Iraq's Constitution: A Drafting History

Abstract

This Article provides a drafting history of the most significant and controversial provisions of the 2005 Iraqi constitution. By offering a record of how these provisions evolved into their final form, the Article will address three key questions that inevitably arise about all constitutions: (1) how the final version of particular provisions came about; (2) what the drafters intended those provisions to mean; and (3) why the drafters ulti­mately chose to exclude certain draft provisions from the text. The Article accordingly creates a basic record that future Iraqi, Middle Eastern, and Western scholars may use in writing an even more comprehensive history of the constitution and of this period in Iraq's history.

As Legal Adviser and Deputy Legal Adviser, respectively, at the U.S. Embassy in Baghdad during Iraq's constitution drafting process, our pri­mary role was to advise senior U.S. government officials about this process and about the draft texts the Iraqi negotiators produced. We followed and recorded the evolution of the constitution drafts from late June 2005, when the first set of provisions emerged from the Constitutional Committee, until mid-October of the same year, when Iraqi leaders agreed on the final set of changes. The textual analysis herein reflects a significant number of the conversations and discussions that occurred among Iraq's political leaders in the periods leading up to the August 28 declaration that the text was complete and the October 12 presentation to the Transitional National Assembly (TNA) of additions and modifications to that text. This Article also relies on the dozens of iterations of the constitutional text produced by the Constitutional Committee and other players during that time period. The Iraqi constitution contains 144 articles. The text of a fair num­ber of these articles changed little, if at all, between the time that the rele­vant subcommittee of the Constitutional Committee first submitted them to the Constitutional Committee and the time that the political leaders declared the text to be final. Accordingly, this study focuses on only those sections or articles of the text that changed repeatedly and significantly. In particular, we address those articles that fall within seven subject areas: (1) the role of Islam in the constitution and future legislation; (2) de­Ba'athification; (3) Iraq's commitment to international law and treaties; ( 4) women in the constitution; (5) the development of a higher judicial body to exercise judicial review and other dispute resolution functions; (6) the allo­cation of power between federal and non-federal authorities, including control over natural resources; and (7) the powers of the regions.

Some of the textual language we discuss in the following sections may change in the next several months. Article 14 2 of the Constitution pro­vides that the new parliament-the Council of Representatives (COR)-will form a constitutional review committee at the beginning of its work. The review committee met for the first time on November 15, 2006. According to the constitution, within four months of its establishment, the committee must present to the COR a report containing proposed constitutional amendments. The COR will vote on the amendments and, if they pass by an absolute majority vote, the newly amended text will be presented to the general public for approval. Nevertheless, this Article will continue to serve as an historical record, regardless of any potential future constitu­tional amendments. Further, it seems unlikely that the review committee will recommend a large number of amendments to the constitutional lan­guage, given that the Shia Alliance and the Kurds, the two groups most heavily involved in drafting the text, garnered almost two-thirds of COR seats in the December 2005 election.

Two final introductory notes are necessary. First, in a number of dis­cussions herein, we will refer to "Shia negotiators" or "the Kurdish view." We do so mostly as a matter of shorthand. Although of ten those of a par­ticular ethnicity or sect shared a particular viewpoint during the negotia­tions, we do not intend to suggest that the negotiations were conducted exclusively along sectarian lines or that every individual from a particular "identity group" shared a single view on policy and draft language.

Second, throughout this Article we refer intermittently to the diver­gence of texts during the second week of August. The Shia-led TNA Consti­tutional Committee controlled the operative text throughout July and into early August. When it became clear that only the political principals, rather than the Committee members, would be able to make key compro­mise decisions on such intractable issues as how to deal with natural resources and how to create regions, the leaders convened a "leadership summit," at which the Constitutional Committee would present the issues that it had been unable to resolve. The summit convened around August 9 or 10, with a view to meeting the August 15 deadline. The Kurdish Alliance and secular Sunnis and Shia, such as Hajim al Hassani, Ghazi al Yawer, and Ayad Allawi, were frequently present. However, for large parts of the summit negotiations, not all of the relevant principals attended the meet­ings. The Shia Alliance, represented chiefly by Abdul-Aziz al-Hakim, Ahmed Chalabi, and Humam Hamoudi (the Chairman of the Constitu­tional Committee), also were present for some sessions, but not to the extent necessary to make the gathering a true leadership summit.

Instead of only addressing the issues recommended by the TNA Con­stitutional Committee, the summit negotiators, often comprising only the Kurds and secular Shia and Sunnis, began to make changes to the entire document over successive days. By August 14, there were two drafts of the constitution: the Shia-driven TNA Constitutional Committee draft, which continued to evolve on its own; and the leadership summit document, which used the TNA draft as its starting point but moved in a different direction. As a result, on August 15, the leaders attempted to merge the two versions in order to meet the deadline. However, they were unable fully to merge the documents in time and ultimately chose to seek an exten­sion. Despite not completing the effort to join the two documents that day, the leaders were able to merge the drafts back into one operative text shortly thereafter. There has been considerable speculation by the press, by non-govern­mental organizations, and by Iraqi citizens themselves about why various provisions of the new Iraqi constitution look the way they do and about what they mean. By providing a record of how some of the most important (and most disputed) articles evolved into their final form, this Article should assist Iraqi judges, legislators, and citizens, as well as international scholars, in evaluating what the drafters intended the final provisions to mean. We also consider the role of Iraqi courts and the Council of Repre­sentatives in constitutional interpretation and anticipate some of the most difficult questions that those institutions will face in the short term.