constitutionalism" and the symbolic significance of popular constitution-making in the
democratization of countries as diverse as Poland, Hungary, and South Africa. It also arose
in part from more recent postconflict experiences in Afghanistan and East Timor, where
international programs supporting peacekeeping and governance culminated, almost
triumphantly, in the entry into force of newly drafted constitutions. These comparative
constitutional experiences are now well documented, and contain lessons for Iraq that
USIP, among others, has identified. (See “Iraq's Constitutional Process: Shaping a Vision
for the Country's Future," USIP Special Report 132, February 2005.)
Moreover, the overwhelming U.S. political and cultural influence in post-2003 Iraq
brought to bear the specific U.S. vision of a constitution as the centerpiece of stability
and democratic independence of post-Saddam Iraq. Constitutionalism is at the heart of
the U.S. vision of its own democratic identity; thus, it may not be surprising that this
vision was rhetorically projected onto the massive democratization project in Iraq. In
a dynamic familiar to observers of transitional governments, over time the idea of a
permanent constitution for Iraq became more and more closely linked, in the U.S. imagi-
nation, with nation-building success and a plausible exit strategy.
Finally, and more pragmatically, many Iraqis—particularly, but not exclusively, Iraqi
Kurds-perceived that in a multisectarian, regionalized country, a permanent constitution
would be desirable, if not necessary, as a kind of an intercommunal peace treaty. This
constitution-as-treaty would not be a principled discussion leading to the consolidation
of Iraqi political identity, it would, more modestly, represent a modus vivendi to settle
competing interests surrounding religious law, local self-governance, and resource man-
agement. As far as this last source of "constitutionalism" was concerned, the relevant
analogies were less to the United States or even Afghanistan and East Timor, and more
to Bosnia-Herzegovina, Sri Lanka, and Sudan.
Expectations of Citizen Involvement
Each of these intellectual origins for Iraqi constitutionalism-nationalist, “new consti-
tutionalist," and pragmatist—were to some extent popular. That is, each derived from a
demand from nonelite Iraqis for a new social contract. Each presupposed that the Iraqi
citizenry would have some opportunity to directly influence the constitution-making pro-
cess. As one young Baghdadi man put it in late 2004, “When we hear talk of a permanent
constitution, our eyes light up." Early ambitions of the Coalition Provisional Authority
for a constitution to be drafted by U.S. appointees quickly gave way to pressure from
Shia religious leader Grand Ayatollah Sistani for a constitution to be drafted by elected
representatives. Even the minimalist, pragmatist approach was premised, for instance, on
the importance of Kurdish popular opinion and a Kurdish popular desire for a large degree
of autonomy, if not independence, from Baghdad.
This demand for citizen involvement in constitutionmaking was increased by the wide-
spread criticism of the process by which the TAL had been drafted in early 2003 during the
period in which the Coalition Provisional Authority exercised the rights of an occupying
power. The TAL process, though it involved some senior Iraqi political figures, was notori-
ously, if unintentionally, hasty and secretive, and was heavily influenced by U.S. Political
interests. The buildup of popular constitutionalism in Iraq during the occupation added
considerable significance to the task of the future elected National Assembly in writing
the constitution by an initial deadline of August 15, 2005, or, if the National Assembly
considered that an extension using Article 61(F) was needed, by February 15, 2006. The
National Democratic Institute (NDI) found that by April 2005 “almost every participant"
in national focus group research "is of the opinion that the Iraqi citizens should be
involved in the preparation of the constitution."
If transitional Iraq was always in need of a credible constitutional process, by late
2004 this need was made acute by Iraqi electoral politics and the dynamics of a pre-
dominantly Sunni Arab insurgency. In December 2004, it became clear that the January
If transitional Iraq was always in
need of a credible constitutional
process, by late 2004 this need
was made acute by Iraqi electoral
politics and the dynamics of a pre-
dominantly Sunni Arab insurgency.


prudence”-generally understood as Islamic clerics—on the constitutional court. Perhaps
less obvious is the large scope the constitution gives regional legislatures to prevail over
federal law in those areas in which Islamic jurisprudence conventionally holds sway,
including family law and criminal law. A referendum by the end of 2007 will resolve the
outstanding status of multiethnic Kirkuk.
The Sunni Arabs objected to
the regional federalist model
for Iraq and, in particular, the
prospect of a southern, predom-
inantly Shia, federal region.
