Iraq's Constitutional Moments and the Institutionalization of Ethno-sectarianism

• Citation: Vol. 36 No. 2
• Publication year: 2022

Iraq's Constitutional Moments and the Institutionalization of Ethno-Sectarianism

Jomana Qaddour

IRAQ'S CONSTITUTIONAL MOMENTS AND THE INSTITUTIONALIZATION OF ETHNO-SECTARIANISM

Jomana Qaddour^*

Abstract

What role did Iraq's ethno-sectarian cleavages play in the process of drafting its 2005 Constitution? And what role has that Constitution played in further entrenching those cleavages? The 2003 Iraqi invasion by U.S. and allied forces ultimately resulted in the drafting of two of the country's most important documents: the Transitional Administrative Law and the 2005 Constitution. These two documents—heavily influenced by the United States and Britain, as well as powerful Iraqi stakeholders (both local and exiled)—were approved despite their serious deficiencies, particularly in articles pertaining to power sharing, individual rights, and civil liberties. These deficiencies, some of which were inspired by ethno-sectarian cleavages, resulted in a constitution that has since fueled further turmoil in Iraq. Given the wave of new constitutions being drafted across the Arab world, this Article examines one of the Middle East's most pivotal constitutional processes. Lessons can be extracted for future constitutional processes, especially in diversely populated countries. Crucially, this Article dissects the ethnno-sectarian bargaining that transpired between the many stakeholders in drafting the Constitution, resulting in a document that has set Iraq on an undemocratic trajectory ever since.

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Table of Contents

Introduction.............................................................................................238

I. Iraq in Historical Context..........................................................240
II. Constitutionalism.........................................................................251

A. Constitutional History Before 2005 .......................................... 253

III. The Transitional Administrative Law......................................256

A. Rights and Civil Liberties ......................................................... 258
B. Power Sharing .......................................................................... 263

IV. Iraq's 2005 Constitution..............................................................267

A. Drafting .................................................................................... 267

1. Composition of the Committee ........................................... 267
2. Timeline of the Committee.................................................. 269

B. Contents .................................................................................... 271

1. Preamble ............................................................................ 271
2. Rights, Protections, & Civil Liberties ................................ 272
3. Power Sharing .................................................................... 275

a. Judiciary ...................................................................... 276
b. Legislature ................................................................... 276
c. Central vs. Local Power .............................................. 277
d. Unwritten Ethno-Sectarianism .................................... 280

Conclusion.................................................................................................281

Introduction

In October 2019, the world witnessed massive waves of protests in Iraq; across televisions all over the world, protesters—not for the first time—could be seen taking to the streets, demanding an end to the rampant corruption, lack of basic services, and unresponsive politicians. The Iraqi Human Rights Commission estimates that from october 2019 through July 2020, at least 550 Iraqis were killed during these protests.¹ And while the reality of COVID-19 coupled with state-led crackdowns has forced many of the protesters to go home, members of parliament—generally removed from the pulse on the ground and the needs of Iraqi citizens—doubled down on blaming parties other than their own for stagnation and avoided any discussion of corruption and misgovernment, a main source of Iraqi frustration.²

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Over sixty percent of Iraqis are under the age of twenty-five:³ they have grown up in a largely war-torn and corrupt society, and according to experts, at least ninety percent of the protests are made up of students and new college graduates.⁴ Most strikingly, southern Iraq, and particularly Basra—a location deemed Iraq's oil hub and largely made up of Iraq's majority Shia sect—is incredibly vocal in its rejection of Iraq's current state.⁵ But this is not the first time Shia protestors have mobilized against a Shia-led government.⁶ Indeed, contrary to what many observers may think, the newest wave of protests reinforces the reality that Iraq's problems are not centered around sectarian struggles for power, even though political rhetoric and political parties, as well as Iraq's constitution, have been designed to exploit such cleavages. In addition to calls to address high unemployment, lack of security, and ineffective governing institutions, there have been calls to amend, and in some cases totally re-write, the constitution which protestors appropriately consider lacking in legitimacy and contributing to much of the chaos seen in Iraq today.⁷ These justified complaints come from all sects and ethnicities.

