The Draft Law for the Formation of Regions: A Recipe for Permanent Instability in Iraq?
By Reidar Visser (http://historiae.org)
27 September 2006
The first reading of the new Iraqi draft law for the formation of federal regions took place in the Iraqi parliament on 26 September. Several features of this legislative project give reasons to worry about the prospect for national reconciliation and political stability in Iraq.
It could have been much worse. Leading political parties eager to carve out their own fiefdoms could have been tempted into watering down the Iraqi constitution to the point where they themselves could dictate the exact demarcation of federal regions. Kurdish and Shiite lawmakers could have made an attempt at bypassing the Sunni Arabs altogether, by pressing ahead with the law and thereby create a federal system before the issue of federalism had been revisited through the one-off constitutional revision process stipulated in the Iraqi charter adopted in October 2005. None of this happened. The proposed law to a large extent preserves the unique features of the Iraqi constitution that give the electorate and regional politicians – not Baghdad elites – the initiative in the creation of new regional entities. And it was decided that before the law was read, the long-awaited committee to revise the constitution should be formed; this started on 25 September and was completed with the naming of its members on the next day. Additionally, in a backroom deal between leading Kurdish, Shiite and Sunni political leaders it has been agreed that the committee shall have one year to complete its work, and that any legislation passed on the formation of regions must wait 18 months before implementation.
Despite these limited but significant moves towards an atmosphere of reconciliation, several problems concerning the implementation of federalism in Iraq remain. The most hazardous aspects of the new law are those that relate to the overall stability of the new federal system. The law opens up for a system that can be changed in perpetuity: not only can new regions be formed on the basis of existing governorates, but regions can join with each other and governorates can be annexed to regions (article 1; the two latter points are options that were not explicitly specified in the October 2005 constitution, moreover they have been designed mainly as tools for political elites because it is the “regional” councils only – not the people – that can activate them, article 2.3–4). Crucially, in the case of a failed attempt at establishing a region (or super-region), the required lapse of time before another attempt can be made is alarmingly short: one year, and then a new referendum can be held (article 9; other countries with similar arrangements such as Spain have used five-years moratoriums as a stabilisation element). These processes can apparently go on ad infinitum. (The question of separatism from existing or newly formed entities is not explicitly dealt with.) In its present form the law thus threatens to form a constant distraction from the process of establishing security and basic services, and with its acute need for political stability, it is remarkable that Iraq is not aiming for a more conservative and restrictive arrangement.
But the new law cannot be studied in complete isolation. It must be considered in conjunction with the formation of the committee charged with revising the constitution, as well as the political agreement on postponement of implementation of federalism until 18 months after any law has been adopted (as of today this provision is nowhere to be seen in the draft law itself). During the revision, those who are sceptic about federalism may wish to revisit the very principle of federalism south of Kurdistan, and theoretically they could make the entire law on the implementation of federalism superfluous. Periodically, there have been signs that at least some Shiite politicians within the United Iraqi Alliance, primarily Sadrists but also some Fadila, Daawa and independent representatives, are prepared to compromise with the Sunnis in a nationalist project of restricting federalism (for instance by size limits for new regions) or limiting it to the Kurdish areas only.
However, based on the composition of the pro-Shiite United Iraqi Alliance (UIA) contingent to the newly formed committee of 27 deputies, it seems unlikely that this forum will be transformed into an avenue for radical changes in the federalism question. The most coherent grouping among the 12 UIA members appointed to the committee is made up of individuals close to the Supreme Council for the Islamic Revolution in Iraq (SCIRI) and its sympathisers. They include prominent figures like Humam Hammudi and Jalal al-Din al-Saghir, in addition to Badr member Abd al-Karim al-Naqib from Babel province, and known SCIRI sympathisers like Abbas al-Bayati (a Turkmen) – all of whom can be expected to press for minimal interference with SCIRI’s pet project of forming a nine-province Shiite federal entity south of Baghdad. Additionally, some non-SCIRI representatives who in the past have voiced scepticism towards federalism now seem more supportive of SCIRI on this issue (or at least on the idea of having detailed legislation on federalism); they include Sami al-Askari and possibly members of the “Iraq” branch of the Daawa party. The latter, a splinter faction of the Daawa, is represented on the committee by Ali al-Allaq of Babel, who accompanied Jawad al-Maliki on his recent visit to Iran, and Abd al-Karim al-Anizi – who only some years ago spoke fervently against any application of federalism in Iraq.