Substantive Opposition to the Draft Constitution
The draft constitution attracted criticism from a range of Iraqi groups and parties, and in
particular Sunni Arab groups. After the National Assembly adopted the draft constitution
on August 28, influential secular and religious Sunni Arab political groups, including the
Iraq Islamic Party, the National Dialogue Council, and the Muslim Scholars Association,
publicly indicated that they would oppose the draft at the national referendum.
The stated reasons for opposition were not uniform. For instance, secular and religious
Sunni Arab groups were divided on the statement in the draft that Islam“ is a fundamental
source of legislation." Secularists thought this was too much religion; clerics thought it
was not enough. There were common themes, however. Typically, the Sunni Arabs objected
to the regional federalist model for Iraq and, in particular, the prospect of a southern, pre-
dominantly Shia, federal region. In many cases, there was a specific rejection of regional
control of petroleum production, a demand for a stronger statement of an Arab identity
for Iraq, and an objection to provisions in the draft condemning Ba'athism. Later efforts
to bring the August 28 text closer to the Sunni Arab position eventually led, to a state-
ment of support by the more moderate Iraq Islamic Party for the constitutional text. The
majority of Sunni Arab representative groups, however, maintained these objections up to
the date of the referendum.
Significantly, opposition to the text was not confined to Sunni Arab groups. Former
Prime Minister Ayad Allawi had also publicly opposed the model of regional federalism
in the constitutional draft. The influential Shia clerics Moqtada al-Sadr and Ayatollah
Mohammed al-Yaqoubi indicated their opposition to the draft at the referendum, for rea-
sons that likely stem from hostility toward the Iranian ties of the Supreme Council for the
Islamic Revolution in Iraq (SCIRI). SCIRI is the powerful Shia party and major proponent
of constitutional provisions that facilitate a southern federal region, which they wish to
be composed of as many as nine existing governorates. Some women's groups and certain
ethnic minorities also opposed the draft on grounds that the text insufficiently promoted
and protected their interests.
The Problem: Time Pressures
These substantive Sunni Arab criticisms of the draft were also accompanied by procedural
complaints. Sunni Arab representatives said that they were not sufficiently included in the
constitutional negotiations.
The creation of the Committee was promising in some respects. In particular, Sunni
Arab negotiators nominated fifteen new representatives to join the National Assembly's
fifty-five-member Constitution Drafting Committee (the Committee) in late June 2005,
and the following weeks saw the participation by those representatives in the Committee's
activities. (The enlarged body was notionally renamed a "Commission" (hay'a 'ameh) but
was continually referred to as the “Committee” (lajneh), and this report follows the com-
mon practice.)
The Assembly had elected a SCIRI member, Sheikh Humam Hamoudi, to chair the Com-
mittee. He was not appointed until May 23, after negotiations over the formation of an
Iraqi Cabinet extended to April 28, and the negotiations over Committee membership con-
tinued until May 11. Once appointed, Sheikh Hamoudi heard evidence from international
experts from constitutional commissions in South Africa, Albania, Kenya, Afghanistan,
East Timor, and elsewhere. He agreed to bring Sunni Arab members into the Committee
structure and to take decisions by consensus. This principle of consensus was adopted to


provide some assurance that Sunni Arab Committee members would not be sidelined in a
Committee on which, because they were not elected to the Assembly, they had no vote.
In finalizing the Committee composition in this way, the Assembly implicitly rejected
earlier proposals in February suggesting that the constitution be drafted by a commis-
sion that would be independent of the government and the Assembly. The Assembly also
rejected the possibility that the drafting body contain, as members, Iraqi civil society
representatives or constitutional experts. As a result, additional, unelected Committee
members were limited to the Sunni Arab political leadership.
The extent to which the Committee was able to operate as a forum for the expression
of Sunni Arab constitutional positions, however, was marginal at best. First, the period
during which Sunni Arabs were able to take part in the Committee activities was very
short. It was late June before the fifteen Sunni Arab members of the Committee had
been invited onto the Committee, and it was later still, July 8, before they attended their
first meeting. Matters were tragically complicated on July 19 when a Sunni Arab Com-
mittee member, Sheikh Mijbil Issa, was assassinated in the Baghdad suburb of Karrada
-presumably by Sunni Arab insurgents. As a result, some Sunni Arabs on the Committee
suspended their membership until the government could assure them a higher level of
security protection.
