JURIST Guest Columnist Kristen Stilt of the University of Washington School of Law says that official US emphasis on the urgency of the forthcoming Iraqi constitutional process overlooks the fundamental question of whether such a process, undertaken now, will in fact be good for Iraq…

On January 30, 2005, Iraqi voters elected a 275-member National Assembly, but it was not until this month – April – that the Assembly selected from among its members a President, Jalal Talabani (leader of the Patriotic Union of Kurdistan and member of the Kurdish coalition in the Assembly), and two Deputy Presidents, Ghazi al-Yawar (from the minority Sunni coalition in the Assembly) and Adil Abd al-Mahdi (from the majority Shi'ite coalition). In turn, these three men (collectively known as the Presidency Council) appointed Ibrahim al-Ja'fari (also a member of the majority Shi'ite coalition in the Assembly) as the Prime Minister.

Congratulatory messages to the new Iraqi leaders rang out from the White House. In multiple official statements, the Bush Administration affirmed that the Assembly will now commence its chief task of writing a new constitution. The Assembly should complete a draft by August 15, 2005, and then hold a national referendum for the adoption of the final version by October 15, 2005. Alternatively, if on August 1, 2005, the President and a majority of the Assembly determine that more time is necessary to prepare the draft, they may extend the drafting process by six months. In such a case, the referendum would take place by February 15, 2006, and the remainder of the process would be delayed accordingly. Provided that the new constitution is adopted by a referendum in October 2005, elections for a permanent Iraqi government should take place by December 15, 2005, and the Assembly would then pass control to the new government and dissolve by December 31, 2005.

Such standard accounts of the electoral and constitutional process in Iraq overlook the most fundamental question: is this process good for Iraq? The current violence, factionalism, and lack of Sunni participation in the Assembly are obstacles that must be overcome before a genuinely participational constitutional process can begin. Essentially, the U.S. has been the driving force behind the urgent need for a new Iraqi constitution, from the earliest post-invasion days to the present. The timeline for the elections to the Assembly and the drafting and adoption of a constitution are dictated by the Transitional Administrative Law (generally called the “Interim Constitution”), which was adopted on March 8, 2004, by the now-defunct U.S. Coalition Provisional Authority (“CPA”) and the U.S.-appointed Iraqi Governing Council. The U.S. administration’s obsession with a new Iraqi constitution relates to the way the U.S. had expected events in Iraq to develop immediately after the invasion. The U.S. intended to aid in the preparation and installation of a new constitution that would provide fundamental rights and liberties and prohibit discrimination on the basis of gender, religion, ethnicity, or race. Iraqis would then hold elections pursuant to that constitution, the new Iraqi government would step into place, and the U.S. could withdraw from Iraq with the confidence that the constitution would provide liberty and justice for all in the first true democracy in the Arab world.

However, this did not happen. The U.S. was forced to accept the popular Iraqi view, relentlessly advocated by Ayatollah Ali Sistani, that the constitution should be drafted by an elected body of Iraqis. The U.S. finally conceded, but enshrined its agenda in the Interim Constitution’s schedule for Assembly elections and the preparation of the constitution. Seeking a guarantee of this timeline, the U.S. included in the Interim Constitution the provision that no amendment may be made to the Interim Constitution that would, inter alia, delay the elections or the deadlines for the constitutional referendum. Even with the option of a six-month extension, drafting a constitution that has adequate popular support in the allotted time will be a miraculous feat.

President Bush recently reiterated that the Assembly’s work is to write a new constitution, continue to train Iraqi security forces, deliver basic services, and advance Iraq’s transformation from dictatorship to democracy. The order of these objectives should be reversed. Instead of prioritizing the constitution, the Assembly would better serve its nation by first focusing on negotiations to stop the violence and to seek some common ground for discussions on a basic level, which would ultimately lead to a constitutional process. The Assembly could forge ahead with the constitution, devoting precious time and resources to the process, but this would be a mistake. Because of the wide-scale Sunni boycott of the elections, both as candidates and voters, they are substantially under-represented on the Assembly in relation to their population. The constitutional process can be a forum for negotiations among different factions and interest groups and produce positive results, but only when all parties are able and willing to come to the drafting table. Given the utter lack of security in the country, the paucity of basic services, and Sunnis fighting to resist what they fear will result from their status as minorities in the country, racing to meet the U.S.-imposed timeline will only force the existing conflicts onto the constitutional stage. Under this spotlight, there is little hope for success. And when the stakes are the country’s most authoritative legal document, additional pressure will be added to an already incendiary scenario.

Perhaps the most sensitive constitutional issue is the role that Islam will play in the Iraqi legal system. There are a wide range of views among Iraqis, and the U.S. is keen to see constitutional language that does not give Islamic law too much prominence. The language regarding Islamic law in the U.S.-drafted Interim Constitution is vague and abstract. As I have shown elsewhere (Islamic Law and the Making and Remaking of the Iraqi Legal System, 36 Geo. Wash. Int’l L. Rev. 695 (2004)), abstract language such as the provision “Islam is the official religion of the state and is considered a source of legislation” in the Interim Constitution has little meaning on its own. Legislative acts or judicial interpretation would be needed to determine how such a provision would apply to specific areas of the law, such as family law or criminal law. Prime Minister Ja'fari has said that he wants Islam to play a strong role in the new constitution, although he has not given specific details.

Ja'fari and the Assembly’s Shi'ite majority may seek to include in the constitution specific and detailed Islamic law-related language desirable to many Shi'ite Iraqis but objectionable to others in the country. Such a move may have success in the Assembly, but even majority support in the country does not guarantee adoption of the constitution in the referendum process. According to the Interim Constitution, a majority of voters nation-wide must approve the referendum, but if two-thirds of the voters in three or more of the provinces of Iraq vote against the referendum, it will fail. In the case of failure, the current Assembly would be dissolved, elections for a new Assembly would be held, and the drafting process would begin anew.

The Assembly could devote its energies now to constitutional drafting, and even put a constitution to the people for vote in a referendum, but the Sunnis (and the Kurds, for whose bene
fit this three-province “veto” provision was included in the Interim Constitution) have a large enough population in three or more provinces to have a good chance at defeating it. A failed referendum would be an unaffordable loss of human energy and resources and would only further polarize factions and interest groups in the country. The Assembly must produce a constitution that is sufficiently inclusive of the population’s desires in order for it to be successful. Thus, the Assembly members will have to negotiate and come to some resolution with the Sunnis who chose not to participate in the Assembly elections, because any constitution drafted before this reconciliation takes place will fail. The constitutional process should be put on hold until a sufficiently inclusive group—composed of Assembly members or individuals chosen by them—is ready and willing to draft it. Ultimately, Iraqis should prioritize the success of their constitution above a constitutional process that was imposed upon them.

Kristen Stilt is a law professor at the University of Washington School of Law, where her speciality is Islamic law.
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