Iraq’s Constitutional Process
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MARGARET WARNER: This morning’s headlines in Baghdad said it all: “Iraqis live a long day waiting for the birth of the constitution.” For at the end of the day yesterday, there was no constitution. Last night, just minutes before a midnight deadline, Iraq’s parliament voted to give negotiators another seven days to come up with a draft document.
SPOKESPERSON (Translated): We have reached agreements on many topics. Some matters are still pending. Despite all efforts, we have not been able to reach agreements that please everyone.
MARGARET WARNER: Among the biggest stumbling blocks: The issue of federalism and exactly how much power the central government will have. The Kurds want the constitution to give them the right to secede later, if they choose. Another issue: The role of Islam: Shiite clerics want Islamic law to govern many matters, but Sunni Muslims and Kurds fear that would undermine personal freedoms, particularly for women. Also at issue: Control of Iraq’s vast oil resources. Late yesterday, after the deadline passed, Secretary of State Condoleezza Rice tried to put a good face on the disappointing development.
CONDOLEEZZA RICE: We are witnessing democracy at work in Iraq. The new constitution will be the most important document in the history of the new Iraq. We are confident that they will complete this process and continue on the path toward elections for a permanent government at the end of the year.
MARGARET WARNER: But today, on the streets of Baghdad, ordinary Iraqis expressed concerns.
SPOKESMAN (Translated): Let them postpone their approval on the constitution for one or two weeks, but we hope the national assembly at last will find a solution. If they can’t, let them be frank with us.
SPOKESMAN (Translated): There was nothing new that justifies such postponement. The issues which remained unsolved and pending are not new. And if they can solve these problems in a week, it is all right. But I don’t think that the Iraqi leaders are able to solve such issues in a week.
MARGARET WARNER: The date for a nationwide referendum on the constitution in October, and for new elections in December, remain unchanged — for now.
MARGARET WARNER: And now we get one insider’s look at the behind-the-scenes bargaining over the constitution, and why it hasn’t succeeded so far. Paul Williams is a former State Department lawyer who now heads The Public International Law and Policy Group, a nonprofit that provides legal and policy assistance to governments in transition. He just returned from a month in Iraq, where he was advising the chairman of the constitution writing committee. And Mr. Williams, welcome.
PAUL WILLIAMS: Thank you.
MARGARET WARNER: From where you sat, from what you observed while you were there, why is it proving so hard to get the compromises they need to get a constitution done?
PAUL WILLIAMS: Well, one reason why it’s so difficult to build a constitution in Iraq is that the political coalitions keep changing and the dynamics on the ground are very fluid. For instance, when I first arrived in early July, the Shia and the Kurd had reached consensus on a number of issues such as federalism, and they had begun to moderate their positions. The Sunni were then brought in and as could naturally be expected, they set forth some very stringent demands. This caused the Shia and the Kurd to in a sense reboot their negotiating positions and go back to their extreme positions.
MARGARET WARNER: So give me an example of where say the Shia upped the ante, once the Sunnis got into the process with their demands.
PAUL WILLIAMS: Yes. Well, the Shia and the Kurd had reached an agreement on federalism, which would allow the Kurdish population in northern Iraq to essentially keep all of its current rights and privileges. When the Sunni came in, they said, well, wait a second, federalism isn’t such a good idea; there are no other federal states in the region, let’s start over. And the Shia came back and said –.
MARGARET WARNER: So the Sunni demand was we don’t like this federal structure; we want a strong central government —
PAUL WILLIAMS: Yes, we want to have all the power in the central government like it used to be. The Shia then thought, well, maybe we should have two or three provinces together in the South called a Sumar region. Well, why two or three, maybe we should have six or seven, call it a federation of the Shia, and they thought that if they put this out there as a demand, it would cause the Sunni to compromise and they could go back to the original Federation for Kurdistan.
MARGARET WARNER: But instead, what, everyone got wedded to the more extreme positions?
PAUL WILLIAMS: Yeah, and this happens in most negotiations, and it’s something that we’ve seen increase in the last week, is once you put out sort of positional bargaining positions, your extreme position, then your constituents in particular here the constituents in southern Iraq thought, yeah, we like that idea of a Shia federation and it should be expanded to include all nine provinces.
MARGARET WARNER: So essentially they fall in love with their talking points?
PAUL WILLIAMS: Yes. They’ve done this on a number of issues and you’ve seen that in the past week they were down to two or three, but now that the constitution has fallen apart they’re listing off five or six issues.
MARGARET WARNER: Now, did a similar thing happen over say the role of Islam?
PAUL WILLIAMS: Yes. What happened here is the Shia began with the very appropriate position of, you know, we’re an Islamic country, we would like to respect Islam. It should have some role in fomenting or forming the designs for legislation, so long as it’s conditioned by human rights, democracy and international law. What has happened is the Kurds have been opposed to this, the Sunni have been opposed to this and now you find Islam as the primary source of legislation and a separate provision respecting the clerics, the Shia clerics.
MARGARET WARNER: As apart from the government.
PAUL WILLIAMS: Apart from the government, yes. And you’re going to see the Sunni wanting to have their clerics respected and the Kurds wanting to have their religious leaders respected and it’s going to become a slippery slope.
MARGARET WARNER: Now, I know you were often in the room during these bargaining sessions in your advisory role. What was it like, I mean, when the Sunni, Shia and Kurdish representatives sat down, do they really exchange ideas; do they really talk to each other?
