Jon 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