The Iraqi Constitution: A Referendum for Disaster

by Phyllis Bennis | Institute for Policy Studies | October 16, 2005

The constitutional process culminating in
Saturday's referendum is not a sign of Iraqi
sovereignty and democracy taking hold, but rather a
consolidation of U.S. influence and control.
Whether Iraq's draft constitution is approved or
rejected, the decision is likely to make the
current situation worse.

The ratification process reflects U.S., not Iraqi
urgency, and is resulting in a vote in which most
Iraqis have not even seen the draft, and amendments
are being reopened and negotiated by political
parties and elites in Baghdad as late as four days
before the planned referendum.

The proposed constitution would strip Iraqis of
future control over their nation's oil wealth by
opening all new oil exploration and production to
foreign oil companies.

The imposition of federalism as defined in the
draft constitution undermines Iraqi national
consciousness and sets the stage for a potential
division of Iraq largely along ethnic and religious
lines, with financial, military, and political
power devolving from the central government to the
regional authorities. All groups risk sectoral as
well as national interests.

Human rights, including women's rights,
individual political and civil rights, economic and
social rights, religious rights, minority rights,
all remain at risk.

Instead of balancing the interests of Iraq's
diverse population by referencing its long-
dominant secular approaches, the draft constitution
reflects, privileges and makes permanent the
current occupation-fueled turn towards Islamic


Constitutions can play a crucial role in founding and
unifying new or renewing states; Iraq is no exception,
and in the future drafting a constitution could play a
key part in reunifying and strengthening national
consciousness of the country. But this process has been
imposed from outside, it is not an indigenous Iraqi
process, and the draft constitution being debated is
not a legitimate Iraqi product. Iraqis are still
suffering under conditions of severe deprivation,
violence, lack of basic necessities including clean
water, electricity, jobs - crafting a new constitution
does not appear high on their agenda.

The existing process of ratifying the new constitution
is far more important to the Bush administration than
it is to the majority of people of Iraq. Whether the
proposed constitution is approved or rejected on
Saturday, it is a process and a text largely crafted
and imposed by U.S. occupation authorities and their
Iraqi dependents, and thus lacking in legal or
political legitimacy. The most important reality is
that the draft does not even mention the U.S.
occupation, and neither ratification nor rejection of
it will result in moving towards an end to occupation.
None of the broad human rights asserted in the draft
include any call to abrogate the existing laws first
imposed by Paul Bremer, the U.S. pro-consul, and still
in effect. Whether it is accepted or rejected, it is
likely to worsen the insecurity and violence facing
Iraqis living under the U.S. occupation, and to
increase the likelihood of a serious division of the
country. If it passes, over significant Sunni (and
other) opposition, the constitution will be viewed as
an attack on Sunni and secular interests and will
institutionalize powerful regional economic and
military control at the expense of a weakened central
government. Its extreme federalism could transform the
current violent political conflict into full-blown
civil war between ethnic and religious communities. If
it fails, because Sunnis backed by significant secular
forces, are able to mobilize enough "no" votes, the
result could be a collapse of the current assembly's
already weak legitimacy and capacity, and cancellation
of the planned December elections. In either event, it
is likely that resistance attacks will increase, not
decrease. And certainly the greater violence of the
U.S. military occupation will continue.

From the vantage point of the Bush administration,
a "yes" vote, however slim the margin and however dubious
the legitimacy, validates the claim that the occupation
is setting the stage for "democratization" in Iraq;
this explains the huge investment of money, political
clout, and the personal involvement/interference of
Ambassador Zalmay Khalilzad in the drafting process. If
the White House was looking for a fig leaf to cover
troop withdrawals, this would be it. But there is no
indication there is any such interest in beginning to
bring the troops home, particularly since the
referendum is unlikely to lead to any diminution of
violence. From the vantage point of the peace movement,
the key issue, like that during the elections, remains
that of Iraq's sovereignty and self-determination.
Whatever we may think of this draft constitution, it
has been essentially imposed on the Iraqi people by
U.S. occupation authorities, and as such it is not
legitimate. We may like parts of this draft, we may
disagree with some future Iraqi-led constitutional
process - but our obligation must be to call for Iraqis
to control their own country and their own destiny.
Once the U.S. occupation is over, and Iraqis reclaim
their own nation, we will continue to build the kind of
internationalist ties with women's, labor and other
civil society organizations fighting for human rights
in Iraq, as we have with partners in so many other
countries. But while the U.S. occupation is in control,
our first obligation is to work to end it.