The Committee leadership, having made repeated public commitments that they would
meet the default TAL constitutional deadline of August 15, remained under intense time
pressure to produce a draft. Public and private statements of senior U.S. officials, includ-
ing the Secretary of State, the Secretary of Defense, and the President himself, dramati-
cally increased this pressure. These officials made it clear that any move to extend the
constitutional deadline beyond August 15 would earn the displeasure of the U.S. and U.K.
governments. The standard U.S. pronouncement was: “The (United States) supports the
Iraqi people in their desire to complete a constitution by August 15," in circumstances in
which an expression of that desire was far from universal within Iraq, and did not precede
the statement by the United States of its position.
Scrapping the Committee on
August 8 meant that in effect the
Sunni Arab Committee members,
after no more than one month
of trying to develop and assert a
coherent constitutional position,
were retired en masse.
Defunct Constitution Drafting Committee
As it turned out, however, the Committee was effectively scrapped, or rendered defunct,
by the meeting of political party leaders that began in the Baghdad International Zone
on August 8. Scrapping the Committee on August 8 meant that in effect the Sunni Arab
Committee members, after no more than one month of trying to develop and assert a
coherent constitutional position, were retired en masse.
After August 8, constitutional negotiations took place in a series of private, ad hoc
meetings between Kurdish and Shia party leaders—the “Leadership Council," as it was
termed by the international press, or more informally by Committee members, "the kitch-
en” (matbagh). In its basic form, the Leadership Council consisted of SCIRI leader Abdul
Aziz al-Hakim, Shia Dawa party leader Prime Minister Jaafari, Kurdish PUK party leader
President Jalal Talabani, and Kurdish KDP party leader Masoud Barzani. These meetings
took place at irregular intervals at a number of private residences and compounds in the
International Zone. These were meetings at which the Sunni Committee members had no
right of attendance, to which they frequently requested attendance, but were not often
invited. The expectation was quite clear: the Shia and Kurdish parties would agree to a
constitutional text, which would then be presented as a fait accompli to the Sunni Arabs,
who would be asked to take it or leave it.
informally no "Leadershins of private
The question arises, then, as to
whether before the Leadership
Council began meeting on August
8, a more extended time period for
constitutional deliberations within
the Committee would have produced
a better result, and specifically
would have created the conditions
for Sunni Arab acceptance of a con-
stitutional draft
Timeline: A Better Process?
The question arises, then, as to whether before the Leadership Council began meeting
on August 8, a more extended time period for constitutional deliberations within the


The life of the Committee was characterized by frequent resignations and walkouts by
Sunni Arab, Kurdish, and other representatives. Also, no protocol provided for Committee
interaction with the Iraqi public. Occasional press conferences were held in the heavily
guarded Convention Center to update the media on the Committee's drafting work, but
these did not involve serious dialogue on constitutional issues.
Sunni Arab Committee membership was continually criticized for being drawn largely
from the Baghdad political elite and insufficiently representing its constituency. Some
also felt that Sunni Arab civil society leaders, including tribal leaders, had been largely
overlooked to the peril of the final constitution. For example, in early June, Shia and
Kurdish Committee members rejected a proposal to identify Sunni Arab constitutional
drafters through a multiweek, regional caucus process. The Iraq Institute of Peace, a
nongovernmental interfaith dialogue organization with strong Sunni Arab tribal connec-
tions, had tested the idea, but the Shia and Kurdish members thought the process would
be too time-consuming.
Even with all the time in the
world, the gap between the
Sunni Arab and Shia constitu-
tional positions on federalism
may not have been reconcilable.
Insurmountable Differences?
Even with all the time in the world, the gap between the Sunni Arab and Shia constitu-
tional positions on federalism may not have been reconcilable. There was arguably little
chance for the Sunni Arabs to reach an accommodation with SCIRI, which over the course
of July started pressing for a constitutional right to create a new southern federal unit
to mirror that of the Kurdistan Region. The model of federalism the Kurdish and Shia
"kitchen” finally offered to Sunni Arab negotiators would not only consolidate a large
degree of autonomy to the Kurdistan Region, but would also allow for other future federal
regions, including a southern, predominantly Shia, federal unit.
