With counting still underway, delayed in part by a massive sandstorm, early returns point toward sufficient numbers of Iraqi voters having cast ballots in favor of Iraq’s draft permanent constitution to assure a majority of votes in favor of its passage.  Equally significant under the two-pronged mechanism for passage, it appears it might be the case that insufficient numbers have cast “no” votes in Sunni-dominated provinces, or governorates, to secure a veto. 

Regardless of the final results of the Oct. 15 vote, new elections are to be held by Dec. 15, 2005.  If the constitution is accepted, a permanent government is to be voted in, to take office by Dec. 31, 2005, and serve under the new constitution.  The focal point of the permanent government would a Council of Representatives, or parliament, which in turn would select a president, who formally assigns a prime minister (the majority party’s candidate), both of whom are to be members of the Council of Representatives. 

If the constitution were rejected, the Law of Administration for the State of Iraq for The Transitional Period (TAL), Iraq’s interim constitution, would remain in effect; the interim National Assembly that drafted the proposed constitution would be dissolved; and the Dec. 15 elections would be conducted for the purpose of selecting a new interim National Assembly to make another effort at drafting a permanent constitution.

The TAL provides the following guidance for assessing the Oct. 15 vote:

The general referendum will be successful and the draft constitution ratified if a majority of the voters in Iraq approve and if two-thirds of the voters in three or more governorates do not reject it.

TAL, Article 61 (C), http://www.ieciraq.org/img/PDF/CPA/TAL-English.pdf

Approval of the proposed permanent constitution therefore hinges on a two-pronged standard, combining the concept of Iraq as a single nation with the concept of Iraq as a federal entity.  On the one hand, passage requires a simple majority of “yes” votes across the entire nation (expatriates are not permitted to vote in the referendum).  At the same time, a minimum of three Iraqi provinces, or governorates, may join together to veto the proposed constitution.  Even if a majority of voters vote “yes,” the constitution still can fail if within each of just three governorates a two-thirds supermajority of voters votes “no.”

There had been speculation Sunnis might oppose the constitution in strong numbers over concerns that oil-poor, Sunni-dominated regions might suffer under the federal system envisioned by the draft constitution.  While Sunnis held more power under Saddam Hussein, under a new democratic federal system they would suffer the twin misfortunes of being in the minority and also having large numbers living in regions lacking rich oil deposits. 

Fears of Sunni “no” votes prompted a flurry of activity in the time leading up to the referendum.

An attempt by the interim National Assembly to provide an “interpretive ruling” apparently seeking to alter how votes were counted in order to favor approval was reversed under pressure from Sunnis, UN officials, and the United States.

Last-minute amendments to the draft, aimed at appeasing Sunnis, would provide an additional mechanism for amending the constitution in the months following new elections, in the event the proposed constitution, now including the amendments, is adopted.

Attempt to “stack the deck” reversed

An Oct. 3, 2005, an attempt by the interim National Assembly to “stack the deck” in favor of approval, by defining the word “voters” two different ways in the same sentence (the sentence set out above in the block quote) was reversed Oct. 5, 2005, after objections by Iraqi Sunnis, the United States, and UN officials. 

The interim National Assembly briefly toyed with the notion of counting just participating voters to determine whether a majority of voters nationwide approved the draft constitution, but to count all registered voters to determine if two-thirds voted “no” within a particular governorate. 

That is, under such a system, regardless of voter turnout, only half of the voters showing up to vote would need to vote “yes” to approve the constitution, unless there were sufficient “no” votes in three governorates.  At the same time, under the revised method of counting “no” votes, crossing the two-thirds “no” threshold in a particular governorate would have been impossible if less than two-thirds showed up to vote, since the interim National Assembly wanted to require that “no” votes amount to two-thirds of all registered voters.  And even if more than two-thirds showed up to vote, unless turnout approached 100%, a much higher threshold than two-thirds of participating voters would have been needed to if the number of “no” votes would have reached two-thirds of all registered voters.

