In Iraq, the context for constitution-making determined the procedure and to some extent the outcome of the constitutional process. The United States, having overthrown the Baathist regime of Saddam Hussein, needed a formula to end its occupation of Iraq, over which it had assumed sovereign powers. It regarded a new constitution established on democratic principles with proper respect for human rights as essential to the return of sovereign powers to the Iraqis. A new constitution was also the objective of the United Nations, a view endorsed by the Security Council. Most Iraqis had high expectations of the new constitution. So a new constitution became the focus of diplomatic negotiations as well as the event that would mark the transfer of sovereignty to Iraq.
Throughout the process of constitution-making, the domestic politics of the United States played a greater role than the wishes or analyses of the Iraqi politicians or public. As the occupying power, it played a central role in defining and managing the transitional or interim arrangements. (Great Britain, as a junior partner of the United States in invasion and transitional arrangements, seems to have had little influence.) Through its Special Representative, Lakhdar Brahimi, the United Nations mediated between the United States administration and the most influential Shia leader, Grand Ayatollah Al-Sistani, about the process for the making of the constitution. The United States had proposed two alternative methods but Al-Sistani opposed both proposals and insisted that the constitution be made by an elected assembly.
It would have been difficult to organize elections, and the process would have to be postponed. On the recommendation of Brahimi, the Ayatollah agreed that after a period of interim constitutional arrangements, an elected assembly would draft and it would be adopted by a referendum. It was promulgated in March 2004. The Transitional Administration Law was a fairly comprehensive document, covering most aspects of the state. Elections were expected to be held in January 2005, and the assembly was expected to serve both as an ordinary legislature and as the constituent assembly.
It was the expectation of the United States, the United Nations, and many Iraqis that the constitution and the process for making it could help lay the foundation for reconciliation and unity. The Transitional Administration Law itself required the national assembly to draft the constitution “by encouraging debate on the constitution through regular general meetings in all parts of Iraq and through the media, and receiving proposals from the citizens as it writes the constitution” (article 60). And in the period leading up to the referendum (scheduled for no later than October 15, 2005), the draft constitution was to be published and “widely distributed to encourage a public debate about it among the people” (article 61). Unfortunately, there was little public participation.
The time given for the drafting was limited. Elections were to be held in January 2005; the draft had to be ready by August 15 and the referendum by October 15. The voting in the referendum for a positive answer required an overall national majority, and rejection required a two-thirds vote in no more than three out of eighteen governorates. By early May the commission had not begun its discussions, and not until June did it begin its deliberations. That left it less than six weeks for drafting. Some of this time was taken by presentations given by experts on a variety of topics.
The commission made considerable progress after that, working through its subcommittees. But consensus was hard to establish as the top party leaders were not in the commission. With the swing of the dominant Shia personalities toward federalism, things were beginning to move, but time was short. Consequently, the commission decided to request the one-time extension of up to six months allowed by the constitution. At this point the United States ambassador jumped in, reprimanded the chair of the commission (who had to retract the application), and instructed the assembly that no extension was to be granted. It was also at this point that the ambassador intensified pressure on the top leaders to bypass the commission and make their own deal under his guidance.
Although the commission and the assembly were denied the extension, the ambassador’s own cabal took time, going well past the August 15 deadline. It was not until sometime in September that the draft was taken to the assembly for its approval. This left little time for analysis and discussion of the draft constitution before the referendum. This time the Sunnis did go to polls— in order to kill the draft. They nearly succeeded. Although there was considerable national support, in three governates the poll was negative, but in one of them the two-thirds negative vote did not materialize (due to rigging, the Sunnis allege). Thus the draft become law, under inauspicious circumstances and having been rejected by one of the three major communities. The proposed amendments did not materialize in good time or in sufficient measure to satisfy the Sunnis. The constitution, which had promised so much at the inception of the process, ended in discord, and sharpened the differences between the Sunnis and others. It did not restore law and order; on the contrary, it gave further encouragement to the insurgents, and suicide bombings and other forms of violence continued.