The Iraqi constitution: DOA?

Angry and marginalized, Sunnis are threatening to torpedo Iraq's constitution. Disaster looms, and the Bush administration's blunders are largely to blame.

Published August 26, 2005 7:57PM (EDT)

On Thursday, the third deadline for finishing Iraq's new constitution passed without agreement, as Sunni leaders balked at Shiite and Kurdish demands for federalism and regional control of oil wealth. In response, Shiite leaders threatened -- yet again -- to bypass the Sunnis, use their majority to approve it in Parliament, and take it to the Iraqi people for a national referendum.

Whether the constitution is sent to the Iraqi people without Sunni approval or is once again returned to the election committee for negotiations is almost irrelevant. The divisions are so intractable that the Sunnis are going to be marginalized, and enraged, in any event. The upshot: America's political vision for Iraq lies in tatters, and the Bush administration has largely itself to blame.

On Tuesday, President George W. Bush issued what could be seen as a threat against Sunni Arab political leaders in Iraq who threatened to launch an uprising (intifada) against the new constitution. Bush said, "This talk about Sunnis rising up, I mean the Sunnis have got to make a choice. Do they want to live in a society that's free, or do they want to live in violence?" Mind you, the politicians who spoke of uprisings and streets aflame were the very ones who participated in the drafting of a new constitution, risking their lives to do so because the guerrillas see this participation as a form of collaboration with the occupiers. They had been frustrated by their marginalization on the drafting committee, and by the high-handed way that Shiites and Kurds have implemented their vision of an Iraq that looks more like the European Union than like a sovereign nation-state.

Bush's bluster is especially ironic since his administration's missteps contributed mightily to the crisis. The United States pursued the policy, now almost universally acknowledged to have been disastrous, of dissolving the Iraqi army and banning former Baath members from government jobs, a policy that hurt middle-class Sunni Arabs badly and helped push them into supporting the guerrilla movement. The United States signed off on the United Nations plan to have a proportional election system, which ended up working to exclude the Sunni Arabs. (In a district-based system, Sunni Arabs would have been represented even in case of a low turnout.) Bush's massive assault on Fallujah in November 2004, threw the entire Sunni Arab heartland into chaos -- even previously quiet cities such as Mosul -- and so embittered the Sunnis as to discourage their participation. In Bush's rush to ally with the victors of the Jan. 30 elections, the Supreme Council for Islamic Revolution in Iraq (SCIRI) and the Dawa Party, both Shiite fundamentalist groups, he gave them the impression of strong backing from Washington and made them less willing to compromise. After the disaster of the Jan. 30 election results, which left the Sunni Arabs with little representation in the government, the Bush administration did, to its credit, finally step in to push for proper Sunni Arab representation on the constitution-drafting committee. But by then it may have been too late.

More than anything else, the Sunnis oppose the plans of the Kurdistan Provincial Confederation and the mooted Shiite Provincial Confederation ("Sumer") to keep substantial amounts of the petroleum profits in the regions rather than sharing them. The constitution even leaves open the possibility that regional confederations could claim 100 percent of the oil fields developed in the future. The Sunni Arabs have no petroleum resources in the region at the moment, and although geologists think there may be a big field near Fallujah, such speculation has often not panned out. In the short and medium term at least, the Sunni Arabs would get much less than their fair share of the nation's oil patrimony. The Sunni Arab street in Iraq feels that the moral economy of the oil state has been violated, and it will never accept such second-class citizenship -- contrary to the sunny views of David Brooks, whose New York Times column Thursday cited Peter Galbraith as saying that ordinary Sunnis would come to see that the constitution was good for them.

This is the background that allows us to understand how even the cooperative Sunni Arab figures are now threatening an intifada. In the balance hangs Iraq's new constitution, waiting for the approval of which has become rather like waiting for Godot. Even if it is approved by the National Assembly, the constitution faces an Oct. 15 national referendum. Iraqis in every one of the 18 provinces will be able to vote yes or no on the document, which allows substantial decentralization but requires that Parliament pass no civil legislation that contradicts Islamic law. Because the Kurds feared a tyranny of the Shiite majority, they inserted a clause into the interim constitution that allows any three provinces to reject the constitution by a margin of two-thirds. The Sunnis are gearing up to hoist the Kurds on their own petard, by using this clause to reject a constitution that the Kurds like but the Sunni Arabs dread.