UN officials protested that such a scheme would not have met international standards, but even under Iraqi standards the move would have been problematic.  In addition to the inconsistency inherent in defining the same word two different ways in the same sentence, it is unclear the interim National Assembly would have had the authority to issue an “interpretive ruling” in the first place, given that such authority was lacking under the TAL.  The TAL did grant Iraq’s Federal Supreme Court, in Article 44(C), the power to interpret the TAL; that is, to determine whether a particular law should be struck down for being inconsistent with the terms of the TAL.  Had the interim National Assembly persisted in its effort to alter the vote count, the Federal Supreme Court therefore should have had the cognizable authority to nullify the assembly’s action.

Last minute amendments

While the TAL originally envisioned the draft permanent constitution being written by Aug. 15, 2005, it instead was submitted by the deadline but then amended.  The interim National Assembly gave itself until Aug. 22, 2005, to consider the matter further, making changes in the process, and then after Aug. 22, 2005, made additional changes, apparently by amendment.

The TAL does simply say in Article 61 that the INA was to “write the draft,” and a draft was submitted by the deadline.  However, the text of the TAL does not account for post-deadline changes, and with no formal vote to confirm the draft, an important tool of democracy was curiously absent.

On Oct. 12, 2005, yet additional amendments were made.  These changes were not voted upon.  They simply were declared by the speaker, in the presence of 157 of the INA’s 275 members, and apparently had been worked out by political parties.

Additional amendment process

One crux of the last-minute amendments was to change the way in way the permanent constitution, if approved, can be amended.  The new provisions led one major Sunni party, the Iraqi Islamic Party, to call for a “yes” vote.

As the draft constitution previously was framed, to be successful amendments are required to be proposed by the Iraqi president and cabinet, approved by a two-thirds vote of the Council of Representatives, confirmed by a popular referendum, and endorsed yet again by the president.  However, provisions in Chapter One of the draft permanent constitution must endure for at least two parliamentary cycles before being amended.  (Ironically, this Chapter One was one of the provisions amended on Oct. 12.  Of course, at that time it was the draft being amended, not an approved constitution.)  Chapter One sets out various provisions entitled “Basic Principles” such as Iraq’s status as a democratic, federal, parliamentary, multi-ethnic republic; official languages; and general restrictions on military activities.

One of the last-minute amendments adopted to appease Sunnis envisions a legislative committee to consider amendments shortly after the new government is installed.  It calls for the Council of Representatives, newly elected by Dec. 15, to set up a committee within four months with the mission of considering constitutional amendments. 

Amendments coming out of the committee would be subject to approval by the entire Council of Representatives, and then be submitted to yet another popular referendum within two months.  It therefore offers an alternative track for constitutional amendments that streamlines somewhat the process for initial amendments, and originates them in the Council of Representatives.  It bears noting that elections for the Council of Representatives conceivably could receive a more diverse turnout of voters than in the previous election, such as a higher turnout of Sunni voters.  However, Sunnis still represent only roughly one-third of the Iraqi population, and it is unclear how easily they could push for amendments even with more intensive involvement with the political process.

National unity, de-Ba’athification prosecutions

Among the additional twelfth hour amendments are changes providing language apparently felt to express Iraq’s national unity more strongly, and an additional provision adding to the checks and balances restraining criminal prosecutions for past involvement with the Ba’ath Party.

Conclusion

It is predicted that the vote count for Iraq’s constitutional referendum could take the rest of the week. Nonetheless, it appears the draft constitution will be approved, and it appears that Sunni participation in the Iraqi political process is increasing.  Formation of an indigenously created and ratified constitution is a cornerstone of democratic rule of law and self-determination.  Moreover, law and security go hand-in-hand, with each needing to contribute to the other. 

