The next stage in Iraq's political transition, the drafting and adoption of a permanent constitution, will be critical to the country's long-term stability. Iraqis face a dilemma: rush the constitutional process and meet the current deadline of 15 August 2005 to prevent the insurgents from scoring further political points, or encourage a process that is inclusive, transparent and participatory in an effort to increase popular buy-in of the final product. While there are downsides to delay, they are far outweighed by the dangers of a hurried job that could lead to either popular rejection of or popular resignation to a text toward which they feel little sense of ownership or pride.
The Transitional Administrative Law (TAL) of March 2004 dictates the pace and process of constitutional drafting and adoption. According to its terms, drafting must be completed no later than 15 August 2005 and the text put up for popular referendum by 15 October, with elections for a full-term assembly to follow by 15 December. If successful, this process may go a long way in drying up support for the insurgents. Conversely, failure to get the constitutional endeavour right risks increasing popular discontent and swelling the ranks of the insurgency.
The experience of other transitional societies is clear. Popular participation in and acceptance of the basic pillars of the new order are critical to its success and longevity. The creation of a foundational document that not only receives majority support in a nation-wide referendum but is based on popular input and consensus may well be the optimal way of whittling away support for the insurgents (whose hardcore elements would still need to be tackled militarily) and stabilising Iraq.
This cannot realistically be done within the extremely narrow timeframe of just over two months remaining before 15 August. Far better would be to accept up front that the deadline cannot be met and take advantage of the TAL's escape clause to extend it by six months, to 15 February 2006. This would allow the Transitional National Assembly (TNA), with the help of the United Nations and other organisations and governments with the requisite expertise and resources, to set up a realistic timetable for bringing in excluded sectors of the population (not only Sunni Arab leaders but also representatives of civil society), educating the public about the deliberations, and consulting widely among Iraqis on critical choices regarding their nation's political structure, identity and institutions. With persistent violence taking on an increasingly sectarian character, ensuring that the constitution is viewed as legitimate by all sectors of the population is a vital necessity.
A different approach in the name of rigid adherence to the TAL's deadline would risk playing into the insurgents' hands, condemning Iraq to more violence, and encouraging those elements that have sought, by their deliberately sectarian attacks, to plunge the country into an even deadlier civil war.
RECOMMENDATIONS
To Iraq's Transitional National Assembly (TNA):
1. Announce now an extension of the drafting deadline by six months, to 15 February 2006, to allow for public education and broad consultation.
2. Expand the drafting process by either:
(a) adding Iraqis who are not TNA members to the constitutional committee, making every effort to include groups that did not participate in the January 2005 elections -- especially Sunni Arabs, civil society activists and under-represented groups such as women and ethnic and religious minorities -- and allowing them to select their representatives; or, failing that,
(b) creating a commission to draw up the permanent constitution that incorporates the current committee and includes representatives of excluded communities and groups. This constitutional commission should make its decisions by consensus or, where impossible, by a two-thirds vote, and submit its draft text to the constitutional committee and full TNA for ratification or for referral back to the commission for amendment.
3. Set up a transparent drafting process in which the media have free access to the constitutional commission's proceedings and can report fully to the public.
4. Establish an agency that is charged with coordinating outreach through the media, public gatherings and thematic seminars, as well as collecting views from the public and forwarding them to the drafters.
5. Encourage civil society initiatives in support of the constitutional process, including public education and monitoring of the drafting process.
To the United States and Other Members of the International Community:
6. Refrain from policy statements endorsing a specific timetable and especially cease insisting on adherence to the 15 August 2005 deadline.
7. Channel all support of the constitutional process via the United Nations and approved non-governmental organisations.
To the United Nations Assistance Mission in Iraq:
8. Assist the TNA, the constitutional committee and, if created, the constitutional commission in setting up a workable eight-month timetable with a series of interim deadlines that reflect key benchmarks in the drafting process concerning public outreach, consultation and review.
9. Continue to offer technical advice to the TNA and constitution drafters both on matters of process and on issues requiring comparative expertise or consistency with international standards.
