Constitution-Making Under Occupation

The manner in which the occupation authorities affected
and intervened in Iraq’s constitutional process

Zaid Al-Ali

1. There are three ways in which the occupation intervened in the context of Iraq’s constitution-writing process. Firstly, the occupation authorities selected and affected the makeup of the commission that was charged with drafting Iraq’s transitional law, and its permanent constitution. Second, the occupation determined the limits and the parameters within which the constitution was to be drafted. Third, the occupation authorities intervened directly in order to safeguard its interests in the context of the constitutional negotiations.

2. Firstly therefore, the Occupation intervened in Iraq’s constitutional process by determining in advance which parties were to take part in the drafting process. This was first through the creation of the Governing Council, and second through the parliamentary elections that took place in January 2005.

3. In 2003, the Occupation Authorities created a body known as the Governing Council, which served as a type of advisory body to the administrator of the Coalition Provisional Authority, Paul Bremer III. The creation of this body was obviously problematic for the Occupation, as it would have been for any body, as Iraq has no political class to speak of, as a result of the Baath’s one party state, and through the banning of the Baath party. This gap was filled through the Occupation Authorities nominating to the Governing Council all of the United States’ Iraqi allies, regardless of whether or not these parties had any previous experience in government, or of whether they had any constituent basies of support within Iraq.

4. The result was that the Occupation provided a platform to the United States’ allies, through which they were able to make themselves known and accepted to the Iraqi public, who had very little choice in the mattter.

5. In addition, the occupation based the formation of the Governing Council, as well as Iraq’s entire political structure on sectarian principles, thereby predetermining the priorities of the drafting process. The occupation determined that every governmental body should have representatives from Iraq’s different relgious and ethnic groups, and therefore that it was more important to hire and appoint along this basis, then according to professional qualifications and competence. The effect was that when some of the members of the constitutional committee suggested that a clause be included in the constitution which would forbid governmental appointments on the basis of sect, race or religion, this was set aside by all the parties involved.

6. The only other division that exists in Iraq is political, and the political lines are drawn between those that accept to participate in the political process in the context of foreign military occupation and those that do not. By definition, the latter group could not be drawn into government and so the occupation authorities were left only with those individuals who worried more about what they could gain for themselves than for the country as a whole. It should therefore not come as a surprise that the documents that these individuals have drafted reflect their thinking, which is based on sectarianism.

7. The second way in which the Occupation authorities determining in advance which parties were to take part in the drafting process was through the parliamentary elections which took place in January 2005.

8. It will be recalled that these elections were organised in the context of the Coalition Provisional Authority’s Order Number 97, which relates to the organisation of elections and of political parties in Iraq.

9. Section 4(3) of Order Number 97 provides in relevant part that “(a) no political entity may have or be associated with an armed force, militia or residual element […]; “(b) No political entity may be directly or indirectly financed by any armed force, militia, or residual element; […] “(h) Political entities must strive, to the extent possible, to achieve full transparency in all financial dealings. In this regard, the Commission may issue regulations with respect to financial disclosure.”

10. All these provisions were violated by all of the United States’ major allies in the context of the parliamentary elections that took place in January 2005. Examples include (1) the Supreme Council for the Islamic Revolution in Iraq, which is affialiated to the Badr Brigades and which did not declare the source of its financing; and (2) the Kurdish Alliance, which is in full control of the peshmerga, and which did not declare the source of its financing. No effort was made to ensure that the electoral law was enforced during the elections.

11. Thus, those parties who were affiliated, associated or allied with the United States, or with other foreign nations that have interests in Iraq were provided with an unfair advantage in the context of the elections that took place in January 2005. Independents, nationalists, and those parties that decided to play by the rules were, however, at a distinct disadvantage. The result was therefore that the parliament and the constitutional committee were dominated by those parties that violated the electoral law.

12. The third way in which the Occupation affected the constitutional process in Iraq was by determining the framework within which the constitution was to be drafted.

13. It is by now well known that the Transitional Administrative Law (hereinafter referred to as the “TAL”) contains a number of provisions which greatly restrained and confined the Iraqi constitutional process. Most modern constitutions are written over a period of years. The Occupation considered however that Iraq should be able to form a government and to write a constitution within 6 months. In addition, almost no provision was included in the TAL that allowed for an extension of the time frame.

14. The major effect of this was to restrain the amount of time available for the drafting process. This affected both the substance of the final draft as well as the process.

