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To: Interested Parties
From: Caroline Wadhams and Max Bergmann

Iraqi analysts say that an equitable distribution of power and resources and overcoming distrust and fear in their deeply polarized society are challenges that the nation's new leaders must confront as they move toward drafting a new constitution. Their analysis of the situation helps explain the current impasse in the National Assembly, which met without result on March 29, and assists us in understanding what the future may hold for Iraq.

Three experts – Laith Kubba, Senior Program Officer at the National Endowment for Democracy, Rend Al-Rahim, Executive Director of the Iraq Foundation, and Nijyar Shemdin, U.S. Representative of the Kurdistan Regional Government – spoke on March 22 at the Center for American Progress. In their remarks, the panelists laid out a series of criteria and tests that Iraq must meet in order to create a legitimate constitution and provide a stable foundation for representative government.

Criteria for creating a legitimate constitution:

  • Inclusion of Sunnis. Stability and practicality demand that Iraq reject the "politics of victor-take-all," despite the apparent Sunni boycott of the January elections. The panel took special note that the Transitional Administrative Law (TAL) allows for any three of the eighteen provinces in Iraq to veto a constitutional draft if two-thirds of the population in those three provinces do not approve. Therefore, any of Iraq's three main groups (Shia, Sunni and Kurds) have the ability to reject the constitution.
  • Consultation with civic groups. Civic groups, the media, and international experts outside of the National Assembly must participate in the drafting, serving as what Mr. Kubba called an important check on the politicians' desire to draft a constitution that reflects their will and ideas, rather than "the deep trends and currents in the country."
  • A living document. The panelists stated that the drafting of the constitution is just one step in a longer democratic process, and that amendments should be allowed as the political situation evolves.

Critical tests for drafting the constitution:

  • Power sharing agreements. Dividing power and resources among all factions in Iraq is highly contentious. Whether ethnicity has always been a defining factor in Iraqi society is debatable, but the panelists agreed that modern-day Iraqi society is deeply polarized, largely along ethnic lines. Iraqis will need to decide whether they will embrace a system of proportional representation or a winner-take-all system; whether a certain number of government positions will be reserved for minorities and women; and whether cabinet positions will be allocated communally or by a "system of undifferentiated, universal citizenship."
  • Distribution of resources. Resources are not divided evenly throughout Iraq. Panelists discussed the importance of deciding how resources are distributed among peoples and regions. Iraqis will need to determine how to balance central vs. regional government demands. Other questions include: Will resource allocation be determined by population, need, or where the resources exist? Who will be in charge of managing distribution?
  • Kurdish autonomy. Having enjoyed virtual independence for more than a decade, the permanent place for Kurds in Iraq's new political establishment must be determined. Many Kurds have expressed a desire for independence from Iraq, but Shemdin argued for an autonomous Kurdish state within Iraq. Shemdin said that as long as Kurdish rights were recognized, the Kurdish population would want to stay within the Iraqi nation-state. Kubba, however, stated that there is a strong Kurdish national movement that is pushing ultimately for self-determination and that Kurdish politicians have created a dynamic that will be very difficult to reverse. Politicians will also need to determine the status of Kirkuk, which Kurds have demanded become an official part of Kurdistan. Kirkuk, a city sitting on 40 percent of Iraq's oil, possesses an explosive ethnic mix.
  • Mitigation of internal ethnic conflict. The panelists spoke of the need for Iraqis to create a sense of universal citizenship, where they put state citizenship above ethnic identities. As Al-Rahim states, "We are, in Iraq, all speaking out of fear. Either our past experiences in Iraq lead us to fear the future, or the change that has happened leads us to fear the future. Trust has broken down between ethnic communities because of the persecution and horrors of the past."
  • Framing of rights: group vs. individual. Shemdin stated that the Kurds want rights to "emanate from the individuals to the local governments to the central government," so that authority will be bottom-up and not top-down. Kubba and Al-Rahim expressed opposition to communal rights, but Rend believed Iraqis would choose to frame rights in terms of the group. Kubba argued, "The reality of Iraqi politics [is that] there are leaders now who have built their interests on these [communal rights] – like they are tribal chiefs in a way, and so long as communal politics continue, those people will [continue] playing power and making money and doing all sorts of things. And this is not in the interest of citizens."
  • Role of Islam in the constitution. The Iraqi analysts agreed that Islam will play a role in the Iraqi state and in the constitution, but that it should not be the sole source of legislation. The panelists stated that contentious debates would not focus on Islam as a state religion but on how one translates Islam into legislation. High on the lists are questions about imposing Sharia law and allowance for community diversity despite the designation of Islam as the state religion.
  • Type of government. Iraqis will need to determine the type of government they want and the extent of federal and provincial powers. Three key issues are: Will the center be weak and the regions strong? Will Iraqis have a parliamentary system, a bicameral legislature or some other form of government, and how will representatives be chosen? Will local governments and autonomous regions be able to maintain their own local constitutions?

Despite these roadblocks, the Iraqi experts who participated in the Center's roundtable remained optimistic that the Iraqi people would succeed in creating a democracy. As Laith Kubba stated, "Despite all these polarized positions, the reality is if you want to look beyond politics what Iraqi citizens – Kurds, Arabs, Sunnis, Shia – need most for themselves and their children, they all agree they need a strong state. They might differ in how to decentralize it and how to restructure it. They all agree it has to be democratic – elected. It mustn't be authoritarian, religious or otherwise . . . . And I think all Iraqis would like to see a level of respect to religion, but not necessarily a religious authority."

For the full transcript of the Center's event, "Countdown to a Constitution: Iraqis Debate Their Country's Future," see: /kf/IRAQI%20CONSTITUTION%20TRANSCRIPTMARCH222005.PDF

Caroline Wadhams is a policy analyst at the Center for American Progress and Max Bergmann is a researcher at the Center for American Progress.

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