In the minds of most people, the 2003 invasion is singled out as the moment when sectarianism broke out in Iraq. As Iraqi scholar Fanar Haddad points out, "if we restrict our understanding of 'sectarianism' solely to violent sectarian conflict, widespread sectarian hatred, and the empowerment of sect-centric political actors, then 2003 undoubtedly becomes the moment separating 'sectarian' Iraq from a 'non-sectarian' one."⁸ However, expanding the definition of sectarianism to include "sect-centric bias, prejudice, stereotypes, and institutional discrimination," Fanar argues, would mean "sectarianism in Iraq . . . was alive and well long before 2003."⁹

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Those without knowledge of Iraq's history are unaware of the root causes of the sectarianism seen in its society today. Without such knowledge, it is difficult to address the institutionalization of societal cleavages, and even more difficult to develop solutions to address them. To correctly understand which events led Iraq to the place it is today, one must come to grips with the impact of the past and current legal framework—specifically the Iraqi constitution—on institutionalizing Iraq's sectarian elements. It is only in this way that appropriate recommendations can be made on how to move Iraq forward from its state of turmoil to a more sustainable, stable, and peaceful state.

This Article attempts to review Iraq's constitutional history and highlight the role it has played in solidifying the seeds of division which tear the country apart today. This Article begins by reviewing the most critical historical moments in Iraq's history which laid the seeds for solidifying sectarianism in society. It then addresses the role of constitutionalism in non-democratic societies. Next, this Article discusses the relevant constitutional history and institutionalized sectarian cleavages that are seen today, with a particular focus on two categories of articles in the constitution: power sharing and civil rights and liberties articles. The Article ends with thoughts on how Iraq can move forward from here.

I. Iraq in Historical Context

To understand today's Iraq, it is important to understand its history. An appropriate starting point is the reign of the Ottoman Empire. Like other European empires, interaction between the subject and the state was limited, with "the collection of taxes being its most important contact with the population."¹⁰ The state's function largely focused on the provision of basic security to its constituents.¹¹

Neither the Ottomans Empire nor Europeans embraced liberal constitutionalism until the advent of the modern nation-state; in that respect they were the same. However, they departed on one critical issue. As a result of the Enlightenment and the French Revolution, a universal "assumption of human reason, rational thought and the sovereignty of each individual" arose in Europe but remained absent in the Ottoman Empire's culture.¹² Although in the period immediately following the Enlightenment, democratic principles remained the exception rather than the norm in Europe; the governor—rather than the

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governed—remained the source of legislative authority.¹³ Meanwhile, Islam remained the Ottoman Empire's source of legitimacy; the Sultan served as "God's Shadow on Earth."¹⁴ The Empire's conservative political-legal culture developed no legal code as an alternative to Islamic law (sharia).¹⁵ The Sultan issued laws supplementing sharia which "were ad hoc and neither inclusive nor complete, nor permanent[.]"¹⁶ But supplementing laws did not constitute a definite legal code or political tradition. This existence of two sources of law—Islamic law and laws emanating from the political executive, i.e., the Sultan—was a result of functionality, and was not intended to create the semblance of separation of powers.¹⁷

Given that the Empire viewed subjects primarily through their tax status, which was determined by religious affiliation, an individual's religious identity became crucial in any interaction between the individual and the state.¹⁸ While the Ottoman Empire was committed to the notion of "Ottoman Muslim supremacy," it reigned over a multi-ethnic, multi-sectarian, and multi-religious empire.¹⁹ The Ottomans employed the millet system of taxation, which "reinforced the emphasis on religion in a profoundly unequal and political order" by prioritizing Muslims and giving dhimmis (non-Muslims) a separate status.²⁰ It imposed jizyah (taxes) upon non-Muslims, and applied laws to them which differed from the laws imposed on...