Saturday's referendum marks a key stage in the process
of implementing the U.S.-designed, U.S.-imposed
political process designed to give a "sovereign" gloss
the continuing U.S. occupation. The process was set in
place and pushed to completion by each successive U.S.-
backed occupation authority in Iraq. Initial U.S.
reluctance to hold early elections was overcome by
pressure from Shia leader Ayatollah al-Sistani; while
his support insured widespread Shia backing for the
political process, it also guaranteed even greater
opposition from Sunni and some secular forces.

The Bush administration has invested a huge amount of
political capital in insuring the "success" of the
constitution process, sacrificing for the actual
content of the draft document to insure that something,
almost anything, that could be called a constitution
will be endorsed by a majority of Iraqis. The U.S.
ambassador to Iraq, Zalmay Khalilzad, has played an
active and coercive role in pushing Iraqi political
forces to participate and make concessions, and in the
actual drafting of the document. The U.S. goal is to
justify the claim that Iraq is "moving towards
democracy" and that the post-invasion, occupied reality
of Iraq in 2005 is somehow equivalent to the experience
of the United States at the time of the drafting of the
U.S. constitution. While numerous politicians, pundits
and mainstream journalists routinely refer to the
constitution's approval as the "necessary step towards
ending the U.S. occupation once and for all," it
actually does nothing of the sort. Despite asserting
the rhetorical claim of "sovereignty" and
"independence" for Iraq, the constitution as drafted
makes no mention of the U.S. occupation. Even the
"transition" section, while insuring the continuation
of the "de-Baathification" process, support for former
political prisoners and victims of terrorist attacks,
and other contemporary concerns, there is no mention of
the presence of the 150,000 or so U.S. and coalition
troops occupying the country, and certainly no call for
them to go home. The U.S.-controlled political process
violates the Geneva Convention's prohibitions on an
occupying power imposing political or economic changes
on the occupied country. At the end of the day, the
constitution leaves the U.S. occupation intact and


There has been large-scale opposition to the draft
constitution, particular from key elements of the Sunni
population. In a U.S.-prodded effort to "get the Sunnis
on board," changes were negotiated between one Sunni
party and the constitutional committee. Just three days
before the vote, on October 12, they agreed to two
changes - allowing the constitution to be amended by
the new parliament scheduled to be elected in December,
and limiting the "deBaathification" process to those
former members of the Baath party accused of committing
crimes. The announcement may persuade some additional
Sunnis to vote, rather than boycott, or even to support
rather than reject the constitution. But the Iraq
Islamic Party is only one, and by far not the most
influential, of the many Sunni-dominated political
forces in Iraq, and it is unclear how influential they
are or how significant the changes will be.


If the voting resembles something close to an accurate
referendum ("free" and "fair" are not even
possibilities, given the dominance of U.S. control of
the drafting and conducting a vote under military
occupation) the current draft constitution is likely,
though not certain, to be approved by a small majority
of Iraqi voters. It remains unclear, even with the new
changes, whether the majority of the Sunni population
will participate and likely vote "no" on the draft, or
will boycott the referendum altogether. It also is
uncertain how many secular Iraqis of all religions and
ethnicities may reject the constitution. There are
clear indications that most Iraqis believe the
constitution has been drafted in a process from which
they are largely excluded; international news outlets
report that most had still not seen the text only days
before the referendum.


