Seeker Blog

Feldman’s comments are worth a read - a law professor’s take (he was a senior adviser for constitutional law to the Coalition Provisional Authority in Iraq). He believes forcing the draft to a deadline was a bad idea, that the resulting document is nevertheless very encouraging, but the inability to resolve Sunni concerns is a real risk.

A brief excerpt, definitely not a substitute for reading the complete essay:

Despite the Sunni recalcitrance and Shiite inflexibility that marred negotiations, the proposed constitution is a work of which Iraqis could justifiably be proud. For example, some leaked early drafts expressly endorsed the Shiite clerical establishment and promised that Islamic law would trump equality if the two should collide. The final version, however, is far more egalitarian, guaranteeing the equality of all Iraqis before the law regardless of sex, religion or ethnicity. It also ensures that women will, initially anyway, constitute a quarter of the national legislature, a far higher percentage than in our own Congress nearly a century after women’s suffrage.

Yes, as some critics point out, the text certainly reflects many of the Islamic preferences of those who elected the majority Shiite political coalition. And it prohibits laws that contradict “the provisions of the judgments of Islam.” But it simultaneously bans laws that contravene “the principles of democracy” and the fundamental rights guaranteed by the constitution. This innovative formulation goes far toward establishing Islamic and democratic values on equal footing - more so than any other constitution in the Islamic world. In a similar vein, the draft confers on Iraqis all the rights contained in international agreements that Iraq has signed, provided these do not contradict the principles of the constitution itself.

Note that the stipulation that at least 25% will be female compares to the US senate/house figure of 15%.

Although things look bad today, the game is not yet quite over. Should the constitution be rejected on Oct. 15, everyone can head back to the negotiation table and try again. In fact, the worst outcome might be a passage of the draft despite widespread rejection by Sunni voters. While it is apparently too late to change the text, Shiites and Kurds can still reach out to Sunni voters and try to convince them that they would flourish under the constitution. This would require a few public concessions, including commitments not to form a southern mega-region that leaves the impoverished Sunnis trapped between de facto Shiite and Kurdish states.

A constitution is just a piece of paper, no better than the underlying consensus - or lack thereof - that it memorializes. If Iraq adopts a constitution that reflects a profound and unresolved national split, violence and eventual division of the nation will follow. Ordinary Iraqis and American soldiers will be the losers. So will the ideal of constitutional government.