THE IRAQI CONSTITUTION: A Referendum for Disaster


Richard Moore


UFPJ Talking Points #33 

THE IRAQI CONSTITUTION: A Referendum for Disaster 

13 October 2005 

by Phyllis Bennis 
Institute for Policy Studies

    The constitutional process culminating in Saturday's
    referendum is not a sign of Iraqi sovereignty and democracy
    taking hold, but rather a consolidation of U.S. influence and
    control. Whether Iraq's draft constitution is approved or
    rejected, the decision is likely to make the current situation
    The ratification process reflects U.S., not Iraqi urgency, and
    is resulting in a vote in which most Iraqis have not even seen
    the draft, and amendments are being reopened and negotiated by
    political parties and elites in Baghdad as late as four days
    before the planned referendum.
    The proposed constitution would strip Iraqis of future control
    over their nation's oil wealth by opening all new oil
    exploration and production to foreign oil companies.
    The imposition of federalism as defined in the draft
    constitution undermines Iraqi national consciousness and sets
    the stage for a potential division of Iraq largely along
    ethnic and religious lines, with financial, military, and
    political power devolving from the central government to the
    regional authorities. All groups risk sectoral as well as
    national interests.
    Human rights, including women's rights, individual political
    and civil rights, economic and social rights, religious
    rights, minority rights, all remain at risk.
    Instead of balancing the interests of Iraq's diverse
    population by referencing its long- dominant secular
    approaches, the draft constitution reflects, privileges and
    makes permanent the current occupation-fueled turn towards
    Islamic identity.


Constitutions can play a crucial role in founding and unifying
new or renewing states; Iraq is no exception, and in the
future drafting a constitution could play a key part in
reunifying and strengthening national consciousness of the
country. But this process has been imposed from outside, it is
not an indigenous Iraqi process, and the draft constitution
being debated is not a legitimate Iraqi product. Iraqis are
still suffering under conditions of severe deprivation,
violence, lack of basic necessities including clean water,
electricity, jobs - crafting a new constitution does not
appear high on their agenda.

The existing process of ratifying the new constitution is far
more important to the Bush administration than it is to the
majority of people of Iraq. Whether the proposed constitution
is approved or rejected on Saturday, it is a process and a
text largely crafted and imposed by U.S. occupation
authorities and their Iraqi dependents, and thus lacking in
legal or political legitimacy. The most important reality is
that the draft does not even mention the U.S. occupation, and
neither ratification nor rejection of it will result in moving
towards an end to occupation. None of the broad human rights
asserted in the draft include any call to abrogate the
existing laws first imposed by Paul Bremer, the U.S.
pro-consul, and still in effect.

Whether it is accepted or rejected, it is likely to worsen the
insecurity and violence facing Iraqis living under the U.S.
occupation, and to increase the likelihood of a serious
division of the country. If it passes, over significant Sunni
(and other) opposition, the constitution will be viewed as an
attack on Sunni and secular interests and will
institutionalize powerful regional economic and military
control at the expense of a weakened central government. Its
extreme federalism could transform the current violent
political conflict into full-blown civil war between ethnic
and religious communities. If it fails, because Sunnis backed
by significant secular forces, are able to mobilize enough
"no" votes, the result could be a collapse of the current
assembly's already weak legitimacy and capacity, and
cancellation of the planned December elections. In either
event, it is likely that resistance attacks will increase, not
decrease. And certainly the greater violence of the U.S.
military occupation will continue.

From the vantage point of the Bush administration, a "yes"
vote, however slim the margin and however dubious the
legitimacy, validates the claim that the occupation is setting
the stage for "democratization" in Iraq; this explains the
huge investment of money, political clout, and the personal
involvement/interference of Ambassador Zalmay Khalilzad in the
drafting process. If the White House was looking for a fig
leaf to cover troop withdrawals, this would be it. But there
is no indication there is any such interest in beginning to
bring the troops home, particularly since the referendum is
unlikely to lead to any diminution of violence.

