Adopting a draft constitution is a very difficult exercise under American occupation, writes Zaid Al-Ali As Iraqis get ready to go to the polls on 15 October 2005 in order to decide whether to adopt the country's defective sdraft constitution, the question on every observer's lips is: why the hurry? Why, indeed, was the Iraqi constitutional committee made to complete its work in two months, when just about every other modern constitution took years to write? The answer from the Bush administration is "political momentum". Adopting a constitution, no matter what it says, and no matter how or by whom it was written, is considered by the White House as a sign of progress. Nevertheless, the US's own generals have testified before Congress that they do not expect the insurgency to diminish if the constitution is adopted. The situation may be more dangerous than they think: the constitutional process was so divisive, and the text itself so poor that it may very well end up making matters worse in Iraq. Last week's drama surrounding the rules governing the referendum exhibited just how problematic the process has become. The Transitional Administrative Law, which serves as a type of temporary constitution for Iraq, and which governs the constitutional process, provides that the constitution must be put to a referendum. It also states that the constitution must be approved by 50 percent of voters, and that if two-thirds of the electorate in three governorates reject the constitution, then the entire process will have to start all over again. On Sunday 2 October 2005, Iraq's national assembly gathered and decided that in order for the two-thirds requirement to be satisfied, two-thirds of registered voters must reject the constitution, rather than two-thirds of actual voters. Because of the terrible security situation in many parts of the country, many Iraqis who are registered to vote will not be able to cast their vote on election day -- particularly in areas where opposition to the constitution is strongest. This new rule would have made a rejection of the constitution almost impossible. But for once the United Nations spoke out against what was clearly a departure from international standards and the national assembly reversed the new formulation three days later. Nonetheless, the episode exhibited the attitude of many of the parties involved in the constitutional process. Ignoring the the fact that a constitution should be a social contract between all the different elements of a society and should never be imposed, many of those on the constitutional committee have resorted to dirty tricks in an attempt to rob the minority of their say. In terms of substance, the draft constitution does contain a number of positive and progressive elements. But it is far from perfect. The consitution provides for a flexible federal structure in which Iraq's provinces can decide for themselves just how much autonomy they will enjoy. This is not unique in comparative constitutional law. The Spanish constitution, by way of example, also provides for this type of flexible approach. The problem, however, is that under the Iraqi constitution there is almost no limit to the flexibility allowed. Any number of provinces would thus be able to join together and form a state within Iraq's new federal structure, functioning autonomously from central government. What is likely to happen in practice is that Iraq will be divided into three states: the Kurdish state that already exists in the north, a Shia state in the south that is currently in the making, and a Sunni state that will come into existence in reaction to the other federal blocs. This is a recipe for disaster, and if the current constitutional framework remains in place long enough for these formations to come into existence, then the country will almost certainly split apart. Another problem with the federal model is that it provides central government with such little power that it will be almost toothless before the states. Almost every federal constitution in the world establishes a list of powers that are exclusively exercised by the central government. Another list is drawn defining the powers that are to be exercised exclusively by the states. Areas of joint authority between the central government and the states are also clearly demarcated. While Iraq has adopted this model, the most significant difference is that during negotiations the list of powers allocated to the central government was made remarkably short. Numerous complications are likely to emerge as a result. For instance, the list does not state that the central government is responsible for aviation. In practice this will mean that any airline company wishing to obtain permission to fly over Iraq will have to contact over a dozen state governments. It is also unclear whether the central parliament will be able to pass legislation -- affecting criminal law for example -- in the whole of the country, or even whether it has the power to levy taxes. And in order to ensure that no subsequent government or parliament changes its mind about the structure of the state, the amendment procedures that the constitution adopts are so stringent that they will be almost impossible to meet. Despite its flaws, the question of whether or not the constitution will lead to the breakdown of the Iraqi state will depend in large part on the outcome of the parliamentary and local elections that are due to take place in December 2005. The elections will determine the makeup of parliament -- and therefore the government -- for the next four years, and will also determine who will control the regions. At this stage, many observers are betting on the return of Iyad Allawi as prime minister, and that his party will gain considerably in the parliamentary elections. Despite Allawi's many obvious flaws, the advantage that he presents when compared to the current government is that he is not a sectarian, and that he does not have a militia. For these reasons, he is likely to pick up many votes from all of those who have seen for themselves what a sectarian government has done for the country in the past year. On the other hand, he will have to deal with whoever comes to power in the regions, and in the south it is anyone's guess whether nationalist or sectarian forces will obtain control. Even though the mechanisms of government and federalism have been established by the new constitution, the dynamics of the new Iraqi state are yet to be determined.
