Twenty years ago this week, Iraqis braved bombings and queued outside polling stations to cast their votes for a new constitution. Their purple-stained fingers – indelible ink indicating who had voted in a bid to prevent fraud – were raised in hope and defiance.
At the time, they were told the document – which was born out of fear, foreign occupation and haste – would anchor a new, democratic and stable Iraq after the overthrow of Saddam Hussein’s decades-old dictatorship by the US-led invasion in 2003.
Today, the constitution stands as the country’s legal foundation but also a source of persistent political tension. For many Iraqis, it promises rights on paper but leaves too many questions unanswered in practice. Critics say it has become one of the country's deepest fault lines and a means for political parties to cling to power.
"The constitution is a cover they [political parties] use to extract more privileges for themselves and they adapt it whenever they want,” Muhi Ansari, the Head of Al Rasheed Centre for Development, told a panel on Saturday to mark a century since Iraq’s first constitution.
The first time Mr Ansari, head of the Iraqi Home Movement, voted in an election was in 2010. Then, the cross-sectarian Al Iraqiya Coalition came first, winning 91 seats, followed by the State of Law, led by former prime minster Nouri Al Maliki, with 89.
Al Iraqiya Coalition denied him the chance to form a government but a controversial decision by the Supreme Federal Court helped Mr Al Maliki secure a second term in office. Its ruling stipulated that the largest bloc formed in parliament, not necessarily the winning one, would form the government.
“That ruling destroyed the nascent democracy,” Mr Ansari said. He has “no confidence” in Iraq's current political parties to amend the constitution. For him, the “constitutional structures are incomplete and capriciousness is the ruling power”.
Although it promotes principles such as federalism, separation of powers, political pluralism, and guarantees of rights and freedom, Husam Al Haj, head of the Baghdad Centre for Middle East Studies, believes the constitution still has "gaps and the political parties deal selectively, taking part of it and blocking most of it”.
Over the past two decades, Iraqi political parties have “invented a ‘parallel constitution’”, Mr Al Haj said, referring to political customs established by the various political forces in Iraq to keep the elite in power.
Iraqi Home Movement
That “parallel constitution possessing the power of law, and the current system is a product of it, not a product of the constitution that seeks to return the institution to its legal footing,” he told the panel organised by Iraq Democracy Observatory.
The 20th anniversary of the constitutional referendum falls on Wednesday. This year also marks the centenary of Iraq’s first constitution, which accompanied the establishment of the state.
That document, known as the Basic Law, created a constitutional monarchy with a bicameral parliament.
Then came the 1958 interim constitution after the military coup led by Brig Adb Al Karim Qasim and Col Abdul Salam Arif. It carried slogans of sovereignty and social justice but ultimately failed to transform into a stable institutional framework, mainly because it was dominated by the spirit of revolution rather than the spirit of constitutional rights.
Temporary constitutions followed in 1964, 1968, and 1970, reflecting the country's shift towards an ideological state, where pluralism was absent and power was effectively in the hands of a single party, making the constitutional text a tool for centralisation.
The permanent constitution of 2005 was a turning point, being the first to be approved by the Iraqi population in a general referendum during a difficult transition from authoritarianism to consensual democracy.
'Very difficult period'
The drafting of the 2005 constitution was intertwined with extraordinary circumstances. Iraq’s Transitional National Assembly worked under tight deadlines set by the US-drafted Transitional Administrative Law and amid a security environment defined by insurgency, sectarian killings and deep mistrust between Sunnis, Shiites and Kurds.
The Transitional National Assembly, elected in January 2005 – most Sunni Arabs boycotted the election – had a remit of producing a permanent charter within months.
US officials, including then-ambassador Zalmay Khalilzad, played a key mediating role, pressing for compromise to meet Washington’s deadlines.
“It was a very difficult period,” Mr Khalilzad told The National. “The election had been boycotted by a significant part of the Iraqi community, the Sunni Arabs, there was a lot of violence taking place and the country was polarised."
There were fears of rising sectarianism and division across the country and the “judgment was that there was a need for a national reconciliation, and the constitution could be a national compact” he added. “It was a challenge, a significant challenge."
The US role, Mr Khalilzad said, was to push for a broad agreement “in terms of participation in drafting and in terms of the support for it”. He at times found himself “shuttling between different communities to push for everybody being included”.
Within months, political rivals engaged in intense discussions to reach a compromise, producing a text that, although ambitious and ambiguous, designed a patchwork of promises to satisfy everyone and no one.
More differences arose during the process between Shiites, Sunnis and Kurds. Top among them were federalism, oil and control of resources between Baghdad and the regions, religion and law, personal statues, minority rights and territories claimed by the Kurds, known as disputed lands. Issues that to this day remain a point of contention that undermine the very notion of federalism the constitution had enshrined.
The legislation legally recognised Kurdish autonomy within the framework of an Iraqi federal state. In the past 20 years, many of the disputes between the authorities in Baghdad and Erbil, capital of Iraq's semi-autonomous Kurdish region, are rooted in the constitution, with each side accusing the other of breaching the terms.
“Each party focused on its rights in this constitution more than its obligation,” prominent Shiite cleric Ammar Al Hakim said at last week's Middle East Research Institute panel.
“You find each component focusing on specific articles and discussing them without paying attention to other articles that might be an obligation towards the other partner,” said Mr Al Hakim, whose late father Abdul Aziz Al Hakim had a senior role in drafting the constitution.
Over the past two decades, some of the issues have proven difficult to enforce as the constitution stipulates and remain pending, such as the federal oil and gas law. Others have been settled but only after lengthy discussions and through compromise.
'Foreign actor'
In recent years, a growing number of Iraqi politicians, including some who had fought for it, have openly criticised the constitution, blaming it for many of the country’s chronic political and economic problems.
The constitution stipulates that a committee needs to be formed by parliament after the referendum to consider amendments to its text. It sets the mechanism that eventually requires approval by both parliament and a national referendum. That committee was indeed established but recommendations were shelved due to deep disagreements.
In October 2019, public frustration boiled over when thousands of young Iraqis took to the streets demanding an end to the political order, and amending the constitution was one of their demands. Then, a committee was also formed to look into amending the constitution in order to contain the protests but that never materialised.
“We are for a new political and social contract,” Mr Al Hakim said. “This requires reviewing the constitution and ensuring that its provisions are consistent with the developments that Iraq has witnessed over the past 20 years." Any amendments, he stressed, should be “negotiated through consensus”.
That suggestion did not resonate with Baghdad businessman Ali Hameed. “How can the one who caused the problem and benefited from it bring about a solution?” the 38-year-old said.
“First, young people need to rethink their approach to elections, both in terms of voting and running, to get a seat at the political table."
After that, he said, the push for change can start but it will “likely require a foreign actor as was the case when the constitution was written”.