The problem began with the Jan. 30 elections, which were held on a proportional basis. Because the Sunni Arabs of Iraq either boycotted the elections or could not vote because their areas were too violent and insecure, they ended up with only 17 seats in a Parliament of 275. Sunni Arabs are probably around 20 percent of the population, and they have been for centuries the elite and the decision makers. The main charge of the transitional Parliament was to write a constitution, but it looked as though Sunni Arabs would have little say in the new charter. Since many Sunnis were already engaged in a guerrilla war against the new order, the danger existed that if a constitution were put through that pleased the majority Shiites and the Kurds, but that Sunni Arabs rejected, it would prolong the guerrilla war and perhaps even contribute to the breakup of the country.

On March 28, Sunni Arabs held a convention in Baghdad to discuss whether and how they should join in helping to draft the permanent constitution. One can only imagine the sea of men with Saddam moustaches or white turbans, or perhaps a few ski masks, interspersed among a handful of smart, politically ambitious professionals in tailored suits. A notion of the kind of opposition faced by those seeking a belated entry into the parliamentary process may be gained from tribal chieftain Mazin Jabir Nima's insistence on shouting "Long live the resistance!" in the midst of the otherwise serious deliberations. Others worried that the Sunni Arabs faced a bleak future unless they got involved in the political process.

The religious Shiites and the Kurdish nationalists who had captured Parliament smashed any hope that they would prove generous in victory. They set up a 55-man parliamentary committee to draft the constitution in accordance with how many seats a party list had in the Legislature. Thus, the majority of members came from the Shiite United Iraqi Alliance coalition. The Sunni Arabs, with their measly 17 seats in Parliament, were given only two seats on the committee. Not noticing that it hadn't been invited to the party in the first place, the hard-line Sunni clerical group, the Association of Muslim Scholars, sniffed that it did not even want to be involved in writing the constitution unless the U.S. agreed to set a timetable for withdrawal of its troops from Iraq. This was rather as though you had been snubbed by the hostess of the best party of the season and then called her and said you refused to come unless she uninvited her best friend.

Hajim al-Hasani, the Sunni speaker of Parliament, was understandably alarmed, and he urged that the parliamentary drafting committee be opened to members from outside the Legislature. With the long delay in forming the government and then the drafting committee, the guerrilla movement took the initiative and launched a brutal and effective wave of bombings that shook Baghdad to the core. The Sunni Arabs may not have had many seats in Parliament, but they clearly could not be ignored.

On May 16, a frantic U.S. Secretary of State Condoleezza Rice flew to Baghdad and insisted that Sunni Arabs be included in the constitution-drafting committee. The Bush administration was terrified that if the Sunnis felt excluded from the drafting process or deeply disliked the resulting document, they might torpedo the new constitution in the national referendum scheduled for Oct. 15. She told the new government of Prime Minister Ibrahim al-Jaafari that despite its "de-Baathification" process, the Jaafari government must ''respect the fact that there now needs to be an inclusive Iraqi process and an inclusive Iraqi government.'' Behind the scenes, the United States pressed relentlessly for Sunni Arab inclusion.

The dominance of the drafting process by the religious Shiites was underlined on May 24 when Sheik Humam Hammoudi, a cleric, was appointed chairman of the committee. He is a member of the Supreme Council for Islamic Revolution in Iraq, a Shiite religious party that admires the Iranian model of governance. With his white turban, austere face, graying beard and brown robes, he is a ringer for the mullahs who run Iran, against whom Iraqis fought a bitter eight-year war. Nevertheless, SCIRI leader Abdul Aziz al-Hakim voiced his support for greater Sunni Arab participation in the drafting of the document. A week later, with the issue still unresolved, the committee began its work.

In early June, the Jaafari government launched Operation Lightning, a concerted sweep of Sunni Arab neighborhoods in Baghdad, aimed at increasing security in the bomb-scarred capital. The three major Sunni Arab political groupings strenuously denounced the random searches of homes and the arrest of hundreds, often on slim evidence. Despite the tensions generated by the operation, the negotiations continued. The Shiites at length offered to add 13 Sunni Arab members to the committee, bringing the total to 15. They were not prepared to give these 13 voting rights, since they were not members of Parliament, but promised that all decisions would be made by consensus. (It was an empty promise, as the Sunni Arabs had suspected all along.) The Sunnis, who still had not gotten the message that they weren't actually wanted, threatened to boycott the deliberations unless they were given at least 25 seats on the drafting committee. In the end, the Sunnis were finessed. On June 16, they were given 15 new seats, bringing their total to 17, but another 10 "counselors" were recognized who were no more than observers. The Shiites warned them that if they did not accept this deal, the constitution would just be written without them.