From the vantage point of the peace movement, the key issue,
like that during the elections, remains that of Iraq's
sovereignty and self-determination. Whatever we may think of
this draft constitution, it has been essentially imposed on
the Iraqi people by U.S. occupation authorities, and as such
it is not legitimate. We may like parts of this draft, we may
disagree with some future Iraqi-led constitutional process -
but our obligation must be to call for Iraqis to control their
own country and their own destiny. Once the U.S. occupation is
over, and Iraqis reclaim their own nation, we will continue to
build the kind of internationalist ties with women's, labor
and other civil society organizations fighting for human
rights in Iraq, as we have with partners in so many other
countries. But while the U.S. occupation is in control, our
first obligation is to work to end it.


Saturday's referendum marks a key stage in the process of
implementing the U.S.-designed, U.S.-imposed political process
designed to give a "sovereign" gloss the continuing U.S.
occupation. The process was set in place and pushed to
completion by each successive U.S.-backed occupation authority
in Iraq. Initial U.S. reluctance to hold early elections was
overcome by pressure from Shia leader Ayatollah al-Sistani;
while his support insured widespread Shia backing for the
political process, it also guaranteed even greater opposition
from Sunni and some secular forces.

The Bush administration has invested a huge amount of
political capital in insuring the "success" of the
constitution process, sacrificing for the actual content of
the draft document to insure that something, almost anything,
that could be called a constitution will be endorsed by a
majority of Iraqis. The U.S. ambassador to Iraq, Zalmay
Khalilzad, has played an active and coercive role in pushing
Iraqi political forces to participate and make concessions,
and in the actual drafting of the document. The U.S. goal is
to justify the claim that Iraq is "moving towards democracy"
and that the post-invasion, occupied reality of Iraq in 2005
is somehow equivalent to the experience of the United States
at the time of the drafting of the U.S. constitution. While
numerous politicians, pundits and mainstream journalists
routinely refer to the constitution's approval as the
"necessary step towards ending the U.S. occupation once and
for all," it actually does nothing of the sort. Despite
asserting the rhetorical claim of "sovereignty" and
"independence" for Iraq, the constitution as drafted makes no
mention of the U.S. occupation. Even the "transition" section,
while insuring the continuation of the "de-Baathification"
process, support for former political prisoners and victims of
terrorist attacks, and other contemporary concerns, there is
no mention of the presence of the 150,000 or so U.S. and
coalition troops occupying the country, and certainly no call
for them to go home. The U.S.-controlled political process
violates the Geneva Convention's prohibitions on an occupying
power imposing political or economic changes on the occupied
country. At the end of the day, the constitution leaves the
U.S. occupation intact and unchallenged.


There has been large-scale opposition to the draft
constitution, particular from key elements of the Sunni
population. In a U.S.-prodded effort to "get the Sunnis on
board," changes were negotiated between one Sunni party and
the constitutional committee. Just three days before the vote,
on October 12, they agreed to two changes - allowing the
constitution to be amended by the new parliament scheduled to
be elected in December, and limiting the "deBaathification"
process to those former members of the Baath party accused of
committing crimes. The announcement may persuade some
additional Sunnis to vote, rather than boycott, or even to
support rather than reject the constitution. But the Iraq
Islamic Party is only one, and by far not the most
influential, of the many Sunni-dominated political forces in
Iraq, and it is unclear how influential they are or how
significant the changes will be.


If the voting resembles something close to an accurate
referendum ("free" and "fair" are not even possibilities,
given the dominance of U.S. control of the drafting and
conducting a vote under military occupation) the current draft
constitution is likely, though not certain, to be approved by
a small majority of Iraqi voters. It remains unclear, even
with the new changes, whether the majority of the Sunni
population will participate and likely vote "no" on the draft,
or will boycott the referendum altogether. It also is
uncertain how many secular Iraqis of all religions and
ethnicities may reject the constitution. There are clear
indications that most Iraqis believe the constitution has been
drafted in a process from which they are largely excluded;
international news outlets report that most had still not seen
the text only days before the referendum.