PAUL WILLIAMS: Well, there’s a very interesting and I would say very positive dynamic here. And that is that in the room, the members of the committee, their engineers, their physicists, their doctors, there’s not a lot of lawyers, which is probably a good thing.
MARGARET WARNER: Probably a good thing, yeah.
PAUL WILLIAMS: They know their interests. They’re very good at articulating their interests. There’s the finger waving, the slapping of the desk, but when they break for coffee, it’s back to mutual trust, mutual respect, how’s family; that’s what’s going to make this constitutional process successful because there’s a very strong tradition of not compromise but consensus building. And if they can find a way of doing that while still saving face, they will have a successful constitution.
MARGARET WARNER: Now, you left about two weeks ago. What was the American role at least up till that point? What did you observe, how active? What we’ve heard is it wasn’t much of a role.
PAUL WILLIAMS: Well, this was what was very surprising. There are two elements of that. The first is there was a very light American presence. They were doing their political reporting but there wasn’t a lot of American engagement in the process, which is fine to the point that you don’t want the Americans writing the constitution. But privately, a number of Iraqis came to me and they said, “Where are the Americans?” You know, we need good offices, we need mediation; we need somebody to help us, you know, propose some language. Don’t write it, we’ll write it. But giving us some ideas, being an honest broker, it’s what’s necessary in this type of process.
MARGARET WARNER: But now the reports are that the new ambassador Zalmay Khalilzhad is doing more of that now.
PAUL WILLIAMS: Yes.
MARGARET WARNER: What do you hear? I assume you’re still talking to folks back there.
PAUL WILLIAMS: Yes. Our Iraqi interlocutors, our clients so to speak are very keen on the new approach of the Americans; they’re also a little worried. They’re very positive that the Americans have reengaged, that they’re proposing suggestions and that their basically bringing the parties together. They’re a little concerned that this won’t last; that the moment they have a constitution, there will be political victory declared, political military drawdown. This reengagement is not for three to four weeks, it has to be for the next six to nine months.
MARGARET WARNER: Did you sense again when you were in these meetings or maybe speaking to the men you were advising that, following up on what you said earlier about compromise and what Condi Rice said about well this is democracy at work, that they are approaching this as we all have this shared vision of building this new unified Iraq and we’re ready, we’re all working toward the same thing. Or was it more that each ethnic group is trying to just get the most they can, because they somehow see it as a zero sum game?
PAUL WILLIAMS: They’re about halfway there. What they’re doing is they’re very good at articulating their interests and identifying other parties that have similar interests in building momentary coalitions. This is the first step in a process, but not a sufficient step. For instance, the Shia and the Kurds came together on federalism, but then the Kurds split off and joined the Sunni when it comes to Islam. And they keep moving the coalitions, and it’s a first step, but they now have to build the consensus, make the political trade-offs.
MARGARET WARNER: But I mean there’s a difference between a coalition where you say, okay, we have a shared interest here, versus a compromise where you say I’m willing to actually dial back on what I want if he’ll dial back on what he wants so we can get to this common goal.
PAUL WILLIAMS: They’re not dialing back yet. They’re still forming their coalitions; they haven’t started to dial back. And I think that’s where the Americans are going to provide a very crucial role, is pushing them back from their positions.
MARGARET WARNER: Now, what could you see in these meetings in terms of the impact that the insurgency outside the room was having on the talks inside? Was it focusing the mind, making them realize, my gosh, we’ve got to get this done, or was it having a damaging effect?
PAUL WILLIAMS: The insurgents were clearly trying to have an impact; they have assassinated two members, two Sunni members of the committee, they had attacked the outskirts of the green zone during the negotiations. And there’s an interesting dynamic here that the Americans and others are sort of rushing the process so that there will be Sunni political buy-in, which will take the win out of the insurgency. The real danger is, if you rush it too much you might have the Kurds and Shia go it alone without the Sunni political representatives and then you’ll in a sense rejuvenate the insurgency, rather than take out the wind.
MARGARET WARNER: Which we saw, in fact, the headlines saying just that, that Shia and Kurds were threatening to do that. But, I mean, did you get the feeling that the men and few women in the room were there and able to sort of deal and operate on their own, or were they kind of looking over their shoulder at their constituents in an unhealthy way?
PAUL WILLIAMS: They had a very healthy long-term perspective and one I think the U.S. Government might want to adopt. It’s not going to be the constitution a week from now or two weeks from now that dampens the insurgency movement. It’s going to be standing up an effective Iraqi state structure because when I talked to them about the insurgency, they said yes, a constitution is necessary, but not sufficient to dampen an insurgency six to nine months from now; when we have an effective state, that’s when we’re going to dampen the insurgency.
MARGARET WARNER: And finally, we talked about what impact the deadline had on the negotiations as you watched them. If you take that and then you realize they didn’t meet the deadline, do you have any reason, just one man’s perspective I know, but to think that extending it by one week will do the trick?
PAUL WILLIAMS: Yes, because what they’re going to do is they’re going to shift their objective. They’re no longer going to try to write a legalistic constitution; they’re going to try to come to a political compact, a political meeting of the minds at the highest level, general principles, general framework, have a referendum, have elections, sort out the details in the spring.
MARGARET WARNER: Fill in the blanks later.
PAUL WILLIAMS: Yes.
MARGARET WARNER: Paul Williams, thanks very much.
PAUL WILLIAMS: Thank you, Margaret.