It will be important to observe how scrupulously Iraq’s new government respects rule of law. Just as important will be how vigorously and effectively the Iraqi government and its security forces can expand an indigenous capacity to quell violence, and establish and maintain peace and security.  The ability of the United States and its partners to turn over greater control of Iraq to the fledgling Iraqi government depends on both. 

At the same time, the Iraqi insurgency represents a cocktail of domestic and foreign elements influenced by diverse factors, perhaps only some of which will be altered by developments with the Iraqi constitution.  U.S. Secretary of Defense Donald Rumsfeld’s prediction of a “long, hard slog” appears justified.  Yet forward movement on the constitution and the formation of a new government are important milestones which Iraqis can mark with a justifiable sense of Iraqi achievement, courage, and optimism.

Almost as important to establishing Iraqi rule of law will be the trial of former dictator Saddam Hussein, set to begin Oct. 19, 2005.  As in the battle against terrorism, Iraq will be called upon to demonstrate that, when confronting lawlessness and a blatant disregard for the sanctity of human life, the need to uphold and respect law as a force for right and wrong is paramount.

Sources and further reading:

“Background Note: Iraq,” U.S. State Department, August 2005, http://www.state.gov/r/pa/ei/bgn/6804.htm

BBC, audio news updates, accessible through http://www.bbc.co.uk/worldservice/

“Fact Sheet: Referendum 2005,” The Independent Electoral Commission of Iraq, http://www.ieciraq.org/final%20cand/Fact%20Sheet%
20-%20Referendum%202005%20-%20English.pdf

“Iraq constitution recieves last-minute boost,” Ireland Online, Oct. 13, 2005, http://breakingnews.iol.ie/news/story.asp?j=158987670&p=y58988376

“Iraq delays vote on draft constitution: Committee presents document to assembly just before deadline,” CNN, Aug. 22, 2005, http://www.cnn.com/2005/WORLD/meast/08/22/iraq.main/

“Iraq U-turn on charter vote rules,” BBC, Oct. 5, 2005, http://news.bbc.co.uk/1/hi/world/middle_east/4311690.stm

Law of Administration for the State of Iraq for The Transitional Period (TAL), http://www.ieciraq.org/img/PDF/CPA/TAL-English.pdf

Law on the Referendum of the Constitution, (Iraqi legislation) http://www.ieciraq.org/final%20cand/Referendum%20Law
%20as%20passed%20edited%2028-sept%20_E_.pdf

Alastair Macdonald, “Iraq assembly reverses vote rule after UN warning,” Reuters, Oct. 5, 2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=
2005-10-05T162624Z_01_DIT547323_RTRUKOC_0_US-IRAQ.xml

Neil MacDonald, “Iraq parliament reverses controversial ruling,” Financial Times, Oct. 5, 2005, http://news.ft.com/cms/s/3d41b4ec-35bf-11da-903d-00000e2511c8.html

Spokesman Sean McCormack, U.S. State Department Daily Press Briefing, Oct. 4, 2005, http://www.state.gov/r/pa/prs/dpb/2005/54284.htm

Spokesman Sean McCormack, U.S. State Department Daily Press Briefing, Oct. 5, 2005, http://www.state.gov/r/pa/prs/dpb/2005/54311.htm

Steve Negus, "Iraqi constitution heading for approval," Financial Times, Oct. 17, 2005, http://news.ft.com/cms/s/c1288044-3e32-11da-a2cb-00000e2511c8.html

Andrew Quinn, "Iraq locks down for constitutional vote," Reuters, Oct. 14, 2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=
2005-10-14T095211Z_01_SPI055701_RTRUKOC_0_US-IRAQ.xml

“Revised Articles in Iraq's Constitution,” AP, Oct. 12, 2005, http://www.newsday.com/news/nationworld/world/wire/sns-ap-iraq
-agreement-glance,0,7785423.story?coll=sns-ap-world-headlines

VOA, audio news updates, accessible through http://www.voanews.com/english/

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