The major debates between Iraq's ethnic and religious
communities, as well as between secular and Islamic
approaches, sidelined any debate over crucial economic,
especially oil, policy decisions in the constitution. The
draft asserts that "Oil and gas is the property of all the
Iraqi people in all the regions and provinces," and that the
federal government will administer the oil and gas from
"current fields" with the revenues to be "distributed fairly
in a matter compatible with the demographic distribution all
over the country." But that guarantee refers only to oil
fields already in use, leaving future exploitation of almost
2/3 of Iraq's known reserves (17 of 80 known fields, 40
billion of its 115 billion barrels of known reserves), for
foreign companies - because the next section of the
constitution demands "the most modern techniques of market
principles and encouraging investment." Further, Article 11
states explicitly that "All that is not written in the
exclusive powers of the federal authorities is in the
authority of the regions." That means that future exploration
and exploitation of Iraq's oil wealth will remain under the
control of the regional authorities where the oil lies - the
Kurdish-controlled North and the Shia-dominated South,
insuring a future of impoverishment for the Sunni, secular and
inter-mixed populations of Baghdad and Iraq's center, and sets
the stage for a future of ethnic and religious strife.

While the specifics of oil privatization are not written into
the text of the draft constitution, they are consistent with
the proposed Iraqi laws announced in August 2004 by the
U.S.-appointed interim Prime Minister Iyad Allawi. He called
for private companies, including foreign oil corporations, to
have exclusive rights to develop new oil fields, rather than
the Iraqi National Oil Company, as well as at least partial
privatization of the INOC itself, thus essentially selling off
Iraq's national treasure to the highest foreign corporate


The division of Iraq into three major ethnically- or
religiously-defined regions or cantons remains a long-standing
fear of many Iraqis and many people and governments across the
region and around the world, and the most important basis for
opposition to the draft constitution. In historically secular
Iraq, the shift in primary identity from "Iraqi" to "Sunni" or
"Shia" (although Iraqi Kurdish identity was always stronger)
happened largely in response to the U.S. invasion and
occupation; it does not reflect historical cultural realities.
The draft constitution promotes not just federalism as a
national governing structure, but an extreme version of
federalism in which all power not specifically assigned to the
central government devolves automatically to the regional
authorities - setting the stage for a potential division of
Iraq largely along ethnic and religious lines. The draft
anticipates a weak national government, with financial,
military, and political power all concentrated within regional
authorities. The proposed constitution states directly that
all powers - military, economic, political or anything else -
"except in what is listed as exclusive powers of the federal
authorities" are automatically reserved for the regional or
provincial governments. In all those areas of regional power,
the provincial governments are authorized to "amend the
implementation of the federal law in the region" meaning they
can ignore or override any constitutional guarantee other than
foreign affairs or defense of the borders.

Besides the economic/oil conflict, this means that regional
(read: religious and/or ethnic) militias accountable to
political parties and/or religious leaders will be given the
imprimatur of national forces. The process has already
undermined Iraqi national consciousness, and sets in place
risks for both national and, ironically, sectoral interests
affecting each of the groups - even the most powerful.