Choosing the Sunni Arab members of the committee was in turn no easy task. The Sunni Arabs had no umbrella organization, their leadership having been fragmented by the collapse of the Baath Party. Adnan Dulaimi, a religious hardliner who headed the Sunni Board of Pious Endowments, submitted his own list of 25, without consulting anyone else. (His organization oversees the country's Sunni mosques and other religious properties. He was later summarily fired by the Shiite prime minister.) Other Sunnis formed a new organization, the National Dialogue Council, to represent their interests and put forward nominees. The disdain in which the Sunni Arab leadership continued to be held, and the suspicions that attached to it of supporting the guerrilla war and terrorist actions, were underlined when U.S. troops arrested and briefly held Muhsin Abdul Hamid, a former president of the interim governing council and venerable head of the Iraqi Islamic Party, which had generally cooperated with the United States.

It was now mid-June, and the deadline for finishing the draft of the permanent constitution and having it adopted by Parliament was Aug. 15. Salih Mutlak, of the National Dialogue Council, told the New York Times on June 15 that the deadline would have to be extended, saying, ''I don't want to put my name on a constitution that will be written in two weeks."

The path to nominating the 15 new full members of the drafting committee was strewn with land mines. First there was a controversy over whether the list of 15, which a small group of political leaders had come up with, should be approved by a big Sunni Arab political congress. That suggestion was shot down by the Sunni elders, who complained that it would just complicate things and delay the process. Grass-roots democracy has not been a strong suit in Sunni Iraqi political culture in the past few decades. Then a further controversy erupted when it was alleged that two of the 15 had been members of the Baath Party. One of the two denied the charge; the other admitted it but said he had not been high ranking and anyway had never committed any crimes. Others were less apologetic. Mutlak opined to the New York Times on July 1, ''I still see the Baath Party as the best party we have seen. If you compare them, they are much better than the parties that are governing the country now.'' The new group of 15 Sunni Arabs was finally added to the committee officially on July 6, though Shiite parliamentarians hinted darkly that some of them were still under investigation for possible past Baath Party activities.

The deadline for finishing the permanent constitution was now only five weeks away. It is not clear that most local garden societies could draft by-laws in five weeks, much less a country the size of California with a similar population. Then disaster struck. Or rather, yet another, worse, disaster struck. On July 19, guerrillas killed two members of the 15-member Sunni Arab team. The remaining members could see the writing on the wall if they did not get better protection, since many in the Sunni guerrilla movement saw them as Benedict Arnolds working for the colonial power while pretending to be loyal patriots. They were all strolling around the capital with big red targets painted on them. They angrily staged a walkout and refused to go back to work without bodyguards. Adnan al-Janabi, a parliamentarian and member of the drafting committee, grandiosely announced that he held the Iraqi government and Parliament and the United Nations responsible. "Despite these parties' announcement they would back the process of writing the constitution, they did not provide security for Sunni members," al-Janabi told the wire services.

Mutlak and three other members of the committee from the National Dialogue Council demanded an international investigation. Mutlak told the Boston Globe, "We cannot be part of this." Shiite parliamentarian Saad Jawad Qandil (SCIRI), also a member of the drafting committee, pointed out that the Shiite parties could always just pass a constitution, but preferred to have Sunni support in hopes of reducing future strife. The Shiite refrain to the Sunni Arabs anytime the latter became obstreperous was always that the Shiites did not need them but wouldn't mind if they wanted to come along.

It was not until July 25 that the Sunni Arab members agreed to drop their boycott, in return for the Jaafari government (and presumably the United States) undertaking to provide them with security and to establish a commission with Sunni Arab membership to investigate the killings. Another week had been lost, and now only three weeks remained until the deadline.