The major debates between Iraq's ethnic and religious
communities, as well as between secular and Islamic
approaches, sidelined any debate over crucial economic,
especially oil, policy decisions in the constitution.
The draft asserts that "Oil and gas is the property of
all the Iraqi people in all the regions and provinces,"
and that the federal government will administer the oil
and gas from "current fields" with the revenues to be
"distributed fairly in a matter compatible with the
demographic distribution all over the country." But
that guarantee refers only to oil fields already in
use, leaving future exploitation of almost 2/3 of
Iraq's known reserves (17 of 80 known fields, 40
billion of its 115 billion barrels of known reserves),
for foreign companies - because the next section of the
constitution demands "the most modern techniques of
market principles and encouraging investment." Further,
Article 11 states explicitly that "All that is not
written in the exclusive powers of the federal
authorities is in the authority of the regions." That
means that future exploration and exploitation of
Iraq's oil wealth will remain under the control of the
regional authorities where the oil lies - the Kurdish-
controlled North and the Shia-dominated South, insuring
a future of impoverishment for the Sunni, secular and
inter-mixed populations of Baghdad and Iraq's center,
and sets the stage for a future of ethnic and religious

While the specifics of oil privatization are not
written into the text of the draft constitution, they
are consistent with the proposed Iraqi laws announced
in August 2004 by the U.S.-appointed interim Prime
Minister Iyad Allawi. He called for private companies,
including foreign oil corporations, to have exclusive
rights to develop new oil fields, rather than the Iraqi
National Oil Company, as well as at least partial
privatization of the INOC itself, thus essentially
selling off Iraq's national treasure to the highest
foreign corporate bidder.


The division of Iraq into three major ethnically- or
religiously-defined regions or cantons remains a long-
standing fear of many Iraqis and many people and
governments across the region and around the world, and
the most important basis for opposition to the draft
constitution. In historically secular Iraq, the shift
in primary identity from "Iraqi" to "Sunni" or "Shia"
(although Iraqi Kurdish identity was always stronger)
happened largely in response to the U.S. invasion and
occupation; it does not reflect historical cultural
realities. The draft constitution promotes not just
federalism as a national governing structure, but an
extreme version of federalism in which all power not
specifically assigned to the central government
devolves automatically to the regional authorities -
setting the stage for a potential division of Iraq
largely along ethnic and religious lines. The draft
anticipates a weak national government, with financial,
military, and political power all concentrated within
regional authorities. The proposed constitution states
directly that all powers - military, economic,
political or anything else - "except in what is listed
as exclusive powers of the federal authorities" are
automatically reserved for the regional or provincial
governments. In all those areas of regional power, the
provincial governments are authorized to "amend the
implementation of the federal law in the region"
meaning they can ignore or override any constitutional
guarantee other than foreign affairs or defense of the

Besides the economic/oil conflict, this means that
regional (read: religious and/or ethnic) militias
accountable to political parties and/or religious
leaders will be given the imprimatur of national
forces. The process has already undermined Iraqi
national consciousness, and sets in place risks for
both national and, ironically, sectoral interests
affecting each of the groups - even the most powerful.

Shia -

Iraq's Shia majority (about 60%) are the dominant
force in the existing government and security
agencies, and in alliance with the Kurds, dominate
the constitutional drafting process. The
constitution is widely understood to favor their
interests, and by instituting a semblance of
majority rule and according to some sources by
privileging religious power within the government
and court systems, it does so. But despite recent
turns towards religion, many Shia remain very
secular, and not all Shia want to institutionalize
religious control in either regional or national
governments. The federalism provisions, including
the potential to establish a Shia-dominated "super-
region" in the nine oil-rich provinces of the
south, is also a favorite among many Shia. However,
the extreme federalism has the parallel effect of
largely constraining Shia control to the southern
areas (however oil-rich) where they form the
largest majority population, thus limiting Shia
influence in the country overall. Many Shia live in
Baghdad (actually the largest Shia city in Iraq)
and other mixed areas outside the southern Shia-
majority region. The revered Shia leader, Ayatollah
Ali al-Sistani, has spoken strongly against
dividing Iraq, but the constitution sets the
groundwork for exactly that.