In rejecting this model, the Sunni Arabs took a stance that bluntly and fundamentally
contradicted the bilateral Kurd-Shia agreement on the terms of federalism, in circum-
stances where that agreement was apparently not open to modification. The terms of
that Kurd-Shia agreement give to one or more of Iraq's eighteen governorates the right
to “organize into a region" following a referendum in the respective governorate(s). The
central Sunni Arab objections as stated lay with the prospect that a southern federal unit
would radically challenge a Sunni Arab conception of the integrity of the Iraqi nation, and
that would (or so it is imagined) isolate Sunni Arab nationalists between two sectarian
and strong and oil-rich provincial powers of Iraqi Kurdistan and a new Iraqi “Shiastan."
As constitutional rhetoric amplified toward the end of August, adherents of the Kurd-
istan and Shia parties made private allegations that the Sunni Arab negotiators had no
intention of finding common ground. They stated a belief that the Sunni Arab negotiators
had as primary objective a failure by the Assembly to meet the August 15 deadline. Under
the relevant TAL provisions, a failure to meet or extend—the August 15 deadline would
automatically precipitate the dissolution of the Assembly and mandate new constituent
elections for a new Assembly, to which more Sunni Arabs would be presumably be elected.
In their darker moments, Kurdish and Shia negotiators ascribed this “nuclear option" to
the ambition of the Sunni Arabs.
Reasons for Extension
Several indicators suggest, however, that Sunni Arab positions had not hardened against
federalism, and were not as intractable as some have suggested. For several reasons, an
extended constitutional process would have produced better results.
Several indicators suggest, how-
ever, that Sunni Arab positions
had not hardened against fed-
eralism, and were not as intrac-
table as some have suggested.
A Moderating Sunni Arab Position on Federalism
First, it is a fact that influential sections of the Sunni Arab community in June and July,
in evolving discussions on the terms of Iraqi federalism, were beginning to produce more
11


that the deadline would not be met. In any event, criticisms from the Sunni Arab com-
munity and elsewhere stating that the Assembly acted contrary to the interim constitution
continued, and added some force to claims that the current Assembly, and the document it
later produced, lack legitimacy. It is likely, of course, that had the United States allowed
the Assembly to adopt a more realistic deadline-a deadline which the Assembly could
reasonably meet—the Assembly would not be exposed to these claims.
The breakdown of the process
also worked against the inter-
ests of women, Iraqi ethnic and
religious minorities other than
Sunni Kurds, as well as liberal
and centrist political interests.
Exclusion of Civil Society: Women, Minorities, and the Center
The breakdown of the process also worked against the interests of women, Iraqi ethnic
and religious minorities other than Sunni Kurds, and liberal and centrist political interests.
From the time of the occupation, the continued rise of sectarian and ethnic political par-
ties fragmented and marginalized these groups. It is doubtful whether any constitutional
process would have delivered them the constitutional recognition they sought, including
strong statements of equality and human rights protections that were contested by the
Shia Muslim religious conservatives, now clearly in the ascendancy. Smaller segments in
Iraqi society had not had the chance to group together under strong civil society institu-
tions.
Forgone Civil Society Influence
For that reason, some of the most promising initiatives in the post-election period
came from civil society leaders who wanted to form umbrella organizations to represent
civil society in constitutional discussions. From a centrist, more secular perspective, Dr.
Ghassan Al-Atiyyah of the Iraq Foundation for Development and Democracy developed a
proposal for an Independent Constitution Commission (ICC). The stated purpose of the ICC
would be to work alongside the “official” Constitution Drafting Committee, and to “bom-
bard" it with civil society constitutional views—under the oversight of a board composed
of senior political party members. The ICC membership would consist of a large number of
Iraqi nongovernmental organizations (NGOs) that were active in canvassing popular views
on the constitution through 2005.
Similarly, the Thaqalayn Research Institute, an independent Shia religious NGO, started
up a “Civil Constitutional Forum" of NGOs working on the constitution under the leader-
ship of Dr. Sallama al-Khafaji and Sheikh Fateh al-Ghitta. The Forum was designed to edu-
cate religious Shia communities on the value of constitutionalism, the separation between
church and state, and to bring consolidated civil society views to the Committee. Both the
Iraq Foundation for Development and Democracy and the Thaqalayn Research Institute
were, in the end, able to play a role in bringing civil society views to the Committee.
Neither organization, however, was able to realize its goal of creating the institutions
necessary to strengthen civil society's influence on the draft. Both Ghassan Al-Atiyyah and
Sheikh Fateh al-Ghitta pointed to the lack of time as the primary reason for failure.