Shia -
    Iraq's Shia majority (about 60%) are the dominant force in the
    existing government and security agencies, and in alliance
    with the Kurds, dominate the constitutional drafting process.
    The constitution is widely understood to favor their
    interests, and by instituting a semblance of majority rule and
    according to some sources by privileging religious power
    within the government and court systems, it does so. But
    despite recent turns towards religion, many Shia remain very
    secular, and not all Shia want to institutionalize religious
    control in either regional or national governments. The
    federalism provisions, including the potential to establish a
    Shia-dominated "super-region" in the nine oil-rich provinces
    of the south, is also a favorite among many Shia. However, the
    extreme federalism has the parallel effect of largely
    constraining Shia control to the southern areas (however
    oil-rich) where they form the largest majority population,
    thus limiting Shia influence in the country overall. Many Shia
    live in Baghdad (actually the largest Shia city in Iraq) and
    other mixed areas outside the southern Shia-majority region.
    The revered Shia leader, Ayatollah Ali al-Sistani, has spoken
    strongly against dividing Iraq, but the constitution sets the
    groundwork for exactly that.
Sunni -
    Iraq's Sunni population is dominant in small areas in central
    Iraq including Baghdad and its environs. With the
    constitution's strong focus on building regional economic,
    political and military power, the Sunnis as a community stand
    to lose the most. With major economic power - read: control of
    oil income - resting with the regional governments, the Sunnis
    will suffer because the area they dominate in central Iraq is
    devoid of oil resources. (See "Control of Iraqi Oil" above.)
    Following the large-scale Sunni boycott of the June 2005
    election, they are underrepresented in the national assembly,
    and have faced the largest proportion of exclusion from jobs,
    the military, and the government under the "deBaathification"
    process. Last-minute changes to the draft constitution,
    including limits on deBaathification may pacify some Sunni
    anger, but is unlikely to result in full-scale proportional
    involvement and empowerment in the post-referendum political
    Iraq's Kurdish population, about 20%, is largely (though not
    entirely) concentrated in the northern provinces. They have
    the longest history of a separate ethnic/religious identity of
    any of Iraq's major groups, and their search for independence
    or autonomy has long roots, strengthened by years of
    oppression by various central governments in Baghdad. Iraq's
    Kurdish leaders are the closest allies of the U.S. in Iraq,
    having provided support to the invasion and occupation even
    before the U.S. military attacks began. Because of U.S.
    protection during the 12 post-Desert Storm sanctions years,
    the Kurdish region also had access to more money (through an
    intentional distortion of the oil-for-food distribution of
    Iraq's oil funds), international ties through open borders to
    Turkey and beyond, and the development of U.S.- and other
    western-backed civil society institutions than any other
    sector of Iraq. They are by far the best prepared and the most
    eager for control of regional oil income (their zone includes
    rich northern oil fields, especially if they end up
    incorporating the once-Kurdish but now overwhelmingly mixed
    area around Kirkuk) and a weakened central government. Their
    regional militia, the pesh merga, are also by far the most
    powerful of any Iraqi military force. Some Kurdish forces,
    however, are already critical of the draft constitution
    because their oil-rich three-province region would be dwarfed
    by the even more oil-rich Shia-dominated nine-province region
    in the south.
Secular forces -
    Along with Palestine, Iraq was historically the most secular
    of all Arab countries. The draft constitution, while vague in
    many details, certainly lays the groundwork for a far greater
    role for religious authorities in governmental and judicial
    institutions. Many secular Iraqis, as well as Christians, are
    dismayed by the privileging of Muslim clerics within the
    constitutional court, for example, as well as the regional
    empowerment that allows local/regional governments to choose
    sharia, or Islamic law, as the basis for some or all of its
    court jurisdiction rather than secular laws.


Officially the draft constitution includes far-reaching
protections of human rights, including a wide range of
political and civil rights, and explicitly women's rights,
saying that says Iraq will "respect the rule of law, reject
the policy of aggression, pay attention to women and their
rights, the elderly and their cares, the children and their
affairs, spread the culture of diversity and defuse
terrorism." Economic, social and cultural rights are
explicitly protected in language far stronger than that of the
U.S. constitution and Bill of Rights, or that of most other
countries. But there is contradictory language as well. The
draft states that "(a) No law can be passed that contradicts
the undisputed rules of Islam. (b) No law can be passed that
contradicts the principles of democracy. (c) No law can be
passed that contradicts the rights and basic freedoms outlined
in this constitution."

Whether basic freedoms will trump Islam or vice versa, and
crucially, who will decide, seems a dangerous risk.
Ultimately, instead of balancing the interests of Iraq's
diverse Muslim majority with its once-dominant secular, the
draft constitution reflects, privileges and makes permanent
Iraq's current occupation-fueled turn towards Islamic

"Apocalypse Now and the Brave New World"

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