Blog of the International Journal of Constitutional Law

Iraq’s Constitutional Review

For almost two years Iraq’s Constitutional Review Committee (CRC) has been working on a package of constitutional amendments to submit to the Council of Representatives (CoR) and then for popular referendum. This tumultuous process has witnessed highs (the May 23, 2007 interim report that included several substantive amendments that would have fundamentally altered the constitutional treatment of oil and other natural resources and redistributed powers between Baghdad and the regions to create a more functional federal system) and lows (the complete repudiation by the KRG of these same amendments two days later). Since May 2007 the CRC has been largely stuck in neutral, and the interim report all but forgotten in Parliament. This past July, the CRC submitted a non-final final report to the CoR — “final” in that it included the complete report from May 2007 (even the proposed amendments later repudiated by the KRG) and “non-final” in that the report noted five matters (including those objected to by the KRG) that were being referred to senior Iraqi officials for further deliberation and, hopefully, compromise and resolution (which could then be incorporated back into the report).

Last week Speaker of the Iraq Council of Representatives Mashadani added an unexpected plot twist when he announced that immediately after the Eid (due to end on Oct. 5) the Presidency Council of the CoR would put the constitutional amendments on the parliamentary agenda for a vote — regardless of whether the political leadership had reached agreement on the remaining issues. This reckless move, if followed through, will necessarily result in one of following events:

1) The entire amendment package could fail. The Kurds will absolutely vote against it. The question will be whether they can convince their usual parliamentary allies (ISCI and Dawa) to do the same. This would end the special constitutionally-mandated review process and close the window on any short or medium term chance of achieving critical constitutional change.

2) The entire amendment package could pass. This would present two new problems. First, the Constitution requires that a national referendum take place within two months of the CoR passing any amendments. Iraq is already way over its head with pending provincial elections – a national constitutional referendum in the next two months is a technical impossibility. Second, the entire package would be voted down at referendum, as the three Kurdish provinces would all vote against it. (Three provinces voting “no” automatically vetoes the amendments). Again, leading to the result that a unique opportunity to improve upon the Constitution would be lost.

3) Some amendments pass and some fail. (While a reading of the Constitution suggests this should not happen — the CoR should have one yes/no vote on the entire package of amendments — there is some support for this in Parliament). This too would be a lost opportunity since critical provisions that after further negotiation might have passed will be voted down due to the haste with which the vote was called. Further, those amendments that did pass would create the same technical difficulties at referendum as explained above. And finally, even if a referendum were organized, with the key matters left out of the package Iraqis would likely not care enough even to come out to vote for it. (With only intermittent electricity, much of the country without potable water, and the constant fear for one’s life I imagine it would be very difficult to get too excited over a constitutional amendment creating a second chamber of parliament.)

The Seaker’s motivation for calling this vote is not known. The constitutional review has largely been a battle with Arabs (Sunni and Shia) on one side and Kurds on the other. In the wake of the passage of the provincial election law, which saw a significant Kurdish compromise, Mashadani may see this as a good time to continue to put pressure on the KRG. He should be counseled (and cajoled, if necessary) into rethinking. The constitution review is too important to be used as a political tool. Already Shia and Sunni have reached critical and fundamental agreements on some of the most important and contentious matters facing Iraq today. Kurds must be brought on board through negotiation and compromise – not political gamesmenship. Only in this way will the Constitution ever represent a national compact and a workable template for Iraq’s federal system.


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