October 9, 2005

Constitution or Divorce Agreement?


New York Times

IF Iraq's draft constitution were an orchestral score, it would be one that let a majority vote of the woodwinds determine what key they ought to be playing in. The strings could overrule the conductor's time signature in their section of the pit. The brass and percussion sections could band together and play almost anything they wanted, although they could not secede from the orchestra.

The constitution, set to be approved or rejected by the Iraqi people in a referendum next Saturday, would allow provincial councils - the rough equivalent of statehouses - to cancel or change federal laws they did not like in all but a handful of narrowly defined areas, like drawing up foreign policy and defending Iraq's international borders.

Some constitutional authorities believe the chances are slim that this charter could keep all these disparate entities playing the same song.

"It will be, to me, the beginning of the end of Iraq as a nation-state, but it will be done through constitutional means," said Nathan J. Brown, a senior associate at the Carnegie Endowment for International Peace and author of "Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government" (SUNY Press, 2001).

" 'Death certificate' is too strong," Mr. Brown said of the draft charter. "It's a separation agreement."

Others see this constitution in an entirely different light, contending that its highly general language could still be molded by legislation and precedent into a subtle intermingling of the Islamic and the democratic that could form the basis for a form of government that would be revolutionary in the Middle East.

As an illustration of the practical challenges that a country under this charter would face, councils could nullify unwanted federal taxes or declare laws governing marriage, divorce and other family matters to be either largely secular in nature or based much more strictly on Koranic principles. Local militias could be nationalized and declared "regional guards," responsible for the internal security of a province or collection of provinces.

Still, a constitutional democracy with regions that are out of step with one another would be a more coherent and presumably more peaceful thing than what Iraq is threatening to become: a collection of independent fiefs, none truly viable as full-fledged nations, that are locked in a civil war.

That, at least, appears to be the assumption by the United States, whose ambassador to Iraq, Zalmay Khalilzad, spent months bargaining and arm-twisting to obtain this charter.

In the end, leaders of all but the disaffected Sunni minority agreed on a formula that kept Baghdad as the national capital but drained away to the provinces large amounts of its historical powers - wielded for decades by the Sunnis.

Now, people in both Iraq and the West are asking whether that charter has a chance of promoting a semblance of unity, or whether it simply codifies the centripetal forces that threaten to tear the country apart. The issue is so fraught that some analysts are already looking beyond the document and asserting that simply getting political leaders to play out the constitutional process is a sign of progress all by itself.

"What's really important is the emergence of a political class that would agree on the rules of the game," said Fouad Ajami, who teaches international relations at Johns Hopkins University.

"I don't think the constitution will make or break Iraq," Mr. Ajami said. "What will make or break Iraq is the coalition of this national will."

It is, nevertheless, the bare text of the constitution that the voters will be focusing on at least over the next week. On that score, there is an equally wide divergence of views, with some experts asserting that the language does an admirable job on things like protecting minority rights and parceling out wealth from the nation's mighty oil industry. Others contend that the same language is vague and unworkable.

And hanging over all of those calculations is a set of much broader questions on whether the details of the language matter at all given that the Sunnis, whose people form the base of the insurgency, have not agreed on the draft and that even the finest-sounding constitutions in the Middle East are ignored by the ruling elite in country after country.

As Mr. Ajami delicately put it, "I don't think countries in the region are ruled by constitutions."

With all those questions hanging over the charter even before the referendum, how is it possible to gauge its chances of becoming a functioning document that keeps Iraq from crumbling?

The first thing to keep in mind, said Noah Feldman, a professor at the New York University School of Law who advised the Coalition Provisional Authority in the early days of the occupation, is that the natural American confidence in the power of a well-written constitution is out of place in Iraq.

Even in the early days of the American republic, Mr. Feldman said, the constitutional framers understood that if their text tried to undermine accepted common law and religious rulings on the family, then the people would ignore the charter and it would never become a legislative backbone. Provisions like the Bill of Rights, wrote James Madison, would become mere "parchment barriers" where they were opposed by a clear majority of the populace.

In Iraq, as in young America, the constitution must start by creating a rule of law that is broadly consistent with local custom, Mr. Feldman said.

"I don't want to say that the text of the document itself is a sideshow," he said. But a natural mistake for Americans today, he said, "is thinking that a constitution is going to shape the facts on the ground, when in fact it's the other way around."

That view casts a positive light that is rarely seen in the West on the constitutional provisions that cover family law and the rights of women. Much attention has been showered on a provision letting the rules of a person's specific religious sect govern disputes on marriage, divorce, inheritance and the like. Women's groups have expressed fears that the provision opens the way to clerical rule.

But because human rights, the rights of women and the role of Islam in the government are not powers granted exclusively to the federal government in this constitution, they automatically go to the regions, said Peter W. Galbraith, a former United States ambassador who is the senior diplomatic fellow at the Center for Arms Control and Nonproliferation, and who advised the Iraqi Kurds during the drafting of the constitution.

That regional flexibility means that the Kurdish north can maintain courts that are entirely secular, Mr. Galbraith said. "Conversely, the south can apply religious law strictly," he said.

As helpful as that freedom could be for popular acceptance of the constitution, it could further stoke concerns that the Shiite south is well on its way to becoming an Iranian-style theocracy. Moreover, there is another critical area in which the same sort of flexibility could work against the constitution's effectiveness: the distribution of Iraq's vast oil and gas resources.

Constitutional experts say that of all the things a charter can do to produce an accord among warring groups, perhaps the most important is fairly distributing a country's natural wealth. Daniel L. Rubinfeld, a professor of law and of economics at the University of California at Berkeley who is visiting N.Y.U., said that some specific language helped insure those rights in the new South African constitution, parts of which he helped write in the 1990's.

"The constitution needs to set up a framework that assures the ability of the minorities to extract something from the majority," said Mr. Rubinfeld, who cautioned that he was not an expert on the Iraqi charter.

The challenge in Iraq is that the oil reserves are concentrated in the Shiite south and the Kurdish north, seemingly leaving the minority Sunnis vulnerable. The constitution gives control of existing wells to the federal government and of those developed in the future to the regions.

Because the wording is extremely general, said Amatzia Baram, a senior fellow at the Woodrow Wilson International Center for Scholars in Washington and a professor of Middle Eastern history at the University of Haifa in Israel, two possibilities may present themselves to the Sunnis: They may decide they have been dealt out and withdraw from the entire process, or they may hope that by voting in future elections, they can elect legislators who can turn the vague language to the Sunnis' advantage, by firming it up with laws that protect minority rights. Their decision will be critical, Mr. Baram said.

"If they are being convinced that all is lost, then certainly this constitution will be dividing the Sunnis from the rest of the population," he said. "And that would be very, very sad."

Mr. Galbraith, who said the Sunnis should realize substantial revenues from the oil fields, suggested there was not much point in complaining about any dissonances in the music that Iraq and the rest of the world will hear if the constitution is ratified. Given the realities in Iraq, this was the best anyone could have done, he said.

"There wouldn't have been a constitution if there wasn't this one," Mr. Galbraith said. "And not having a constitution would have broken the country up."