On July 31, Sunni Arab parliamentarian Mishaan al-Juburi gave an interview with the London Arabic-language daily, al-Hayat, in which he warned of civil war if the three major Sunni Arab reservations about the constitution are ignored. The Shiites and Kurds on the drafting committee had made up a list of Iraqi minorities, and the Shiites wished to include Iranian-Iraqis, those of Persian ancestry, among the minorities. There certainly is an Iranian-Iraqi minority, which suffered persecution and deportation under Saddam. But Sunni Arabs fear that bestowing formal recognition on it will prove a back door whereby Iranians could flood into the country and gain citizenship. Al-Juburi said that Sunni Arabs also reject turning Iraq into a loose federal union, and reject the injection of Shiite religion into the constitution.

The drafting committee members by this time faced a momentous choice. The interim constitution drafted under American rule allowed them to notify Parliament on Aug. 1 that they would be unable to produce a final document by Aug. 15. In that case, they would be granted a six-month delay. The Sunni Arabs wanted such a delay. The Shiites and Kurds and their American patrons, in contrast, were deathly afraid that any such postponement would halt their political momentum and give encouragement to the largely Sunni Arab guerrilla movement. The guerrillas were launching more attacks every day in summer of 2005 than they had the previous summer, and they had more influence in the Sunni Arab heartland than they had had a year before. The Bush administration was convinced that only completing the constitution and holding new elections in which, this time, the Sunnis took part, would set Iraq on the path to stability and allow a drawdown of US troops. In fact, it would have been better for the constitution-writing process to take the extra six months, since attempting to draft a constitution in less than two months is clearly absurd, as the Sunni Arabs charged.

On Friday, Aug. 12, Sunni clerics preached in their mosques against the call of SCIRI leader Abdul Aziz al-Hakim for a Shiite confederation of nine provinces in the south, which would retain much of the region's oil wealth rather than sharing all of it with the rest of the country. Clergymen in Baghdad, Tikrit, and other Sunni areas urged Sunni Arabs to register to vote in the Oct. 15 referendum, so as to vote down the constitution if it recognized this form of federalism. Mutlak revealed that the Americans were urging Sunni Arabs to accept vague language about federalism for now, and to postpone specifics until a permanent Parliament was elected in December. Mutlak told the Associated Press, "We reject that."

Despite enormous American pressure, the committee failed to complete its work by the deadline of Aug. 15. The issue was not really drafting a constitution. It gradually became clear that the Shiites, the Kurds, even the Americans, had all developed drafts some time before. The difficulty was in reconciling these various proposed texts. The Shiites and the Kurds had many disagreements, but were generally willing to compromise with each other in the end. Even they had not reached complete agreement by Aug. 15. But the Sunni Arabs, with their stubborn rejection of federalism, proved a third wheel, impossible to placate given the aspirations of the other groups. By Sunday, Aug. 14, Shiites leaked a threat to the New York Times that they would just go ahead and pass a constitution without the Sunnis if the latter continued to be so uncooperative. The bluff did not work, and Parliament was constrained to amend the Transitional Administrative Law to allow a delay of a week, until Aug. 22, for passage of the constitution.

The profound political divisions among the Sunni Arabs were illuminated gruesomely once again on Aug. 18, when party workers from the Iraqi Islamic Party in Mosul were killed by guerrillas for urging Sunnis to register to vote. The IIP was registering them so that they could defeat the constitution in the Oct. 15 referendum, but even this degree of cooperation with the American-installed order was unacceptable to the rejectionist guerrilla movement. Increasingly, the politics that gripped the Sunni Arabs did not have to do with shaping the constitution. Rather, they were divided on how exactly to defeat it, whether by force of arms alone or by ensuring a three-province veto in the referendum. On Aug. 20, al-Qaida in Mesopotamia threatened to kill anyone with any link at all to the constitution (that is, even if the person just registered to vote so as to reject it). Since the requirement is that two-thirds of those who vote in the referendum reject the constitution in three provinces, however, the strategy of voting it down could succeed even with a light Sunni Arab turnout. Salih Mutlak, one of those under the death sentence, told the London Times that he thought the Aug. 22 deadline would be met, but "criticized the Americans and British for rushing the process."

