Writing a constitution is apparently harder than it looks. Two days ago, in the spirit of those old “draw the lumberjack” correspondence-course advertisements, I invited readers of this column to roll up their sleeves and try their hand at writing the Iraqi Constitution. This project had been giving the Iraqis some trouble, and I figured the process could stand a dose of good-old American know-how. Past experience had taught me that Chatterbox readers tended to be mentally agile and well-versed in the subtleties of public-policy disputes. Moreover, James “ The Wisdom of Crowds” Surowiecki had made a persuasive case that even when comparatively ill-informed, the diverse many will usually outthink the expert-but-often-homogeneous few. In his book The Clinton Wars, former White House aide Sidney Blumenthal relates being chewed out by Clinton on one occasion when he and about five other white males presented some policy options they’d worked out. “You are the dumbest bunch of white boys I have ever seen,” Clinton barked, and he instructed them to consult in the future with women and minorities. When I first read this, I thought it was an example of Clinton internalizing the political imperative to keep all his constituencies happy. But if Surowiecki is right, Clinton was actually pressing his aides to give him smarter policy options.
But I digress.
The Surowiecki/Clinton theory of wisdom through diversity took a beating when I surveyed the Iraqi constitutions submitted for my contest. Creative busting of mental blocks was exceedingly scarce, and windy generality was pretty much the order of the day. A disappointing effort all around.
Some of the blame probably rests with me. In setting a deadline for submissions, I meant to write “5 p.m. Aug. 17” but somehow wrote “5 p.m. Aug. 16.” That gave readers only about two hours to submit entries. Recognizing my blunder, I accepted all entries regardless of when they were submitted (but I will not—repeat, will not—extend the deadline further. This is Chatterbox you’re dealing with here, not the Iraqi National Assembly). Even so, I ended up with far fewer entries than I’ve gotten in previous reader contests.
The basic problem, I imagine, is that as governing challenges go, this one is a son of a bitch. It will not yield to reason, because reason isn’t necessarily what divides the warring constituencies. I doubt I myself could have done any better.
That said, here are the winners:
4th runner-up: Bryan Frederick
How the constitution should be structured, in order to best ensure the
stability and territorial integrity of Iraq:
1. A federal state structure, with a regional layer of government for each of the three main ethnic groups, allowing them much the same local freedoms as the German lander or even U.S. states. Crucially, Mosul and Kirkuk would both be part of the Kurdish enclave. The constitution would explicitly prohibit the right of the individual “states” to secede from the country. Baghdad receives a special status as an “open” city, not belonging to any specific ethnic group.
2. Ideally, the constitution will state that national law is based on Sharia but will recognize other sources for law as well. The United States will succeed in getting a bill of rights inserted, protecting minority rights, and some ambiguous provisions about women that will be clarified later. (For what it’s worth, this is unlikely to be as big a stumbling block as many think. Even al-Sistani doesn’t want an Iranian-style government, as he thinks, accurately, it corrupts the clergy. The conflict on this issue is as much between the United States and the Iraqis as among the various groups. And if the United States insists on something, well, the Iraqis can always change it later when they’re gone!)
3. Oil revenues will all be handled by the federal government and distributed back to the regions on the basis of population. The first oil minister should be a Sunni.
Summary: The best-case scenario, above, involves the Shiites essentially compromising to placate the Kurds and Sunnis, ensuring their interest in the continuation of Iraq as a state (which the Shiites will, of course, end up ruling). This is probably overly optimistic, however.
How the constitution actually will be structured:
1. There will be some sort of federalist structure, but with the specific powers of the states to be determined later, probably by the National Assembly. Mosul will be in the Kurdish enclave, but Kirkuk will not be settled yet. The constitution will be silent on the right of states to secede, while of course implying that it’s not OK. Baghdad will be an open city as described above.
2. Law will be based on Sharia, but without prohibiting other sources as well. The United States will succeed in getting a watered-down bill of rights inserted, primarily for minority rights, and, surprisingly, strong legal language for the protection of women as well (at least, that’s how it will play).
3. Oil revenues will be distributed through the federal government, but with the exact decision as to how they will be distributed left undecided. The first oil minister will be a Shiite.
Summary: Obviously, this bargain kicks a number of crucial problems down the road, where they will almost certainly lead to future conflict, likely armed. However, there’s just no way the groups involved will be prepared to make the sort of compromises necessary to actually clarify the situation in this little time, and with this little popular backing. Not if they want to live, anyway. The problems will really start to come to a head next fall, when all this machinery really starts operating, and the United States is also starting to pull back troops for the midterm elections. Have fun, guys, glad everything’s under control!
3rd runner-up: Gerry Harold
Federalism: It can work; it works in Canada. Three Iraq provinces with provincial/regional legislatures that concern themselves with provincial/regional things like social services, roads, infrastructure needs, and regional legal issues. A constitutional provision sharing revenues of oil equally among the provinces based on population. Write a stipulation in the constitution that provinces cannot vote to separate from the federal system for 25 years. Institute a Supreme Court that is based on secular laws. Permit regional laws regulating such mundane things as alcohol sales, licensing of entertainment, traffic, and social contracts but subject to the Supreme Court. Keep the national capital in Baghdad.
Sharia: A system of laws that is based on privacy and equality and some form of an Iraqi bill of rights that protects individuals from arbitrary religious rulings that would be unfair to women and nonbelievers is necessary and should be put in place.
Theocracies simply don’t work! They are too repressive and arbitrary.
Oil Revenues: Share oil revenues with the three provinces based on population. The two regions that have the abundance of oil resources will benefit doubly since the residents of these areas will be best situated to work in the industry.
