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iraq’s constitution so divisive, there are calls for a new one

Mustafa Habib
The Iraqi Constitution, formulated in 2005, is often described as one of the best in the Middle East. However there are several grey areas within it and everyone agrees these require amendments. But an almost total…
28.11.2013  |  Baghdad
No more consensus between ethnic groups or sects: Sunni protestors in Iraq earlier this year.
No more consensus between ethnic groups or sects: Sunni protestors in Iraq earlier this year.

The constitution of any country is supposed to provide the basics of how it should be governed. A national constitution can be a unifying document, which is referred to in times of trouble. But not in Iraq. There the Constitution seems to have become a reason for conflict - rather than the legally binding document for the resolution of tricky issues, it was supposed to be.

“Unfortunately the Constitution has become a source of division for all parties,” opposition MP Haider al-Mulla from the mostly-Sunni Muslim Iraqiya bloc, told NIQASH. “The more ambiguous parts of the Constitution have become a reason for starting a fight. And political blocs easily breach the Constitution to further their own interests, without seriously considering any kind of amendment. We need a final version of the Constitution that is acceptable for all parties. Unfortunately,” he continued, “we’ve now gone through one full term of Parliament without discussing any amendments.”

The current Iraqi Constitution was drafted by committee and approved by public referendum in 2005. Around 60 percent of eligible voters turned out to vote on the Constitution and almost 80 percent of them approved it. However it has long been clear that the Constitution needed amendments and revision. Even the Constitution itself allows this, with Article 142 calling for the formation of a special committee to revise it and come up with amendments.

“In 2005, Iraqis approved the Constitution in a referendum, but they voted on an incomplete and badly written draft, not realising that the document would deepen Iraq’s misery,” wrote Saad Jawad, a professor of Iraqi political science, in a paper for the Middle East Centre of the London School of Economics. “The hasty way the Constitution was drafted, the many unhelpful external interventions, the absence of Iraqi constitutional expertise and the side-lining of Sunni Arab representation have all contributed to the precarious situation in Iraq in the subsequent eight years. Considering the myriad confusions and divisions underlying the Constitution’s drafting process, it is not surprising that the document has created more problems than it has solved.”

The previous government –in power between 2005 and 2009 - managed to form such a committee, with adequate representation of all sectors of the Iraqi populace, and in May 2007 they did submit a list of suggested amendments. Although the last lot of MPs eventually failed in their mission to amend the Constitution they still did better than the current Parliament. The current Parliament is so divided it has not even managed to form a committee to look into this issue and it seems as though any minor consensus that used to exist among the different segments of Iraqi MPs – for example, Shiite Muslim, Sunni Muslim, Kurdish – has all but evaporated. Nobody can agree on anything.

And with only a few months remaining for them, before the next elections, they seem unlikely to get any further with the task. It seems certain that the constitutional hot potato will be passed onto the next Parliament, after elections in 2014.

The biggest problem with the current Constitution is a lack of clarity in many of its articles. Often articles only deal with issues on the most general basis and then end by saying that they shall be organized by law.

Obviously this is not all that unusual among governments that abide by constitutions. Often the basic tenets are open to interpretation which can make for controversy. For example, members of the US government still argue as to whether the articles in the US Constitution should be interpreted by modern standards or whether they should be used in the way that the Constitution’s writers originally intended.

Although analysts have criticised the Iraqi Constitution for the fact that it was formulated in a relatively short time and that it came about due to conflicts between major political blocs, the biggest problem for Iraqi politicians is a lack of consensus.

“Regarding the constitutional amendments, there’s been no consensus at all between Sunni, Shiite and Kurdish politicians during the past three years," MP Abdul Rahman al-Luwaizi, a member of the parliamentary committee on legal affairs, told NIQASH. “Constitutional amendments are complicated and we need a calm political atmosphere to make them. But instead the political landscape has been marred by conflict and crisis for three years.”

Al-Luwaizi adds that the small margin of consensus that existed in the last Parliament has almost totally disappeared from this one. What makes things even more complex is that there is are a number of legislative hoops that everyone must jump through together before any amendments to the Constitution can be made official.

After the parliamentary committee on the amendments – which doesn’t exist at the moment – makes its recommendations, these recommendations would be submitted to MPs in Parliament for a vote. If there’s an absolute majority – more than half of the MPs agree – then the recommendations are approved. Within two months of that approval, a public referendum has to be held on the amendments. If that is successful they are adopted.

There are a number of things within the current Constitution that make it very unlikely that anyone will agree on any amendments. These include the disputed territories; undefined regions that Iraqi Arabs say belong to them but which Iraq’s Kurds also claim. There’s also disagreement on how much power Iraq’s federal government should have and how much power the provincial authorities should have, arguments the powers of the various branches of government, debate on the distribution of oil wealth and varying viewpoints on personal status laws. All of these go to the heart of Iraq’s major ethnic and sectarian disputes – and nobody seems willing to compromise.

In fact, the disagreements are so untenable that some Sunni Muslim clerics have recently been calling for a whole new Constitution to be written.

“Certainly there is a need to make some amendments to the Constitution but we reject the idea of abolishing this one and writing a whole new one,” Abbas al-Bayati, a Turkmen and a member of Prime Minister Nouri al-Maliki’s ruling coalition, told NIQASH. “The Iraqi Constitution is one of the best in the region. However there are some problems in some of the paragraphs which should be debated after the next legislative elections.”