Women's Groups Ignored
The truncated time frame problem also affected women's groups. At meetings of women's
groups in late July, many participants identified an unmet need for a greater level of
coordination if they were to successfully represent women's views to the Committee, for
instance proposing the creation of an Iraqi women's "Coordination Committee” to manage
this relationship. Again, it was clear that lack of time was the major constraint. Hanaa
Edwar, leader of one very active women's group, the Iraqi Women's Network, recounts
her meeting with the Committee in late July: "We've expressed our worry about the very
short time behind the drafting committee to accomplish its work in a close doors. We're
still demanding for prolonging the deadline of writing the constitution in order to get
the chance for Iraqi people to be involved actively in this very serious process. This will
16


enhance peaceful dialogue and bridge trust on national reconciliation among all Iraqi
society constituencies." Women's groups were particularly concerned about provisions in
the draft that would apparently erode the secular basis for Iraqi family law.
Committee Participation
The Committee itself represented a way of partially correcting the lack of minority and
women's participation. Some care had been taken by the Kurdish and Shia blocs to ensure
that women were represented on the Committee—with a total of nine-as well as repre-
sentatives of the Assyrian, Shabak, and Yazidi communities. One of the Committee mem-
bers, Hunain Al-Qaddo, was also serving as Chairman of the Council of Iraqi Minorities, a
body formally established on July 2, 2005, by eight ethnic minority groups to advocate
for their concerns in the constitutional discussions. One of the deputy chairmen of the
Committee, Adnan Al-Janabi, was a representative of the centrist party of Ayad Allawi.
The demise of the Committee on August 8 dramatically reduced the ability of these
groups to participate in negotiations. The ad hoc Leadership Council meetings included
no women and no non-Kurdish minorities. Centrist party representatives, when they
attended, played a minor role, having moved closer to Sunni Arab skepticism. As a result,
the constitutional provisions that these groups were seeking in the text were frequently
removed from the Committee text, diluted, or modified in ways that bore little relation-
ship to the views of the groups concerned. For example, the Council of Iraqi Minorities
had been seeking a provision that would recognize several of Iraq's many ethnic and
religious minorities by name. Such a provision was included in Article 3 of the Committee
draft: “The Iraqi people is comprised of two major nationalities, Arabs and Kurds, and from
basic nationalities: the Turkmen, the Chaldeans, the Assyrians, the Syriacs, the Armenians,
the Shabak, the Yazidis, and the Mandean Sabeans, all of whom are equal in rights and
citizenship obligations." This provision was removed from the draft after August 8 with-
out consultation with the Council of Minorities or individual minority groups, and was
replaced by different minorities language that does not, for instance, explicitly recognize
the Shabak or Armenians.
The demise of the Committee on
August 8 dramatically reduced
the ability of these groups to
participate in negotiations.
Civil Society Need for International Support
The removal of the drafting responsibility from the Committee resulted in smaller groups,
including Iraq's ethnic and religious minorities, turning immediately to international
institutions for lobbying support and patronage, where previously they had been able to
access Iraqi members of the Constitution Drafting Committee directly. Hoping to influ-
ence the draft after August 8, these groups had an incentive to seek the backing of
the U.S. Embassy, and to a lesser extent the United Nations, since there were no longer
accessible or sympathetic Iraqis close to the drafting action. The United States and the
United Nations clearly welcomed this role. For instance, the UN Special Representative,
Ambassador Ashraf Ghazi, defined his own role as that of the protector of human rights
and minority rights in the constitution. The press releases he issued in August reveal a
series of meetings with Iraqi supplicants looking for UN help when apparently none was
available elsewhere.
It is far from clear that the adopted roles of the United States and UNAMI as human
rights lobbyists were successful. There is no doubt that some of these Iraqi actors found
the meetings with the U.S. Embassy and United Nations to be useful, if only so that they
could determine the status of the latest drafts of the constitution. By August, it became
very difficult even for participants in the negotiations to follow the drafting work, with at
times two or even three different drafts being circulated by different negotiators as the
"latest draft.” Competing "authoritative" texts were variously held by Dr. Hajim Al-Hassani,
the Speaker of the Assembly, Sheikh Humam Hamoudi, the U.S. Embassy, and the United
Nations. Although on two occasions these drafts were leaked to the Iraqi press, none of
Iraq's ethnic and religious
minorities, turning immediately
to international institutions for
lobbying support and patronage,
where previously they had been
able to access Iraqi members of
the Constitution Drafting Com-
mittee directly.
17