Sunni -

Iraq's Sunni population is dominant in small areas
in central Iraq including Baghdad and its environs.
With the constitution's strong focus on building
regional economic, political and military power,
the Sunnis as a community stand to lose the most.
With major economic power - read: control of oil
income - resting with the regional governments, the
Sunnis will suffer because the area they dominate
in central Iraq is devoid of oil resources. (See
"Control of Iraqi Oil" above.) Following the large-
scale Sunni boycott of the June 2005 election, they
are underrepresented in the national assembly, and
have faced the largest proportion of exclusion from
jobs, the military, and the government under the
"deBaathification" process. Last-minute changes to
the draft constitution, including limits on
deBaathification may pacify some Sunni anger, but
is unlikely to result in full-scale proportional
involvement and empowerment in the post-referendum
political processes.


Iraq's Kurdish population, about 20%, is largely
(though not entirely) concentrated in the northern
provinces. They have the longest history of a
separate ethnic/religious identity of any of Iraq's
major groups, and their search for independence or
autonomy has long roots, strengthened by years of
oppression by various central governments in
Baghdad. Iraq's Kurdish leaders are the closest
allies of the U.S. in Iraq, having provided support
to the invasion and occupation even before the U.S.
military attacks began. Because of U.S. protection
during the 12 post-Desert Storm sanctions years,
the Kurdish region also had access to more money
(through an intentional distortion of the oil-for-
food distribution of Iraq's oil funds),
international ties through open borders to Turkey
and beyond, and the development of U.S.- and other
western-backed civil society institutions than any
other sector of Iraq. They are by far the best
prepared and the most eager for control of regional
oil income (their zone includes rich northern oil
fields, especially if they end up incorporating the
once-Kurdish but now overwhelmingly mixed area
around Kirkuk) and a weakened central government.
Their regional militia, the pesh merga, are also by
far the most powerful of any Iraqi military force.
Some Kurdish forces, however, are already critical
of the draft constitution because their oil-rich
three-province region would be dwarfed by the even
more oil-rich Shia-dominated nine-province region
in the south.

Secular forces -

Along with Palestine, Iraq was historically the
most secular of all Arab countries. The draft
constitution, while vague in many details,
certainly lays the groundwork for a far greater
role for religious authorities in governmental and
judicial institutions. Many secular Iraqis, as well
as Christians, are dismayed by the privileging of
Muslim clerics within the constitutional court, for
example, as well as the regional empowerment that
allows local/regional governments to choose sharia,
or Islamic law, as the basis for some or all of its
court jurisdiction rather than secular laws.


Officially the draft constitution includes far-reaching
protections of human rights, including a wide range of
political and civil rights, and explicitly women's
rights, saying that says Iraq will "respect the rule of
law, reject the policy of aggression, pay attention to
women and their rights, the elderly and their cares,
the children and their affairs, spread the culture of
diversity and defuse terrorism." Economic, social and
cultural rights are explicitly protected in language
far stronger than that of the U.S. constitution and
Bill of Rights, or that of most other countries. But
there is contradictory language as well. The draft
states that "(a) No law can be passed that contradicts
the undisputed rules of Islam. (b) No law can be passed
that contradicts the principles of democracy. (c) No
law can be passed that contradicts the rights and basic
freedoms outlined in this constitution."

Whether basic freedoms will trump Islam or vice versa,
and crucially, who will decide, seems a dangerous risk.
Ultimately, instead of balancing the interests of
Iraq's diverse Muslim majority with its once-dominant
secular, the draft constitution reflects, privileges
and makes permanent Iraq's current occupation-fueled
turn towards Islamic identity.
Posted by: LDavidson on Oct 19, 05 | 12:19 am