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[casi] ICG: Iraq's constitutional challenge

Full report at (43 pages)



International Crisis Group (ICG)
13 Nov 2003

Iraq's constitutional challenge


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

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.

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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