Peril in Iraq’s Constitution

With the announcement Sunday of the results in Iraq’s historic election, the winners must now form a government and write a constitution. At the first task, the Iraqis seem destined to succeed. Writing a constitution, however, may tear the country apart.

Iraq’s biggest winners were a list of Shiites assembled by Grand Ayatollah Ali Sistani that garnered about half the votes in the national assembly and a unified Kurdish list that won 26%, but this understates the country’s ethnic and religious divisions. In fact, about 80% of Iraqis voted for parties that represented their own ethnic or religious group, including Christian and Turkmen parties. And Sunni Arabs, who make up 20% of the population, expressed their own identity by not voting at all. In fact, only two parties made any real appeal beyond their own ethnic or religious group -- interim Prime Minister Iyad Allawi’s party and the Communist Party. Neither party can be considered “national”; they won negligible votes in the Kurdish regions and no more than 20% of the Arab vote.

Even though Iraq is fractured, the election results should make it relatively easy to form a government. Under Iraq’s interim constitution, a two-thirds majority of the national assembly is required to choose the president and the prime minister. That means a coalition between the Shiite and Kurdish lists would be sufficient, and, in fact, the Kurds are proposing a power-sharing deal that would give them the figurehead presidency and some key ministries (as well as some policy concessions) in exchange for their supporting a Shiite prime minister and government. Although some Shiites have argued that their electoral majority allows them to ignore the U.S.-written interim constitution (which the Bush administration negligently failed to make binding), doing so would lead to a Kurdish pullout from Baghdad and possibly provoke secession. Thus, a deal along the lines sought by the Kurds seems probable.

Both Shiites and Kurds want to erase the vestiges of Saddam Hussein’s Sunni-backed regime. They will be tough on the insurgency -- using the Kurdish peshmerga and Shiite militias rather than the ineffective U.S.-created new Iraqi army -- and will accelerate the de-Baathification process suspended by Allawi. Because Kurdistan is already functionally independent from the rest of Iraq, the Kurds have little incentive to block Shiite efforts to Islamicize Arab Iraq. In return, the Kurds expect Baghdad not to interfere in their affairs and to support Kurdish demands to control the oil-rich city of Kirkuk.

But what will happen to such a coalition when it comes to writing a constitution, a process that demands opposing sides to look past their differences and agree on a single, defining document?

Kurds and Shiites have radically different visions for Iraq’s future. The Kurds are secular and pro-American and look to Western democracy for their political model. The Shiites want to make Islam the principal source of law and, although insisting they will not copy Iran’s overtly clerical system of government, clearly see Iran as a friend and inspiration.

How to deal, for example, with Kurds who are proud of the progress that women have made in their region and Shiite clerics who want religious law written into the constitution -- law that includes provisions for daughters getting only half as much inheritance as sons? Even more problematic, Kurds and Arabs do not share a commitment to the idea of Iraq. Sunni Arabs have always been nationalistic, and the Shiites may become nationalists now that they are rulers. But the Kurds do not want to be Iraqi at all and will not accept a constitution that restores any central government authority over their region.

The neoconservative architects of U.S. policy on Iraq talk about the creation of an Iraqi constitution as if it were going to be a version of the American experience in Philadelphia in 1787, with divisive issues settled by a series of grand compromises. But some differences are so profound that a forced compromise could actually contribute to the breakup of the country (as indeed was true of the Philadelphia compromise on slavery).

Clearly, a constitution acceptable to all three of Iraq’s main constituencies would be the best of all possible worlds, and it’s not inconceivable that the Iraqis could somehow achieve it. But the question for Iraqi leaders -- and the Bush administration -- is how hard to push for a governing document when it could destroy a fragile but functioning government already in place.

On Iraq’s two most divisive issues -- Kurdistan’s status and the role of Islam in the state -- there is a modus vivendi: Kurdistan is de facto independent, while the Shiites enforce Islamic law in their part of the country. A Shiite-Kurdish coalition government can make this arrangement work; a protracted constitutional fight over religion and Kurdish rights could tear Iraq apart.