No more than two UIA members of the committee have any association, directly or indirectly, with the project of creating a small-scale federal unit in the far south of Iraq limited to Basra, Dhi Qar and Maysan only: Qasim Dawud and Ammar Tuma, both with links to Nasiriyya – as independent and Fadila representatives respectively. At any rate none of them can be expected to sway the committee away from federalism. In fact, the only UIA committee member who in the recent debate has outspokenly challenged SCIRI’s ideas about rapid passage of the federalism bill is Hasan al-Shammari of the Fadila party. The Sadrists are notably absent in the committee; ex-Daawa member Sami al-Askari is the only committee member who in the past has had ties with them and his current position is not entirely clear. The omission of Basra and Maysan representatives is noteworthy as well, especially given the existence in these areas of a Shiite-led federalist project that competes with that of SCIRI. There are no UIA voices from the Tigris valley, where Iraqi nationalist sentiment traditionally has been strong among the Shiites.
As for the new timeline agreed on for the work of the committee (and for the implementation of any law on federalism), it hardly seems helpful from a governance perspective. A delay of 18 months does not mean that the project of federal subdivisions within the Arab-majority areas is in any way shelved or forgotten. If the sectarian violence continues, the advocates of federalism are likely to prosper – whereas the alternative project of restoring a unitary form of government south of Kurdistan will not benefit from the breathing space that a longer moratorium on federalism could have allowed for, or the potential synergies of a re-emergence of Iraqi nationalist sentiment and an expedited withdrawal of foreign troops. In fact, the extension of the deadline for the work of the constitutional committee to 12 months represents a riddle in itself. This seems distinctly unconstitutional (the constitution specifies 4 months as the committee’s mandated lifetime) and probably should have required a special majority for adoption as such. And it is unclear what Iraqi legislators are supposed to do with this vast amount of time. (Even 2007 holiday arrangements have been quoted as justification!) There is the danger that if they try to put everything under the sun into this package, it will founder simply due to overload: there is little use in a splendid parliamentary compromise in Baghdad if it gets struck down in a referendum in three Iraqi governorates. Key provisions like a guarantee of an equitable distribution of oil resources between the governorates should be possible to adopt within a matter of months – and would be compatible with any particular federalism scenario.
It is expected that the Iraqi parliament will vote on the new federalism bill in early October.
Note added 28 September partly on the basis of reader feedback – for which many thanks.
1) In many ways, the most vulnerable under this system are the areas that are sceptical towards big federal units and do not have a small-scale regionalism shield to defend themselves against annexations by politicians aiming for larger entities. Where there are several competing regionalist visions, these will reach the stage of articulation in the governorate-level “poll” foreshadowed in the new law. However, where there are two competing currents only (for instance large-scale federalism and Iraqi nationalism, as the case may well be in places like Wasit province) annexation of an unwilling area into a larger federal unit apparently becomes theoretically possible, since a referendum can be called on the basis of a petition from a mere tenth of the (governorate) electorate, and the subsequent counting of referendum votes and the requirement for a simple majority appears to be on the macro “regional” level with no explicit reference to the governorate. This echoes the “Almeria syndrome” of the Spanish federalisation process in the early 1980s: after considerable political machinations this area became incorporated in the new autonomous region of Andalusia despite having failed to provide the absolute (local-level) majority that was required under the original legal arrangements. (It should be added that the Spanish requirements for initiating the process towards a referendum were far stricter, with demands for support of three-quarters of the municipal councils involved – a criterion that should reduce the danger of outsider manipulations somewhat.)
Two other omissions in the law are conspicuous. Firstly, while there is a detailed (and quite hasty) procedure for arranging a referendum once it has been called, there appears to be no definition of the start of the race. Does this means that once the law has become promulgated, specification of regional entities eligible for a referendum will be on a first come, first served basis? That certainly could make for some nasty jostling in those areas where enormous resources are at stake, like Basra. Secondly, there appears to be no requirement for territorial contiguity. Much like the pan-Arab federations of earlier periods, regions can be formed without being geographically linked to each other. Again, this plays into the hands of those who wish to build big federal entities: it opens up for “encirclement” strategies in the case of obstinate areas that wish to retain their local autonomy or their attachment to the Iraqi nationalist vision. The sponsors of the new bill will no doubt maintain that this proves that Iraq can eventually become unified again “from below”, but one wonders whether the Iraqi people might be better served if their politicians could find a sturdier and more stable framework for reshaping the Iraqi state.
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