Ratification of the Iraq draft constitution was a one-two punch against the insurgency. The contest is far from over. But the Bush administration achieved a critical turning point both for the Iraqis and for its own method of waging the campaign.
In its haste to get an Iraqi constitution on schedule to meet American domestic political pressures, the administration had gotten the Iraqis as well as the president’s grand strategy of spreading democracy into a truly desperate situation.
Whether defeated or ratified, a constitution that fails to unify the country could lead Shiites, Sunnis and Kurds to tempt outside intervention or support terrorists. But the Bush administration and its ambassador, Zalmay Khalilzad, made an adroit tactical turnaround by brokering a last-minute change in the draft just days before the referendum, an amendment opening the constitution to amendments after Iraqis elect a new parliament in December. By turning one Sunni political party from opposition to support, this move, like the boxer’s setup punch, might have tipped the balance between victory and defeat in the referendum.
American proponents of “lower expectations” would like to declare victory and leave. Many American politicians have been saying liberal democracy is out of reach; it’s better just to settle for “stability” by acquiescing to theocracy and a loose confederation. They add that the United States no longer can influence events. Meanwhile, Al Jazeera editorialists say the administration prefers a failed confederation, with weaker partners to bargain for oil deals and an excuse for perpetual occupation.
The irony is that the constitution that would most diminish the insurgency–because Sunnis would most support it–is the one that would be a credible step toward real liberal democracy by establishing a stronger federal government.
The factional splits in Iraq that make getting agreement on a constitution so difficult constitute the ideal environment for Iraqis themselves to create liberal democracy and promote more tolerance within Islam.
Mission of democracy
Article 2 of the draft Iraqi constitution provides that no law can be passed that “contradicts the established provisions of Islam,” the “principles of democracy” or the “rights and basic freedoms” outlined in the constitution. In setting forth a national mission to combine these potentially discordant principles, the draft sets out the mission of bringing liberal democracy to the Middle East.
The draft falters by making the proposed Supreme Federal Court the only national institution to carry on this synthesizing process. The court could become active in spreading rights throughout Iraq. Or it could require laws to follow Shariah.
We see how contentious judicial nominations are in the U.S. In Iraq, a theocratic swing vote justice could impose theocracy everywhere, if the constitution is to be believed. A Dred Scott or Roe vs. Wade type of decision could precipitate civil war.
Democratic principles make effective the power of the people to write laws through their elected representatives. While fundamentalists say a legislative power is unnecessary because God wrote the law once and for all in sacred text to be taken literally, democratic principles hold that people can take the initiative to legislate and debate even how transcendental religious principles should be understood. We must ask what political process the constitution will set in motion.
There is little federal legislative power in areas where rights issues are likely to arise. Even though Article 36 says “the state guarantees” free expression, there is no power to protect such rights. Article 29 provides that “violence and abuse” in the family shall be forbidden and Article 39 makes religious law optional for matters of personal status, but regional law trumps federal law in these areas.
The equal protection of the laws article could not prevent informal intimidation of women. Women’s groups, if they got a victory in the Supreme Federal Court, would likely see it unenforceable against the militias of the regions. To get a real victory, they would have to emphasize electoral campaigning for a federal law to punish and deter violence against women. But a federal civil rights act would be unconstitutional.
The regions will perform an important role in checking ambitions of Sunnis to re-establish a Saddam Hussein-type national dictatorship. But the danger now is a Shiite regional theocracy allied with the mullahs of Iran, and a Sunni regional Taliban-style tyranny around Baghdad allied with Al Qaeda and Syria. An Iraq Shiite region adopting the theocratic model that has made a shambles of the Iranian economy would be discouraging to the people of Iran who want to throw the mullahs out of power. The “end” of the insurgency might not mean that trouble is over. With Sunni regional autonomy, the Baathist and Al Qaeda alliance could gain “legitimate” regional power.
As for oil, the strategic issue is what the revenue would be spent on. We know much of Saudi oil revenue has been devoted to funding madrassas worldwide. Revenue going to a Shiite region would likely end up funding theocratic projects. Revenue going to Iraq as a whole would more likely finance investment to build a more diversified economy, the very thing the Middle East needs.
A simple but fundamental constitutional bargain could remedy these fatal flaws. Expand federal legislative powers. But balance that power by creating an upper legislative house that would require more electoral support to pass a law. Setting up a truly bicameral legislature could attenuate much of the energy behind the desire for autonomy. A bicameral legislature, because it prevents a majority from riding roughshod over minorities, is especially suitable for the Iraq situation where Shiites are about 60 percent of the citizens. In America, a Senate in which each state had two senators was at the heart of the compromise between large and small states that made the U.S. Constitution possible.
Bringing in Sunnis
Iraqi leaders should start public deliberation on amendments needed to bring in Sunnis who are prepared to be reasonable. Proposals for amendments should drive electoral campaigns for the new legislature. The assembly could hold candidate debates and town hall meetings to involve citizens in democratic deliberation of the constitutional alternatives.
Shiites and Kurds must be willing to place more of their hopes in a united Iraq than in regional autonomy. American diplomacy can continue to press the factions to think of the national compact that could end Sunni support for the insurgency. Kurd autonomy has been possible only because the U.S. and Britain previously kept Saddam at bay with a no-fly zone. Now, American forces should not be in the position of fighting on the Kurd-Shiite side in a civil war.
