How Faults With Iraq’s Constitution Undermines The Country, Interview with Constitutional Scholar Zaid Al-Ali

In October 2005, 79% of Iraqi voters came out in favor of a new constitution. The document was drafted in only a few weeks however, due to pressure from the United States. While the new government it created included many basic rights like freedom of association, and the right to education and work, it also had more controversial issues like creating a new federal system. Most of these new rules were not fleshed out in the final draft however, and were to be finalized in an amendment process that has never happened. Because of those vagaries, and the lack of further legislation, every political party in Iraq claims that its position is supported by the constitution making it a source of contention rather than unity. What follows is an interview with Zaid Al-Ali, a lawyer who has worked for the United Nations on constitutional and parliamentary issues on why he thinks the 2005 constitution is a flawed document. He just published a book The Struggle for Iraq’s Future: How Corruption, Incompetence and Sectarianism Have Undermined Democracy. He can also be followed on Twitter @zalali.


1. Many countries that have written constitutions in the last several decades have had outside help and influence whether from foreign governments or international bodies such as the United Nations. In Iraq however, the U.S. had an overwhelming influence by setting the timetable, influencing the make-up of the drafting committee, and the final document. The Americans for instance, decided that there would be elections for an interim parliament in January 2005, who would then select a committee to write the constitution, which wasn’t put together until May, and their work was due by August, for a final referendum in October. Was this enough time to do all of the necessary work, and what was the overarching goal of Washington to have the document completed in just a few months?


It was absolutely not enough time. In countries that emerge from harsh dictatorships such as Iraq, political forces and society as a whole need a lot of time to recover and to debate a set of vital issues, including what type of state they want to establish for themselves, and what relationship the state should have with various communities and with the individual. You need to be able to have a national debate on issues like federalism, fundamental rights, the role of religion, etc. Once again, in countries like Iraq, which emerged from a period of decades in which none of these issues could be discussed in a critical or free manner, we were absolutely not in a position to have a national debate on something like federalism by 2004 and 2005. And if a national debate had to take place, it should have taken place over a significant period of time, and certainly not rushed. Rushing these issues can lead to all sorts of unexpected outcomes in relation to really fundamental issues, which is far from desirable.


Something else is that when you are intent on redesigning the state in countries like Iraq, it is advisable to do so in as scientific a way as possible. One of the things that you would do is look into your own institutions of state and study which operate effectively and which do not. You would study your anti-corruption framework in detail and figure out where the cracks lie. You would also try to understand if your due process requirements are being respected in practice, and if not, if there is an institutional reason for that. These are issues that take time, particularly in countries like Iraq where free debate and critical analysis was forbidden for decades. Once again, to rush these issues or to just ignore them, which is what eventually happened in Iraq is to invite either unexpected outcomes or simply the continuation of practices from the previous regime, which is also what ended up happening in Iraq.


By way of comparison, Tunisia’s new constitution took two years to draft in a very free and relatively peaceful environment. All in all, South Africa took 7 years to draft its text. Kenya also took that amount of time to draft its constitution. Each country needs to decide on its own what amount of time it should take to draft its constitution; and that process should not be overtly influenced by foreign nations as was the case in Iraq.


In terms of why Washington was so determined to finish the drafting process so quickly, I can’t really speak as to what their motivations were, and I wonder if they really understood what they were doing. Certainly they were determined to transition as soon as possible to a fully “legitimate” according to their definition of the term, constitutional system of government that would be in place for a full legislative term. Some analysts have speculated that the U.S. was purely motivated by domestic considerations: by insisting in August 2005 that the drafting process should come to an end immediately, they were essentially ensuring that a new permanent government would be in place before the 2006 mid-term elections. A 6 month extension, which was allowed under the Transitional Administrative Law (TAL), would probably have meant that the government might not be formed before the mid-term elections.


The main question however is whether they realized what a disaster they were creating and I am still unsure about that. There is evidence that they realized that the system of government that they were creating did not reflect the majority of what Iraqis wanted, but aside from that, they will have to answer for themselves as to why they proceeded in the way that they did.


2. The issue of Sunni representation was always a pressing one, while writing the constitution. Of the original 55 members of the constitutional committee Iyad Allawi’s Iraqi National List got 8 seats, some of which were Sunnis, and there were two other Sunnis as well. This was due to the fact that the Sunni community largely boycotted the January 2005 vote. In June 15 Sunnis were selected as permanent members, and 10 became advisers, but they weren’t approved until July, just one month before the document was to be finalized. Were the Sunni members able to get their opinions included in the constitution, and how did that affect the October referendum?


The issue of “Sunni representation” in the constitutional drafting process has been very misunderstood. The common understanding is that after the 15 Sunnis were added to the committee, that they were not included in the discussions and were essentially ignored, which is what led to the rejection of the constitution in Sunni-majority provinces in October 2005. The drafts that were produced by the constitutional drafting committee tell a very different story. What we know by reviewing the drafts is that the expanded constitutional drafting committee was making progress towards a constitution in which the central government would have played a much more important role than under the TAL, the interim constitution that was drafted by US officials and two Iraqi-Americans. It turns out that most of the Sunni and Shia Islamists who were on the constitutional drafting committee had very similar ideas about what their future state should look like: they wanted for the state to be heavily influenced by religion, and also wanted for the central government to be the dominant force in the state and not the regions and provinces.


In the end however, because the expanded committee was unlikely to meet the August 2005 deadline, some of the parties to the process and the U.S. embassy prevented the deadline from being extended by 6 months, and shut out a large number of drafters (most of the Shia and Sunnis) from the rest of the discussions altogether. Suddenly, once again, by tracing the evolution of the drafts, the tone of the negotiations shifted altogether in favor of a very loose federation in which the central government played hardly any role. Then, when the elected interim parliament , which was supposed to be responsible for putting together the draft demanded to be given the right to debate and vote on the draft, they were snubbed. Instead, Hussein Shahristani, who was deputy speaker, merely read the draft to them without giving them a chance to debate or vote on it.