In Iraq's Constitution, What's Missing Is more Important than What's Included
In the months leading up to the release of the final version of the Iraqi Constitution, most commentators focused on three topics--women, Islamic law, and Federalism--as the issues that would cause negotiators the most problems. Not surprisingly, they have been at the center of the heated arguments inside the Green Zone between Shi‘i, Kurdish and (far too few) Sunni representatives.
But the problems caused by the often ambiguous wording of the Constitution on these issues are obscuring a bigger problem caused by what has been left out of the document: any language prohibiting the permanent stationing of foreign troops in Iraq or foreign control of the country's oil resources, and any curtailment of the wholesale privatization program enacted by the CPA during the occupation's first year.
The most gaping hole in the Constitution, the one that virtually guarantees a healthy insurgency for years to come, is the one around Article 108 where there should have been a clause stating that no foreign troops are allowed to maintain long term or permanent bases on Iraqi soil. Such a clause is the absolute sine qua non for the termination of the Sunni insurgency and the pacification of Muqtada' al-Sadr's unruly forces. Without it, the violence will certainly continue for the foreseeable future.
It's no surprise that the clause is missing, as the US has no plans to withdraw all its troops from the country in the near future. All the arguments back and forth about troop "reductions," "withdrawals" or "draw-downs" have been about just that--reducing troop levels to a more acceptable (to Americans, that is) number, perhaps twenty or thirty thousand, in half a dozen or more hardened bases whose construction is impossible to ignore for anyone who's been stuck on the country's clogged highways while massive construction convoys pass by.
This dynamic has placed the new Iraqi leadership is in a classic Catch-22: It can't survive without a massive US presence and so can't ask the US to leave; yet until it does just that millions of Iraqis will consider it illegitimate, no matter how democratically it is elected.
Turning to oil and privatization, during the year of official American rule over Iraq, Bremer issued half a dozen "orders" that mandated the privatization of state-owned enterprises; allowed 100 percent foreign ownership of businesses except oil, offered foreign firms the same privileges as domestic companies, and allowed unrestricted, tax-free transfers of profits out of the country.
The constitution says nothing about any of these "orders," which likely means that they will remain the law of Iraq for the foreseeable future. In fact, aside from a prohibition on non-Iraqis owning real estate in Article 23, there is no prohibition of foreign ownership of anything, including, it seems, oil.
Article 109 does say that "oil and gas is the property of all the Iraqi people in all the regions and provinces," but it doesn't prohibit them from selling their property, or specify in any manner what role foreign firms will play in its extraction and sale. Indeed, while Article 110 sensibly balances the rights of Kurds and Shi‘a living in oil rich provinces with petroleum-poor Sunnis (who received a disproportionate share of oil revenues during the Saddam years), it says nothing about who will control the production and sale of the oil other than saying that the government will "rely on the most modern techniques of market principles and encouraging investment."
This language is a recipe for significant American control over the Iraqi oil industry, even if through the back door. It is strengthened by articles 25 and 26, which state that "the state shall guarantee the reforming of the Iraqi economy according to modern economic bases… diversifying its sources and encouraging and developing the private sector." Such a "reformation" is at the heart of the kind of structural adjustment programs that have, by the World Bank's own admission, so often wreaked havoc in developing countries, particularly in the Middle East and Africa, yet have been demanded of Iraq as a conditionality for receiving debt relief and loans.
Interestingly, the three issues most commentators have worried about probably couldn't have been addressed much more neatly than they were in this document. A faulty English translation of the crucial Article 2, which rendered it as saying that no law can contradict the "indisputable rules of Islam," sounds less restrictive when the Arabic is more accurately translated as "the established laws of Islam." Since there is a lot of debate over which laws are well established-enough to be unchallengeable, Iraqi politics, judges, religious scholars and the public will just have to sort it out in the coming years--assuming the insurgency ends and allows them the luxury to do so.
This language at least allows women the chance to fight for the equality also granted to them by the Constitution, but such debates won't even take place unless there's enough of a reduction of violence to open the public sphere in which they can claim a voice.
