Brendan O'Leary on the Iraqi constitution

See this report in the Washington Post:

Baghdad, Aug. 22 - Iraq's Shiite Muslim majority and its Kurdish allies moved Monday toward fundamentally reshaping their nation, submitting a proposed constitution that would create a loose federation with strongly Islamic national laws.

The draft constitution, sent to parliament just five minutes before a midnight deadline, outraged negotiators for Iraq's Sunni Arab minority, and Sunni constitutional delegates warned that civil unrest could erupt if the charter becomes law over their objections.
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But the coalition of Shiites and Kurds, which holds a heavy majority in parliament and could easily approve the constitution on its own, agreed late Monday to postpone a vote for three days in hopes of appeasing Sunni negotiators.

Commenting on it in an email, Brendan O'Leary writes:

This story is mostly accurate, and better than most other accounts published today, including that in the New York Times. Five comments:

(i) Kurdistan has achieved its 'red lines' in the negotiations. The KRG [Kurdistan Regional Government] retains its full domestic legal autonomy; the legal competences of the federal government are narrowly circumscribed, and less than those in the Transitional Administrative Law; and in a clash between regional and federal law in an arena of regional competence, regional law is supreme. The Peshmerga will be the internal security/regional guard of Kurdistan; and the KRG will be able to block the deployment of the Iraqi army within Kurdistan. Natural resources that are currently exploited are a joint competence with joint revenues; unexploited/new natural resources belong to the regions. Art. 58 of the TAL (reversing Saddam's 'Arabization') will be implemented, and there will be a referendum on Kirkuk and the disputed territories by 2007. The future constitutional amendment process requires the consent of the Kurdistan National Assembly if a change affects its powers.

(ii) Kurdistan's delegation had no plans completely to exclude the Sunni delegation, as suggested by the quotation from the US ambassador. The Sunni delegates' utterly negative 'negotiating' strategy sidelined them from the federal bargain. Crudely, they misread 'consensus' as meaning 'unanimity' and thought they had a veto over the draft, which they sought to have fail before fresh elections. Their elites must learn that their days of barking orders towards the others are over.

(iii) Women's rights are secure in Kurdistan; indeed, given the limited range of competences of the federal government, the ambit of Islamist jurisprudence (at federal level) over those regions that don't want it is frankly unimportant. Those who want Allah's law in their regions are free to apply it, but subject to the charter of rights and democratic principles. Women, by the way, retain the right to a minimum of a quarter of the places on electoral lists.

(iv) Despite what you may read, the Sunni Arabs are most unlikely to have a blocking majority of two-thirds in three governorates. They would likely have Anbar and Salahaddin, if their voters turn out, but this would not enable them to block ratification. Provided minorities are protected in Ninevah and Diyala a Sunni 'no' vote cannot get two-thirds. There may be a paradox: al-Sadr may want to organize a 'no' vote, but he would then expose his voters to attacks by al-Qaeda in Mesopotamia and others.

(v) The key player was Masoud Barzani - through whom deals were made, both with the UIA leadership and the US ambassador. It is difficult to imagine the deal having been done without Barzani's style and integrity. The US ambassador was immeasurably better than Bremer, and walked away from Washington's script, both from conviction and necessity.

See also a much longer piece by Brendan on the constitutional reconstruction of Iraq, begun here, and in its entirety here and here [both pdf]. An excerpt:

The palpable reality of deep sectarian division among Arabs is simply ignored by those who casually talk of a nationalist "Iraqi resistance". The B'athist and Islamist insurgents at war with US troops, and their multi-national allies, are mostly Sunni Arabs. But they are also at war with the Shi'a dominated and properly elected Iraqi government. The jihadists among them are trying to provoke the Shi'a Arabs into a sectarian war - believing it will hasten America's departure. The methods they use - suicide bombings in market-places and outside mosques - are terrorist by almost anyone's definition. The exception is that repulsive branch of Islamist thought which decrees that Allah will decide the guilt or innocence of murdered civilians and children - and thereby licenses the complete abandonment of the moral control placed on guerrilla warfare by the notion of minimizing "collateral damage" to non-combatants.

What is their agenda? It is not mad; but it is not democratic, federal or pluralist. The jihadist insurgents and the B'athists want the Americans to leave, and then to restore the supremacy of Sunni Arabs. They will leave their internal disputes, perhaps, until later. The Shi'a Arabs, by contrast, want the Americans to go when they can control Arab Iraq, what I hereafter refer to as Mesopotamia. "Please go, but for Allah's sake stay a little longer" is their considered refrain to Washington. For now, it is the Shi'a Arabs who matter, because the Sunni Arab insurgents cannot win, unless Washington decides on an undignified exit. In response to the jihadists' provocations, and perhaps not just in response, the Shi'a militia, notably the Badr Brigades, are killing B'athists, past and present.

If Shi'a Arabs had a free hand they would re-shape all of Iraq in their image, but they don't agree what that is. They are, presently, more disunited than Kurds. Some want an Iraq that looks like Iran, a theocracy, replete with the shari'a, outlawing alcohol, and the repression of women. They may get their way in provinces where they are strong, and in some places Islamic vigilantes are engaged in Koranic enforcement. But not all Shi'a Arabs conform to this stereotype. Some lived in exile in Iran, astringent therapy for those who want an Islamic state. Some insist that they are as Arab as they are Shi'a, and are wary of imitating Iran, or of becoming Tehran's clients. Others are secular. They vary, in short, between those who want to govern all of Iraq (including Kurdistan), those who confine their ambitions to Arab Iraq (Mesopotamia), and those who confine their ambitions to self-government in Shi'a dominated Arab Iraq (Baghdad and the South). This internal division among them may scuttle an agreement. Those who want to govern beyond Shi'astan want to make a deal with Sunni Arabs; those who want to govern primarily in Shi'astan are willing to make a deal with Kurdistan.
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Insurgent Sunni Arabs are at war with Shi'a Arabs and in their dreams would re-conquer Kurdistan. The fallacy that they constitute an "Iraqi" nationalist resistance should be laid to rest: it is an illusion beloved by both Sunni Arabs and critics of America's decision to depose Saddam. The resistance is that of a formerly dominant minority, and it is either fascistic or religiously fanatical, or both, in thought and deed; it is not a program of self-government [-] to the extent that it is a program it is one that demands to govern others against their will. Their international jihadist supporters in the Sunni world, notably al-Qaeda in Mesopotamia, regard the Shi'a Arabs as heretics and treat Iraq as a site for a holy war of redemption. They don't want to be, and cannot be part of the new constitution. The success of the constitution must be measured by their eventual defeat. They cannot be "included", directly, or indirectly. To treat with others as their supposed interlocutors, as the Bush administration has undoubtedly contemplated, only
serves to undermine the legitimacy of the transitional Iraqi government.

Read the whole thing.

[Brendan O'Leary is Lauder Professor of Political Science at the University of Pennsylvania, co-editor of The Future of Kurdistan in Iraq (2005), and a constitutional advisor to the Kurdistan Government.]