JURIST Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that, as its new government matures, Iraq must address critical issues left ambiguous in the initial constitution if it desires to remain revelavant and united …

UN officials have recently reported that sectarian based execution style killings have surged in Iraq. This is a matter that requires rather urgent attention, in particular in light of the rather ambiguous legal and constitutional circumstance in which Iraq finds itself.

As I have argued most extensively in my book, after much debate, the Iraqi constitutional drafters ultimately determined that issues of core dispute among the country’s disparate ethnic and sectarian communities simply could not be resolved all at once at a constitutional bargaining table. In fact, even to attempt such a resolution ran the risk of further national destabilization, because it would require one community to impose its vision on the others over their objection, hardly a basis on which to build a harmonious polity. As such, the drafters chose in large part to go the course of strategic ambiguity where divisions arose. Thus, matters upon which there was broad agreement (for example, the rights and freedoms that should be granted to Iraqis vis a vis their government) were drafted clearly and forthrightly. By contrast, matters over which there was much dispute, such as the role of Islam in the state or the extent to which the state would be federal in its structure, were left for future political resolution. The idea was that the disparate communities needed more time to work together, in order to develop piecemeal, incremental solutions over immediate, far reaching ones that were simply unattainable.

By and large, the approach worked for a time. The once highly divisive issue of federalism was largely resolved in an incremental fashion in favor of an asymmetrical federal state, where one region, that of Iraqi Kurdistan was granted broad autonomy while no other provinces have been. Similarly, the one issue that tends to divide so many Arab states after the Arab spring, that of the role of Islam in the state, is hardly so divisive in Iraq, partly due to the decisions of Iraq’s Federal Supreme Court and partly due to the increased efforts of the parties to find a way to work together to find a broadly harmonious resolution. It is therefore rather ironic that of the many issues dividing Sunni from Shi’i in contemporary Iraq, the actual role of Islam in the state is not one of them. The matter, that is, is almost entirely divorced from theology, because there is not as great a dispute over the role of religion as was once believed. It took time and extended dialogue and compromise to reach to that resolution.

At the same time, this type of “incremental constitutionalism,” to use a term coined by the learned Hannah Lerner, has its limitations. Most particularly, when all divisive matters are not resolved in a broad constitutional drafting session, the result is that the constitution is not on its own much of a solution to festering disputes as a means to resolve such disputes gradually, over time. This means that it is critically important that the parties continue to engage in extensive dialogue and continue to work together to cobble together piecemeal solutions upon which further constructive reconciliation efforts might be made.

While this has been done in some respects as regards matters such as federalism and the role of Islam, it has not in many others. In particular, Sunnis do not feel as if they have a meaningful voice in state governance and their broad alienation from the state has led to widespread protests across Sunni regions. The incredible failure of the Iraqi government to improve the lives of its citizenry over the span of years has hardly helped. The result of this has been a continuing deterioration of relations across Iraq’s strong ethnic and sectarian divides, after a post constitutional period, in 2008 and 2009, in which there was much promise of a brighter future.

Now, with the seeming rise of sectarian killings, matters could devolve even further. It is therefore critically important that Iraq’s bickering communities find a way to work together to reverse the trend, not so much to find a permanent solution to their perduring disputes, but rather to find a means to work toward building more constructive piecemeal approaches, as they had been doing not very long ago.

Haider Ala Hamoudi is an Associate Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament, responsible for developing amendments to the Iraqi Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He has just published his latest book, “Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq,” chronicling the drafting and subsequent evolution of the Iraqi Constitution and published with the University of Chicago Press. He maintains a blog on Islamic Law.

Suggested Citation: Haider Ala Hamoudi, Iraqi Constitutional Division, JURIST – Forum, Dec. 28, 2013, http://jurist.org/forum/2013/12/haider-hamoudi-iraqi-division.php