Washington Kurdish Institute
By: Vincent Campos October 17, 2022
Synopsis: A Constitutional Congress (or similar vehicle) specifically intended for considering and debating the merits of draft amendments could serve as a viable option for Iraq to emerge from the prolonged political quagmire which has paralyzed meaningful government effectiveness. Of note, civil society must play a direct participatory role to ensure their concerns are adequately recognized. This initiative is not intended to open the entire text of the Iraqi Constitution for review. Rather, a Constitutional Congress should focus on the highest priority issues which can subsequently be offered to the Iraqi Parliament as draft amendments for consideration in accordance with Article 126 of the Iraqi Constitution.
Shortly after lawmakers elected Abdul Latif Rashid as Iraq’s new president, Prime Minister-designate Mohammed Shia al Sudani was named and charged with forming a new government, no easy task in today’s political climate. This significant step forward does little to erase the lasting effects from the political stalemate that Iraqis have endured throughout the 12-months following the October 2021 snap elections. Corruption continues unabated, employment remains elusive for new university graduates, water scarcity has reached critical proportions, security is being tested from within Iraq and from the outside by its neighbors, and Erbil-Baghdad relations are still tenuous at best.
The bedrock of Iraq’s modern democracy, the 2005 Constitution, thankfully remains intact despite countless manipulations by political parties and questionable decisions from the Federal Supreme Court. Unfortunately, key provisions within the constitution still remain unresolved and deadlines have been summarily ignored.
On September 27, The Washington Institute for Near East Policy published a policy analysis “Iraq’s Constitutional Moment” (Safwan Al-Amin and Bilal Wahab) where I contributed specific text suggesting that the time may have arrived for Iraq to consider a Constitutional Congress. This commentary expands on that specific proposal.
Why not a Constitutional Convention?
Over the years, emerging as well as established democracies have convened constitutional conventions with the specific intent to either draft an original constitution or even rewrite an existing constitution. The United States Constitutional Convention of 1787 created the U.S. Constitution of 1789, a document that has withstood the test of time in large part to the ability to make amendments as needed in order to best serve society and to preserve American democracy.
The Iraqi Constitution of 2005 was a formidable achievement that was written during an arguably compressed timeline. Despite considerable daunting challenges, a comprehensive and impressive document emerged which has, for the most part, proven worthy in providing Iraq a foundation that represents all Iraqis while also providing a framework for Iraqi federalism.
However, key articles were never enacted which directly impacted on Iraq’s ability to fully achieve the benefits from federalism, to determine an equitable means to share Iraq’s natural resource revenues, to resolve the matter of Kirkuk’s identity in accordance with Article 140, to bring stability to the disputed areas between federal Iraq and the Kurdistan Region of Iraq (KRI), and to address the ambiguities pertinent to the formation and function of the Federal Supreme Court, to name a few. These and similar high priority issues do not require a redrafting or comprehensive editing of the existing constitution. Rather, addressing such matter should first be considered through the existing amendment process.
So, Why a Constitutional Congress? Answer: Civil Society Participation!
The actions of the October 2019 (Tishrin) protest movement led to the fall of the previous federal government, resulting in new elections. Despite this notable impact, discontent with bureaucratic inefficiencies and political party self-interests remains as strong as ever. Notwithstanding, the Iraqi Constitution has remained a constant fixture of stability despite being subjected to political manipulation, abuse or even neglect.
The Kurds, for their part, have long stated strong support for Iraqi federalism, most often punctuated by the caveat “in accordance with the constitution.” But patience can be stressed to the breaking point, and Iraq has painfully convulsed when constitutional conflicts boiled over. In its current state, the constitution serves a vital and specific purpose. Countless political insiders and members of civil society agree, however, that improvements are long overdue.
As previously noted, the amendment process “in accordance with the constitution” provides a clear path to make needed improvements. Due to impending direct impacts that any amendments will have on civil society, it is imperative that members of civil society be included and have a direct voice. The chambers within the walls of the Council of Representatives are not amenable to such participation despite possible claims to the contrary.
However, a separate process via a well-constructed Constitutional Congress can bring political party representatives, academia, and civil society together in a forum where ideas and opinions can be openly and freely discussed and debated, the results of which can be then be presented to the Council of Representatives for consideration and discussion in accordance with Article 126 of the Iraqi Constitution.
Participation from the International Community
The International Community – UNAMI, United States, EU, et al – should play a key role during this process, possibly as observers and facilitators, as best determined by the organizers. An international presence can provide an added layer of legitimacy, enhance input from recognized constitutional experts, and support the voices of Iraq’s marginalized communities. The “inclusive” nature of the Constitutional Congress format would also encourage flexibility in order to promote a more meaningful and impactful activity.
For the US, that participation must be consistent with the bilateral Strategic Framework Agreement. In partnership with the larger international community, this joint effort should be conducted in a responsible, deliberate, and transparent manner with the specific intent to assist Iraq’s goal for addressing the most pressing political, economic and security challenges.
Next Steps
Iraq’s prolonged government formation stalemate has damaged Iraq’s reputation both domestically and internationally. At the same time, the political paralysis has exacerbated the lack of confidence that too many Iraqis have maintained towards the government officials and political party leaders. At the same time, trust in the government’s ability to deliver essential services remains precariously low. The new Iraqi Prime Minister could send an early message for a more responsive, inclusive and effective administration by launching a Constitutional Congress initiative as one of his first orders of business.
Disclaimer: The views expressed here represent those of the author and not necessarily those of the WKI.