Guest Post by Jon Weinberg: The Limits of Iraqi Constitutionalism


constitution_quill_pen.jpgJon Weinberg is a research intern with the New America Foundation/Middle East Task Force.
The Iraqi constitution stipulates that there be “a referendum in Kirkuk and other disputed territories to determine the will of their citizens, in a period not to exceed (the thirty first of December two thousand and seven).” Two years after that deadline, the fate of Kirkuk has yet to be determined.
In an interview with the Council on Foreign Relations’ Bernard Gwertzman, which was published yesterday, Jane Arraf, Baghdad Correspondent for the Christian Science Monitor points out that “[t]here were to have been referendums, and there were to have been agreements. But those deadlines have passed, and one of the problems is that the constitution that was put through under U.S. pressure delayed the question of what to do about Kirkuk.”
In describing the situation in Kirkuk, Arraf may be touching on something more profound and far-reaching: the consequences of imposing U.S.-style constitutionalism on Iraq.
In the United States, we try to adhere to our constitution as a sort of secular bible. As such, it may seem only natural that we promote our brand of constitutionalism in Iraq. Yet, while this may be well-intended, it is not clear that Iraq was ready to draft and adopt a supreme, all-encompassing constitution in 2005.
Nor is it clear now. That is not to say that Iraq should not have any type of constitution. Far from it. Rather than using a single document which delineates every component of popular sovereignty, basic law coupled with an uncodified constitution may still be more suitable for Iraq until the country’s many ethnic and religious groups can agree upon a more equitable and durable codified constitution.
An uncodified constitution, like those of the United Kingdom and New Zealand, allows for laws to be built over time, putting an emphasis on precedent rather than whether individual laws are constitutional or unconstitutional. In keeping with maintaining popular sovereignty, the Parliament may change the constitution by passing new Acts of Parliament. This is a far more flexible process than the current prerequisite for amendments, which includes the following troubling provision: “In case of a contradiction between regional and national legislation in respect to a matter outside the exclusive powers of the federal government, the regional authority shall have the right to amend the application of the national legislation within that region.” Secession, anyone?
All told, as an alternative model, an uncodified constitution is still inherently imperfect (many in the United Kingdom still question its merits), but makes far more sense in a fledgling state that has yet to solidify its governance.
In any event, the suitability of Iraq’s current legal structure is certainly something to keep in mind during the months and weeks leading up to the parliamentary elections scheduled for this coming March.
— Jon Weinberg


4 comments on “Guest Post by Jon Weinberg: The Limits of Iraqi Constitutionalism

  1. Paul Norheim says:

    Then there are foreigners trying to influence the content of the constitution to
    make it fit – perhaps not so much the national interests of their home country as
    their private interest, like Peter Galbraith.
    From the New York Times two months ago (this was a big case in Norway last autumn
    – P.G.`s Norwegian wife lives in my hometown):
    “U.S. Adviser to Kurds Stands to Reap Oil Profits
    Published: November 11, 2009
    OSLO — Peter W. Galbraith, an influential former American ambassador, is a
    powerful voice on Iraq who helped shape the views of policy makers like Joseph R.
    Biden Jr. and John Kerry. In the summer of 2005, he was also an adviser to the
    Kurdish regional government as Iraq wrote its Constitution — tough and sensitive
    talks not least because of issues like how Iraq would divide its vast oil wealth.
    Now Mr. Galbraith, 58, son of the renowned economist John Kenneth Galbraith,
    stands to earn perhaps a hundred million or more dollars as a result of his
    closeness to the Kurds, his relations with a Norwegian oil company and
    constitutional provisions he helped the Kurds extract.
    In the constitutional negotiations, he helped the Kurds ram through provisions
    that gave their region — rather than the central Baghdad government — sole
    authority over many of their internal affairs, including clauses that he
    maintains will give the Kurds virtually complete control over all new oil finds
    on their territory.
    Mr. Galbraith, widely viewed in Washington as a smart and bold foreign policy
    expert, has always described himself as an unpaid adviser to the Kurds, although
    he has spoken in general terms about having business interests in Kurdistan, as
    the north of Iraq is known.
    So it came as a shock to many last month when a group of Norwegian investigative
    journalists at the newspaper Dagens Naeringsliv began publishing documents
    linking Mr. Galbraith to a specific Norwegian oil company with major contracts in
    Interviews by The New York Times with more than a dozen current and former
    government and business officials in Norway, France, Iraq, the United States and
    elsewhere, along with legal records and other documents, reveal in considerable
    detail that he received rights to an enormous stake in at least one of
    Kurdistan’s oil fields in the spring of 2004.”
    More here:


  2. JohnH says:

    “In the United States, we try to adhere to our
    constitution as a sort of secular bible.” Yeah,
    right! In the United States, we USED to try to
    adhere to it. Now the President gets to determine
    when and where he goes to war and who he snatches of
    the streets and sends to a black hole. Congress has
    become little more than a rubber stamp.


  3. JamesL says:

    Good post. US imposition of a system it thinks it prefers upon Iran has fundamental flaws, to the point of being non-functional from the offset, is a perspective Americans don’t wish to hear.
    Law built on precedent has its own serious flaws, which are even less likely to be questioned by Americans. The unequal advantages of corporatism over time inexorably pressures legal precedents toward corporate class advantage, if not in every case by individual precedent, in general via complexity which disfavors human citizens. Americans (perhaps all humans), however, prefer to see the bogey man in others before themselves. And a continual procession of bogeys are the sustenance of news/entertainment media.


  4. PissedOffAmerican says:

    Well, Jon, perhaps its a bit early for such concrete musings on future aspects of Iraqi governence and law. Maybe the inevitable bloodbath between Sunni and Shiite will need to play out first before the flavor of any ruling documents can be determined. While we are still lying about “the success of the surge”, perhaps trying to impose a western style credo on a middle eastern style society is just a tad presumptious, ya think?


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