Iraq, with a population of 26 million, is similar in many ways to Canada. Regional differences, religious differences, resource disparity by region, yet a federal/provincial system works. Too bad Pierre Trudeau is not alive to help the Iraqis with their constitution-writing.
2nd runner-up: Alfred Barkan *
Article I
Foreigners get out!
Article II
See Article I
Article III
It is agreed by this constitution that all laws enacted by the government will be followed by all citizens, including all persons in the armed forces of Iraq, all members of the government, and all religious leaders.
Article IV
It is hereby decreed that the government will not do to the people that which the people shall not do to the government.
Article V
The government, as established, shall never change the first four articles.
Article VI
And now the government can be formed.
1st runner-up: Michael Mussman
I suggest the Iraqis take a hint from our own U.S. Constitution and come up with a sort of Connecticut Compromise of their own. Just as we avoided the issue of slavery for decades by counting African-American representation at three-fifths, so, too, they might try apportioning their representatives under a rubric of 2-3-5. That is, give two shares of parliamentary and Cabinet seats to the Kurds, three to the Sunni Arabs, and five to the Shiites. So, for example, in a 300-member parliament, (where each seat represents about 85,000 citizens) 60 seats are reserved for Kurds, 90 for the Sunnis, and 150 for the Shiites. Even better, sprinkle a dozen or so extra seats around the country’s center, seats that aren’t reserved for any one group, and keep them up for grabs for the highest vote-getter in that district, just to keep an element of surprise.
Same goes for governorates. Right now there are 18, and I suggest chopping three in half to create a total of 21 provinces. The four northernmost can go to the Kurds (yes, they get Kirkuk to themselves), where they already have their own semi-autonomous zone. Give the Shiites the nine big governates that make up the southern half of the country, and let each one vote to join a semi-autonomous zone (where even some forms of Sharia law could prevail). That still leaves up for grabs to the most popular politicians’ eight regions in the middle, including the huge al-Anbar and the populous Baghdad governates, where Sunnis are likely to hold a plurality of public support.
This 2-3-5 strategy could even work for oil distribution. If the central government were to tax all oil revenues at 30 percent and direct most of that cash to the middle provinces with no strings attached, then Sunnis would be guaranteed a decent enough share of the nation’s wealth. Nothing near what they used to enjoy, but they’ll do better than starve. Besides, this will gradually wean them off the oil addiction and encourage them to develop more complex industries like tourism and banking.
The women’s rights part is the toughest problem. If they create a Shiite semi-autonomous zone in the south and thus allow them to impose some forms of Sharia law, then women’s rights are bound to suffer. But as long as the Iraqis also take a parallel action to guarantee total equality between the sexes on a national level, then any governate outside the southern zone (i.e. Baghdad, Babil, Diyala) would be prevented from robbing women of their rights to divorce, own property, etc. I foresee a mass exodus from the hard-core conservative provinces to the more open-minded and tolerant areas of the center, an economic drain that might inspire the mullahs of the south to keep a lid on laws that restrict women too harshly. Hopefully the current rule reserving one quarter of all legislative seats for women will persist. But even that precaution isn’t likely to produce real equality any time soon.
This isn’t a perfect plan, but then neither was ours. At least it does not attempt to impose some pipe-dream Utopia that will only collapse overnight. The fact that this 2-3-5 deal almost reflects current reality makes it much a much easier plan on which to compromise. Sure, the leaders of Iraq will still have to sell it to their people, who will then have to debate and choose whether or not to accept it. Certainly there will be several amendments. Possibly even a civil war. But at this point, the best Iraqi Constitution is the one inspired by what already exists.
And the winner is … Aaron Rabiroff
The simplest solution to the impasse on the Iraqi Constitution would be to simply ignore the three contentious issues. Without making any firm commitments, the constitution could simply have vague statements about Iraq being an Islamic country, regional differentiations being respected, and natural wealth being used for the benefit of the people. These issues will be dealt with later through the normal legislative and judicial processes. This solution has three benefits: The political process allows for greater flexibility in determining outcomes, “normal” (as opposed to constitutional) rules can be easily changed later, and the legislature that does finally resolve these issues can be more representative of the population.
The U.S. Constitution may be illustrative. The U.S. Constitution is mostly limited to outlining the scope and composition of the national government. Left unresolved are such major issues such as the separation of church and state, the scope of federal power, and (initially) slavery. It is not clear why the Iraqis cannot do the same. Sunnis will be more likely to participate in future elections, which will give future parliaments greater legitimacy in deciding contentious issues. The flexibility of political solutions would make resolving these issues easier. For example, most of the oil wealth is in the south, with a smaller amount in the north. In the southern areas, oil revenue could be split 40 percent local, 60 percent national, but the north could have a 70-30 split in favor of the local government. Similarly, Shiite-dominated regions could impose Sharia to their hearts’ content without effecting the Sunnis, Arabs, or Kurds.
Finally, it is not clear why oil wealth is the most explosive problem, that the “Iraq war may not have been fought over oil, but the coming Iraqi civil war sure as hell will be!” The oil issue is about money, and in the end the two sides should be able to negotiate some way to divide the wealth. In contrast, federalism and Sharia are social issues and are therefore much harder to negotiate away. The finality of a constitutional solution would encourage extremism over these questions. A political solution would allow for more flexible resolutions that can be changed over time. This encourages groups to participate in the political process and resolve conflicts peacefully, which is the whole point of democracy.
* Correction, August 19, 2005: An earlier version of this column misidentified the author of this entry as James Chalmers. Click here to return to the corrected line.