15. Firstly, from a substantive point of view, the Occupation’s framework affected the provisions contained in the draft constitution relating to the federal structure of the country. These provisions are extremely problematic not because of what they indicate but because of what they omit to mention. By way of example, article 116 provides that: “One or more governorates shall have the right to organize into a region based on a request to be voted on in a referendum submitted in one of the following two methods: (1) A request by one third of the council members of each governorate intending to form a region; (2) A request by one-tenth of the voters in each of the governorates intending to form a region.” The article does not indicate whether there is a limit to the number of governorates that can join together and form one region. As a result, in theory it is possible for all the governorates in the country to join together and form one single region. What is more likely to happen in practice is that a Shia region will form in the south of the country, and a Sunna region will form in the center and west.

16. Another example of how the Occupation’s framework affected the substance of the constitution is in terms of the formation of the parliament under the new constitution. Almost every federal state throughout the world has two chambers of parliament. The second chamber is designed to allow the different states to be represented at the national level. Previous drafts from Iraq's constitutional committee provided for a strong second chamber of parliament, which would be able to block legislation in certain circumstances. However, the final draft provides that the composition of the second chamber is to be determined by a law to be passed by the first chamber of parliament. This is extremely unusual for several reasons: firstly, the first chamber is to determine the weight and importance of the second chamber, which in practice could mean that the second chamber could be reduced to the status of an advisory committee. Secondly, the draft constitution does not provide for a mechanism through which the second chamber can block legislation. What this probably means is that although the parties to the negotiations were unable to decide upon the composition of the second chamber, they were so determined to submit the constitution to the national assembly, that they were willing to leave the issue to a later date, even if this meant that the entire second chamber would be left without a role as a result. Thirdly, based on the wording of these provisions, the first chamber of parliament is capable of passing a law by itself, which in effect means that the second chamber is made completely redundant by the constitution itself.

17. Secondly, in terms of the process, the major effect of the Occupation’s framework was to create a situation in which the constitution has been approved by the national assembly over the objections of one of the country’s major communities. This is precisely what a constitution is designed to avoid. A constitution is never supposed to be imposed on any particular community within a country. This could lead to catastrophic results, depending of course on how the constitution is implemented.

18. It should be noted that there are limits to the amount of influence that the occupation has been able to exercise. This is particularly true in terms of the process. The best example of this is the manner in which Ayatollah Sistani rejected Paul Bremer’s suggestion that the current national assembly be appointed through a complicated caucas system.

19. It should be recalled that on June 30, 2004, Sistani issued a fatwa declaring Bremer’s plan for an appointed body “fundamentally unacceptable” and ruling that “general elections must be held so that every eligible Iraqi can choose someone to represent him at the constitutional convention that will write the constitution. The American led occupation was forced to accede to Sistani’s ruling that only an elected body would have the legitiamte authority to draft a constitution.

20. The third and final way in which the occupation influenced the constitution making process was by intervening directly in the writing of the constitution in order to safeguard its interests. This was done both during the drafting process that led to the TAL, and during the constitution making process that ended just a few days ago.

21. In terms of the TAL, one example of direct intervention is that the occupation asked the emerging Iraqi democracy to accept a lower threshold for treaty ratification than the Founders of the United States had deemed appropriate for themselves. It is clear therefore that the Bush administration wanted to conclude a treaty with the Iraqi transitional government granting the United States long-term military bases in Iraq, and perhaps other concessions as well. In the end, the American pressure prevailed, and the two thirds requirement for treaty ratification was dropped from the TAL despite the objections of the Iraqi negotiators.

22. In terms of the permanent constitution that was presented to the Iraqi national assembly on August 28, 2005, there is obviously not much literature that can be referred to yet, and much of the information that would be helpful on this issue is still confidential. Over the coming weeks and months, we hope to be hearing more specific information about this.

23. In the meantime, there are several issues that we can highlight:

· Firstly, it was confirmed that a few days before the official end of the negotiations, the US ambassador put forth his own draft constitution to the constitutional committee.

· Secondly, based on the drafts that were leaked to the press, we can see that there are a number of articles that have disappeared from the final draft. Although we can only speculate for the time as to why these articles were removed, and as to the circumstances of their removal, it will be helpful, in the context of all of the above, to set out some of them here.

· One article contained in a previous draft provided that “[t]he erection of foreign military bases in Iraq is forbidden. In case of emergency, the parliament may, by a two thirds majority of its members, may deviate from this article.” This article was dropped from the final draft of the constitution.