Last week I participated in a fascinating conference hosted by the National Constitution Center and University of Pennsylvania Law School that waded neck deep into Iraqi constitutionalism, and federalism in particular. I argued that among the problems with the federal framework established by the Iraq Constitution is that it is both ambiguous and internally inconsistent to the point where there are now at least three widely held competing views of the powers and authority of Iraq’s fifteen provinces (all of Iraq except the Kurdistan region).
Another participant argued the contrary – that the ambiguities in Iraq’s Constitution have been beneficial in that they’ve allowed for flexibility as Iraqi notions of federalism have evolved. The implication being that an unambiguous text that concretely froze Iraq’s federal design based on the views around the constitution negotiating table in 2005 would be detrimentally restrictive and contrary to the vision shared by many (if not most) Iraqis today. (It merits reminding that not only have Iraqi Shia views changed substantially since 2005 – from favoring decentralized regions to a more centralized nationalistic vision of Iraq – the Sunnis were not even present during the key negotiations and drafting.)
If we are able to put aside our distaste of the idea of a Constitution being so overly ambiguous and self-contradictory (it’s difficult to have rule of law without clear laws) then, particularly for Iraq, the ambiguities may indeed prove useful. Iraq’s constitutional “moment” was almost just that… a moment. The Constitution was negotiated and drafted in about six weeks, under occupation, and in a hostile and unstable environment. As previously mentioned, a key constituency (Sunni Arabs) was not even present. There is no way Iraq’s components could have fully discussed and reached consensus on such existential matters as the division of powers between levels of government, the distribution of oil revenue, or even the very map of Iraq – each of these issues is ambiguously or incompletely resolved in the Constitution.
Perhaps the ambiguities might better be thought of as placeholders until such time as Arabs and Kurds, Sunni and Shia, can reach consensus on these issues. Iraqi federalism can continue to evolve until a final interpretation (through adjudication or amendment) is reached. The pragmatist in me sees the wisdom in this. The rule of law practitioner in me still bristles.