Several governments and organizations in the world are attempting to assuage the Middle-East crisis. The disintegration of Libya, the destruction of Syria and the rise of ISIS combined with internal identity conflicts as well as an often incorrect and injurious perception of culture and history from outside the region, have made peace and stability farther from reach.
Many are of the belief (perhaps correctly) that an institutional structure could mitigate the current crisis. Having joint mechanisms to solve common problems of extremism and resource depletion would be far more helpful than isolated efforts. Regional integration by way of a formal institution would be indicative of political will to solve current problems and instill confidence in the eyes of the international community (which would help attract foreign investment) and the people (which would decrease resentment). An institutional framework between countries can only take shape when all parties involved have the capacity to engage in such a framework. Simply put, in the Middle-East a co-operative framework including Iraq cannot occur in the absence of Iraq’s capacity to be part of the framework.
It is important to understand Iraq’s constitutional history to understand it’s sovereign position currently. Iraq’s new constitution was drafted in 2005, which altered Iraq from a “constitutional hereditary monarchy with a representative Government” to an “Islamic democracy”. Another noteworthy difference (among many) is that while Arabic was the official language of the country according to the older constitution, it is now Arabic and Kurdish, thereby establishing Erbil as a stronger entity than it was.
Imagine a country that is used to a monarchic system of governance, is thrust into war, civil strife and then violent extremism. In the backdrop of this, a new constitution emerges which is based on Western concepts of justice and governance. How would the new government be able to cope? It is impossible for the new officials of this new version of Iraq to quickly adapt into a homogenized international system of governance. Until state-building occurs inside of Iraq which stems from Iraq itself (with the aid of the international community), an institutional structure and stability in the region would be difficult. Even though the 79% of the Iraqi population voted for the new constitution, it is difficult to ascertain whether the voting was done in an informed manner. In the turmoil of war and unrest, it is difficult for a people to take rational decisions. Even in the absence of conflict, the common man would rely on popular opinion and conjecture, instead of reading several hundred articles of a constitution.
Human rights in the West developed after immense conflict, sacrifices and loss. The birth of democracy is a process and good governance is always a work in progress. The role of a country’s constitution is extremely relevant to understand its Statehood because a constitution is a political and social mirror of how a state and its citizens are connected and how this further connects with systems outside of it.
Currently, Iraq is a physical State but it needs to emerge into a ‘conceptual’ State. What is Iraq? What is her identity? What is her system of governance? Despite the massive investment into the Iraqi state-building process, the future of the country remains uncertain. Iraq has had a rich past and strong history, nothwithstanding the vast reserves of oil and unique marshlands. To let her slip away to undesirable hostile elements (both internal and external) would be lamentable, not just for Iraqis but also for the world. One way to bolster state-building in Iraq could be a constitutional review to examine whether there are elements that are completely incompatible with the Iraqi social and political culture. This should be a process involving Iraqis at multiple levels with the aid of the international community committed to state-building in Iraq.
There have been consistent talks of amending the constitution under Article 142 (which lays down procedure for amendment), but so far no concrete steps have been taken in that direction. It is submitted that before an amendment is discussed:
1. Iraqi and other international constitutional law experts should undertake a thorough examination of the current constitution. An element of this study could be a comparative analysis of the older constitution with the newer one outlining the areas of the biggest differences and their legal ramifications.
2. Once issues are identified, national and state-level policy makers could come together (again, with international support and aid) to deliberate on the problem areas. It is imperative that representatives from the Federal government in Baghdad and Kurdistan regional government are present in these negotiations, to bridge the ideological gap.
This could be a small, parallel step in Iraq’s state-building process. Currently, there are gaps between political parties, ethnicities and classes coupled with corruption and inefficiency. Further, because Iraq is a new democracy, policy makers need more time to figure out internal negotiations. Again, this could be a good place for the international community and other governments (including from the Levant) to help Iraq facilitate its own process. Until this is done, it will be difficult to have joint concrete regional actions.
According to Iraqi constitutional scholar, Mr Zaid Al-Ali, Iraq’s 2005 constitution was designed not with good governance in mind, “but based on a desire to allow Iraq’s “ethno-sectarian communities” to protect themselves from each other”. Until this remains true, no progress in governance can come about, which in turn will make tackling ISIS more difficult, push more people into poverty and resentment, thereby making the current crisis worse – for Iraq, for the Middle-East and for the world.