Global Policy Forum

Problems in Charter's Design Pose Problems for Unity

By Ersin Kalaycioglu*

On October 15, 2005, the Iraqi people voted on the fate of their new constitution. This is not their first written constitution, though it is their first somewhat popularly composed constitution. What was most feared did not materialize, and the Sunni Arabs failed to veto the document. Now that Iraq has a federal democratic system in place, a brief analysis of its main characteristics and their potential opportunities and risks for Iraq is warranted.

Federalism requires devolution of power from the local governments, where the sovereign power of the people is assumed to be located, to the central government, and a rigid division of power that cannot be easily amended. Such a design can only work with a relatively decentralized system of government, with a solid division of power between the central and regional authorities. Students of constitutional politics argue that federalism often incorporates a written constitution and a bicameral legislature where an upper chamber protects the interests of the provinces. Finally, a federal constitutional court, which works to protect federalism against the encroachments of the center, needs to be incorporated into the written constitution.

The Iraqi Constitution possesses some of the most important characteristics of federalism. First of all, it is a written constitution. It hosts a decentralized system, a bicameral legislature, and a Federal Supreme Court. Therefore, on paper it seems to meet all of the criteria of federal democracy. However, a closer examination unearths some problems with its design that may bode ill for the national solidarity and political stability of Iraq.

First, a written constitution should provide for lucid definitions of division of power between the national and local realms of authority and federal and local institutions; it should define citizenship and the like. The Iraqi Constitution mainly avoids defining such issues as the division of power between the center and the periphery, Iraqi identity, the character and structure of state and regime, the distribution of resources, and Iraq's political orientation.

Second, Iraq now has a bicameral legislature. However, its composition, the powers of the deputies and the criteria of representation in the upper chamber are all left untreated in the Iraqi Constitution. Such issues are not only postponed indefinitely, but the lower chamber is entrusted with making the necessary decision (law) about the powers of the upper chamber (art. 63). Therefore, it is plausible to assume that Iraqi federalism will work through a weak bicameral legislature, and in practice will function as a unicameral legislature. Under these circumstances, how the power of the center can be balanced and checked without an upper chamber in the Iraqi legislature that enjoys some form of veto in regional matters remains a mystery.

Third, the Iraqi Constitution establishes a Federal Supreme Court (FSC); article 90 states that the FSC will enjoy administrative and financial autonomy and consist of jurisprudents and experts on Islamic law. It will be up to two thirds of the members of the National Assembly to determine how many secular and how many Islamic judges serve on the bench of the FSC (art. 90.2). Thus a series of issues related to both federalism and secularism will be involved in the functioning of the FSC. It is not difficult to imagine the FSC becoming entangled in the issues of the rights of women and other democratic rights, rather than dealing with the powers of the center versus the periphery in Iraq.

Fourth, the Iraqi Constitution declares oil as the national wealth of Iraq (art.109). Its management is put under the authority of the federal government, which is to govern the oil wealth through an independent commission of the federal state (article 104). However, if any one community such as the Shiites gains the upper hand, such a commission will not be perceived by the others as a fair arbiter. Hence, the distribution of national wealth will become a matter of conflict among the various political forces of the country.

Fifth, the division of power between the central and local governments seems to be less than obvious regarding taxation, energy production and the management of customs duties. Lack of cooperation and coherence in such realms is going to be costly for Iraq.

Iraq has established a territorial federalism, which is likely to reinforce homogeneity within regions and heterogeneity between them. Even formerly nonexistent political entities like Turkmenistan and Uzbekistan - "homelands" to be defended against neighbors during Soviet times - suddenly became sacrosanct new nation states of Central Asia when the Soviet Union collapsed. Similar trends will emerge in Iraq as the territories of the Kurds and the Shiites gain new political meaning. Such a trend will increase heterogeneity throughout Iraq and render the country less integrated over time. Secessionist micro-nationalisms will begin to gain credibility to the detriment of Iraqi national solidarity. The Kurds have already begun to vie for a loose union that comes very close to a confederacy, while the Sunnis demand a closer union under a strong center. It seems highly unlikely that creating a new federal and democratic Iraqi identity will be possible any time soon.

The new Iraqi Constitution seems to be a major step toward federal democracy, but with so many faults and failings much of its success depends upon the performance of the Iraqi political system and institutions, as well as international influences and pure luck.

About the Author: Professor Ersin Kalaycioglu is president of Isik University, Istanbul. This analysis first appeared on bitterlemons-international.org, an online newsletter, and is reprinted by permission.