The same can be said for the articles dealing with federalism, which have gone a long way towards balancing the clearly--and understandably--competing desires of Kurds, Shi‘a and Sunnis. If the worst criticism is in fact that it doesn't lay enough rhetorical stress on Iraq's "Arab character," as the Secretary General of the Arab League complained, then the drafters have done their job well. In fact, Article 33's "guarantee [of] protection and preservation of the environment and biological diversity" put Iraq well ahead of the United States in terms of the Government's commitment to the environment.
But as long as Iraqis see American troops and oil companies as the real rulers of Iraq, the environment, and the people, are going to continue to suffer.
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Steven R Alvarado - 9/21/2005
Historically there are some similiarities here between the quest for an Iraqi constitution and the German creation of their constitution in the post-war years. The German government under Konrad Adenauer also was not happy with the prospect of allied troops stationed in Germany long-term. However, he knew that Germany's fledgling democracy needed protection from the communist.
Adenauer also wanted re-unification with East Germany to be a stated goal of the constitution, something that was opposed by not only the Allies but also by the Soviets.
The re-unification clause never became part of the constitituion but it was always a major part of Western German policy until it actually occurred.
Under the circumstances maybe the Iraqis like the Germans may not be getting the constituion that they want(who does)but the constitution that is workable for the near future.
Jim B. Harris - 9/19/2005
I know one thing. The Iraqi people themselves will go to the poll's on 10/15/05 to vote on whether or not they want to approve the draft Constitution.
If they turn it down, and it is likely Sunni's who do vote will turn it down, then the next step will be another election in which new folks will be voted to attend a new Consitutional Congress.
If that happens, once again the people of Iraq will vote on whether or not they wish to accept it.
I think that is important to keep in mind.
N. Friedman - 9/19/2005
Very, very good argument by you. You have picked apart Professor LeVine's argument rather well.
I think it a mistake to write economic arguments into a constitution. By way of analogy, reading such limitations into US constitutional jurisprudence - which prompted most of OW Holmes better dissenting opinions (e.g. his dissent in the Lochner case) - created serious problems here.
In any event, whether or not the economics of Iraq will be to the liking of the US or, on the opposite extreme, Sweden, such, within reason, ought to be the business of the voters. Of course, the main problem in Iraq will be that as soon as the US leaves, the democracy will leave with us. Or, in simple terms, the democratic program for the Middle East is a folly. Maybe that argument is for a different discussion.
Oscar Chamberlain - 9/18/2005
I left a vital "not" out of a sentence in the second-to last paragraph.
That sentence should read "But I oppose it because I think governments should not be limited by writing an economic philosophy into the document."
John H. Lederer - 9/18/2005
Oscar Chamberlain - 8/31/2005
Your arguments here are weak and curious. You are angy about the US imposing its well on Iraq, yet you would have the constitution written in such a way as to constrain Iraqi freedom of action.
Why? If it is that you consider this whole process illegitimate, then carping about the details seems disingeneous at best. You should focus on why the process should be rejected.
If, however, you think it's at least possible that a legitimate government will emerge, then it's going to need to have all the options it can get, even ones that you don't approve of.
Do not misunderstand me. I don't like the idea of US bases there long term. But the Kurds might feel differently, and even some Shi'a and Sunni's might find a much smaller long term US presence useful, in some circumstances.
I agree it would be bad policy to for Iraq to lose control of its oil entirely, but in some circumstances, selling of some of their reserves might be logical.
The one point that I agree with you on is the "market principles" phrasing. But I oppose it because I think governments should be limited by writing an economic philosophy into the document. (This is distinct from rights, such as a takings clause, that limit the power of the government vis-a-vis the individual Iraqi)
In short, if the Iraqis actually manage to have a functioning elected government at the end of this process, I'm more willing to trust them to govern well than I am to impose restictions on them, no matter how right they seem today. You seem less willing to trust them. Why?