed to work with the regional and provincial governments on it. There’s also a provision that those regions that have been historically discriminated against in receiving oil revenues or the benefits of oil revenues can receive a disproportionate share for an undefined transitional period.

If they had to vote today instead of in October, would enough Sunnis turn out to reject the constitution?

That’s a very important question. In a sense, the Sunni population of Iraq is faced with a dilemma: Do they turn out to vote against the constitution and therefore legitimize the process, or do they stay out of it completely and not legitimize the process while also virtually ensuring that the constitution passes? It’s clear that there’s a very strong trend within the Sunni community to actually turn out and vote. It’s not clear how many will actually vote. If those Sunnis who want to vote against the constitution do manage to turn out the vote, it will still be hard to ensure the constitution’s rejection unless they get some other parties on board as well.

The interesting factor here is [Shiite cleric] Muqtada al-Sadr’s movement, which is wavering between boycotting and opposing the constitution. If Sadr’s movement acts to vote against the constitution, then I think there’s some hope for those who want it rejected. What you need [to reject the constitution in the referendum] is a two-thirds majority in any three provinces. That [Shiite] movement, together with the Sunni movement, would probably be enough to do it.

Why is Sadr against this constitution?

Well, it’s not completely clear. He’s a little mercurial in his politics and it’s not even clear the extent to which he’s in control of his own movement. But his stated reason [for opposing the constitution] is pretty much the same as the Sunnis’, that it is a formula for the dissolution of Iraq as a single state.

Did the United States get anywhere near what it wanted, or was it an accomplishment just getting a constitution? When we talked last in July, you lamented the fact that the Iraqis and Americans were rushing to write a constitution without enough time to really think about it. Did the United States push too hard to get this done on time?

I think so. I think we were trying to do too many things at the same time. We cared about the content of the document, we cared about the process—that is, that the Sunnis get on board—and we cared that it get written on time. To try and do all three things at the same time proved impossible. In the end, what we’re left with is a constitution that really didn’t quite make the deadline but at least came close, yet fell short on the other two: The Sunnis participated but fell out at the last minute, and the content of the document is far less liberal than I think the United States would have wanted to see. I think the United States would have liked to see a constitution that did an awful lot more to enshrine liberal freedoms and democratic practices than this constitution will do.

How does this constitution rank with other Arab constitutions?

To some extent, that’s an unfair comparison because it will be operating in a very different political context. From the perspective of liberal and democratic freedoms, it’s actually fairly similar and in some ways weaker than some other constitutions in the region. For instance, freedom of expression is guaranteed within the bounds of public morality and public order, which is almost not guaranteeing it at all because almost all restrictions on freedom of speech are characterized as defending public morals or the public order. So that’s extremely weak language. Even by regional standards, it’s a little weak.

But the reason I say it’s an unfair comparison is because the context in Egypt or in Syria is very, very different. You give that language, or similar language, to an Egyptian or Syrian government, which is dominated by the presidency, and they can use it to restrict the freedom of the press almost out of existence if they wish to. It’s not clear that you’ll have that kind of authoritarian government emerge in Iraq. I think the past couple of years have resulted in a much more pluralist political environment in Iraq. So the constitution itself is actually surprisingly weak on many freedoms and liberties, but the political system that results from it might allow for a little bit more than exists in other states in the region.

What about the overall security issue? Is there any way this will at all enhance ending the insurgency in Iraq?

No, I don’t think so. This insurgency is not about constitutional text. It’s not as if the insurgents have issued an alternative constitution, and had a few clauses been adopted, [the problem of the insurgency] would have been solved. The logic behind making the constitution central to solving the insurgency was that you could bring various parts of the population on board, especially the Arab Sunni population. And once they saw that they had a stake in the situation, the population would switch its support from the insurgents to the government. It’s fairly clear that’s not going to happen as a result of this text and this process. So, in that sense, it’s not going to fulfill the goal. It may have actually even aggravated the situation by emphasizing sectarian and religious issues that were always there in Iraqi politics, and now have been put on the surface.

So if this constitution is accepted, what will happen?

I think we’ll see a political situation that looks pretty much like the present situation. You’ll have new elections [for a new government December 15]. The new elections might result in a slightly different parliament, but I’m not sure they will result in a fundamentally different one. And then the parliament will have to sit down and write the laws that will make this constitution operate, and it will likely be Shiite-dominated with a strong Kurdish presence.

There’s no likelihood that the Sunnis would vote in the December 15 election if their demands get turned down on the constitution, right?

I think so. Even if they did vote, they would probably not vote in sufficient numbers to really change the balance in parliament. They might, but they would have to turn out in large numbers in order to do that.

Well, the Sunnis must realize this because the possibility of it being rejected is actually slimmer than it being accepted. So is it possible, then, that some deal can still be struck?

I think it’s possible. I think the negotiations, in spite of the way they broke down at the last minute, were being conducted in good faith. The Sunnis were willing to make all kinds of concessions, the Shiites were willing to make concessions. The Kurds were even actually willing to make some concessions. But the problem was that none of them were willing to make concessions on their core demands, and it’s not clear whether you can have a meaningful constitution unless they really do that.

I don’t think it’s impossible to reopen negotiations, but even if you did, it would be so difficult to resolve these core issues that I’m not particularly optimistic about the result, at least in the short term. This may be the sort of thing that has to be reopened not over the next month or so, but over the next few years.

So basically, you’re disappointed.

Yes. I would say, in some ways, the best thing that could happen to Iraq in the long term would be the rejection of the constitution [in October], assuming that leads to the parties sitting down, starting over again, facing the abyss of complete civil war, and not partial civil war and dissolution of the country. And you’d also probably get new negotiators into the room. You might also have Sunnis enter the room that were elected, rather than appointed in a kind of ad hoc fashion. So rejection of the constitution would be an embarrassment for the Bush administration, but for the long-term future of Iraq, I think it might actually be a way to turn a constitutional process into a real mechanism for political settlement.

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