Iraq and Gulf Analysis

Time to Revise the Iraqi Constitution?

Posted by Reidar Visser on Friday, 21 October 2011 20:22

Does Iraqi really need more problems right now? Is there not already a complete stalemate on such momentous pieces of legislation as the oil and gas law and the federal supreme court law? Can parliament realistically be expected to accomplish significant things when it cannot even agree on its own bylaws or indeed on exactly who the members of parliament are?

Against that backdrop, the sudden call by members of Iraqiyya this week for the appointment of a new parliamentary committee to urgently revise the Iraqi constitution from 2005 inevitably comes across as somewhat unrealistic. The suggested timeline of three months seems particularly utopian.   

The constitutional aspect of the matter is as follows. Article 142 of the constitution calls for the establishment of a committee at the beginning of the first parliament (i.e. in 2005-06) that should be representative of  the “components” of the Iraqi people and charged with doing a revision of the constitution within four months – to be approved by parliament with an absolute majority and subsequently in a popular referendum where it must not be rejected by two thirds of the voters in any three governorates.

In other words, the constitutional revision belongs to the special category of time sensitive issues in the Iraqi constitution. Other such items include the law for the formation of regions (whose 6-month deadline was violated by some months but nonetheless did produce an actual piece of legislation in October 2006) and the settlement of Kirkuk and other disputed-territories issues (supposedly before 31 December 2007 but not yet implemented).  

A constitutional revision committee was eventually formed in October 2006, months past the deadline for the completion of its work. It did produce some draft changes in 2007 and wrote everything up in 2009. However, this was never considered a final package of revisions and was never voted on.

Inevitably, the question today is whether the new Iraqi parliament can legally form a new constitutional revision committee, and, if so, whether its revisions can be approved under the special rules specified under article 142 of the constitution.  (“Ordinary” constitutional revision under article 126 requires a two-thirds parliamentary majority and a popular-referendum majority.) The constitution clearly mentions one committee only, but many of the original committee members lost their seats in the March 2010 elections, making it quite unrealistic to revive the old committee. Also, if a new committee is indeed formed, should it start afresh or continue on the basis of the rather toothless draft of revisions prepared by the previous committee?

The likely political dynamics of any such new committee is also an open question. Normally, constitutional issues should bring together the Shiite Islamist State of Law alliance of Prime Minister Nuri al-Maliki and the secular Iraqiyya alliance of Ayad Allawi against the Kurds and the Shiite Islamist Islamic Supreme Council of Iraq (ISCI). In theory, both State of Law and Iraqiyya are sceptical to the extension of the federal principle to the rest of Iraq beyond Kurdistan in the way it was enabled in the 2005 constitution (when ISCI and the Kurds dominated). Lately, however, personal rivalries between Allawi and Maliki have prompted Iraqiyya to take surprising positions on several constitutional questions, including supporting the Kurdish stance on the oil and gas law. If recent trends are anything to go by, this could easily turn into a renewed debate about such inventions as the national council for high policies instead of clearing up the existing framework. Indeed, in announcing their desire to reform the constitution, politicians of Iraqiyya seemed to focus mostly on anti-authoritarianism and the dispersal of power, which might well pull them closer to the Kurds than to Maliki on many questions.

The constitutional mandate for a new committee seems unclear in the extreme. Whether it could actually arrive at a package of revisions seems doubtful. Still, there are no signs that parliament is able to move forward on other critical issues at this time. Maybe another revision committee could at least create a new forum with the potential to avoid a mere replication of the frontlines that are having such a destructive impact on most other spheres of Iraqi politics at the moment?

6 Responses to “Time to Revise the Iraqi Constitution?”

  1. Reidar,
    Indeed the constitutional mandate is unclear, as is the running of future elections, particularly after the clear intentions of the US to withdraw before X-mass. Colin Powell said: If you break it, it`s yours. Iraq is broken and the US seems to be writing its investment off. Is Obama’s speech of today just a pressure tactic by the US as some Kurds see it?

  2. Santana said

    Reidar,

    You are right- the call is unrealistic….not a bad idea but nevertheless unrealistic because we have a pure dictatorship and Maliki doesn’t have to do anything Iraqiya asks for.

    I love the quote below …

    James Madison said this in 1788

    “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many and whether heriditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”

  3. Reidar Visser said

    Faisal, the US debate on Iraq right now confuses me. It became clear in early August that there would be no second SOFA and yet American pundits kept discussing that option before suddenly “discovering” some weeks ago that it wouldn’t happen after all. Of course, as I and others have tried to argue before, that has actually been pretty clear since November 2008.

    With respect to instructors, I guess the loophole in Obama’s speech might be the following:

    As I told Prime Minister Maliki, we will continue discussions on how we might help Iraq train and equip its forces — again, just as we offer training and assistance to countries around the world.

    There might be some room for negotiations in there, but I would be surprised if the Iraqis should suddenly turn around and offer immunity for instructors.

    The thing is, the Obama administration don’t feel the same kind of ownership for the Iraq conflict that the Bush administration felt – rightly so, one could say. The sorry consequence, though, is they have an I-told-you-so argument ready at hand if things should go awry post-withdrawal.

    Santana, I think one can argue that Maliki doesn’t have to own the legislature if the others could only get their act together!

  4. observer said

    Reider,
    Is it the “if the others could only get their act together”, or is it that US (and Iran incidentally) that supports the Maliki and pressures “the others” not to do anything that might undermine Qaid Al Dharora of later days.
    Cheers

  5. I’m curious. Was there no talk about readressing the rights of minorities in the country (removing the language on Islam as the religion of the nation might help too)?

    – Nick

  6. Reidar Visser said

    I don’t think any Iraqis, including the minorities, expect the references to Islam to be scrapped. The major point with regard to minorities as far as constitutinal revision is concerned probably relates to personal status law, where some are calling for a secular alternative. However, on this kind of issue, ironically perhaps, religious leaders of the non-Muslim communities seem to find common cause with the Islamists since current arrangements provide them with legal autonomy and generally reinforce communitarian identities.

    A few Christians have been calling for the right to establish federal regions by parcelling out subunits from existing governorates. Only a far-fetched reading gives them that right under the current constitution and they may want to seek clearer language. Equally important, though, other Christians oppose this kind of move.

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