In fact, the parliamentary drafting committee appears no longer to have been meeting by that weekend. Rather, the negotiations were among major political and community leaders. Jalal Talabani, the president of Iraq, doubled as the representative of Kurdish interests. Abdul Aziz al-Hakim, the Shiite cleric who led the dominant party in Parliament, doubled as a representative of the interests of the religious Shiites. For the most part, the Sunni Arabs were not even invited to the meetings. The Shiites made a final push to have Islamic law recognized in the constitution, and this time the Americans relented. Loose federalism was a quid pro quo for the Kurds. Two of Mishaan al-Juburi's three deal-breakers were now in the text.

The Aug. 22 deadline was not met, either, though an almost-finished draft was presented to Parliament moments before midnight, for all the world like Cinderella hurrying disheveled from the ball. To the extent there was an agreement on it, it was the agreement of Kurds with Shiites. This time, the Shiite prime minister, Ibrahim al-Jaafari, and other high officials did not even bother to amend the interim constitution again. They simply announced a three-day delay, during which they would attempt to get the agreement of all three major groups to the almost-finished draft. This move was clearly unconstitutional, it and signaled the impatience of the new political elite of Shiites and Kurds with Sunni Arab foot dragging (as they see it). Parliament did not even meet on the third day, and no later session was scheduled, throwing the process again into limbo.

The Sunni Arabs in the street were furious that their representatives had been virtually sidelined. Sunni Arab politicians speaking to the Arabic press warned that they would launch an intifada against the new constitution and said that the streets would be in flames. (They should have looked out the window; they might have found that the guerrillas had made such threats redundant.) We have already seen Bush's ominous response to the Sunnis: The Arab press correctly interpreted his bluster as a threat of more American Fallujah campaigns against the Sunni Arabs. But the Sunnis were not impressed. Even in Fallujah, which the Americans had bombed into submission, Sunni Arab families flocked to the voter registration sites to sign up to vote on Oct. 15, with the intention of defeating the constitution.

On Aug. 25, even as Parliament failed to meet its new deadline, the Sunni Arab members of the drafting committee had not altogether given in to despair. Mutlak suggested that compromise was still possible. After all, the Shiites had originally insisted that Islam be recognized as "the" source of Iraqi law, but had finally agreed, in the face of Kurdish opposition, that it would be "a fundamental" source. The Kurds had originally demanded an explicit right to secession, but ultimately gave up on its inclusion in the text. If religious Shiites and Kurds could find compromise language, President Talabani insisted, there was no reason in principle that the Sunni Arabs could not, as well.

The problem, however, is that the Kurds and Shiites could compromise in part because they both saw the benefits of regional confederations with claims on local resources, given that both have petroleum. The Sunni Arabs fear that such a system will leave them only with "the drifting sands of Anbar province." A system like Alaska's, in which oil profits are shared as royalties with all citizens equally, might have sidestepped some of the disputes over the prerogatives of provincial confederations, but the American Coalition Provisional Authority that ruled Iraq for a year did not institute that system when it had the chance. The Americans were still dreaming then of privatizing everything in Iraq for the sake of U.S. corporate profits (including the air Iraqis breathed, if possible.) Moreover, the long string of Bush administration mistakes in Iraq, along with the rejectionism of many in the Sunni leadership strata, had so alienated most Sunni Arabs that their negotiators -- unlike the populist Kurdish and Shiite leaders -- lacked much of a base of popular support, fatally weakening the Sunni bargaining position.

Parliament can clearly ram the draft constitution through at will, since the Shiites and the Kurds dominate it. In fact, the Kurdistan regional Parliament approved the federal constitution on Aug. 24, even before the federal Parliament had. But the real question now is whether the constitution can survive the referendum. The Sunni Arabs dominate Anbar and Salah al-Din provinces, and almost certainly can muster a two-thirds "no" vote on Oct. 15 in both. They may also be able to pull off a rejection in Ninevah province. In that case, Parliament would dissolve, new elections for Parliament would be held in December, and the entire process would begin all over again -- a nightmarish prospect. Meanwhile, the Sunni Arab guerrillas continue their macabre war against a new order that cannot seem to get its act together.

By Juan Cole

Juan Cole is the Richard P. Mitchell collegiate professor of history at the University of Michigan. He is the author of "The Rubáiyát of Omar Khayyam: A New Translation From the Persian" and "Muhammad: Prophet of Peace Amid the Clash of Empires." His latest book (as editor) is "Peace Movements in Islam." His award-winning blog is Informed Comment.


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