Q & A: Reinventing Iraq

Horowitz: understanding constitutional complexity in emerging democracies

Horowitz: understanding constitutional complexity in emerging democracies. Chris Hildreth

Donald Horowitz, James B. Duke Professor of law and political science, is an expert in ethnic conflict and constitutional design. He has advised several countries on the intricacies of the constitutional process. He serves on the U.S. Secretary of State's Advisory Committee on Democracy Promotion, a group that focuses on emerging democracies around the world, and, in May, was among six scholars invited to meet with President George W. Bush and Vice President Dick Cheney to discuss Iraq policy and divided societies.

To what extent is Iraq's current ethnic conflict solvable?

Solvable isn't the word that I would ever use with respect to the kind of conflicts that are typified by the Iraq one. They get better and they get worse, but solutions are not the sort of thing that people who work in this field are aiming at. What they're aiming at is reducing the conflict and channeling it into nonviolent forms.

What role does the creation of a constitution play in reducing violence?

The constitution structures the political institutions of a state. The structure of political institutions in the state can either make conflict worse or make it better. The constitution that was agreed upon in Iraq in 2005 was one that was guaranteed to make things worse, much worse.

How so?

The constitution was essentially a Kurdish design for Iraq. The Kurds want a very substantial amount of autonomy, and they sold the Shia on that kind of constitution, creating a decentralized Iraq, including the decentralization of future oil revenues. The Sunnis were underrepresented at the time in the parliament, and they were underrepresented in the constitution-drafting committee. The result was that the Sunnis, who live in a very oil-poor area, and who, in any case, want a single, unified Iraq, were gravely disadvantaged by the constitution.

Furthermore, any new amendments will have to be ratified in a referendum. And a two-thirds vote against amendments in any three provinces will defeat the amendment. So even if there were very favorable amendments toward the Sunnis in the revised constitution, when those are submitted to the population via referendum, the Kurds, who control three provinces, could easily defeat those amendments. A constitution that is unfavorable to Sunni interests is one of the sources of the violence that's coming from the Sunni areas.

Now suppose for the sake of argument that the constitution were dramatically amended to reduce the degree of decentralization, and create what's really needed, namely a unified Iraq with a fair apportionment of the oil revenues. If you couple that with a revision of the "de-Baathification" law, what you would find is that a lot of the Sunni grievances against the current regime would be much reduced, and Sunni support for at least the Baathist part of the insurgency would decline. As a matter of fact, Sunnis might then turn even more decisively than they have recently against al Qaeda. And if the violence coming from the Sunni side declined, the retaliatory killings by the Shia militias would also decline.

What role can the U.S. military play in correcting the existing problems? Is there a way the military can help institute constitutional changes?

The military won't be involved in the constitutional deliberations. But the American embassy, of course, has a very considerable role to play. Former ambassador [Zalmay] Khalilzad did play a role in previous constitutional negotiations. For example, it was his insistence that got [increased] Sunni participation in the drafting committee. And it was also he who persuaded the Iraqi authorities to provide for an amendment committee. But whether the American embassy has been successful in convincing the Kurds that they have to give up something is a different matter altogether.

Critics of the American effort in Iraq sometimes point out the irony implicit in "imposing" a democracy on another country. Is that what is going on here?

It depends what you mean by "imposing." It's obvious that the American invasion of Iraq created the conditions for a new regime. So to the extent that that new regime is democratic, then, in that sense, there's a causal connection between the invasion and the emergence of a democracy. On the other hand, the Americans have not been wholly successful in imposing the particular institutions on the Iraqis that the Americans would have liked. It's very clear that the design of this constitution is an Iraqi one.

Can you give examples?

I don't think the United States would have liked to have seen a very weak central government and a Kurdistan that's highly autonomous and able, by the powers accorded to it, to provoke the Turks, who are American allies. Likewise, if the Americans were to choose, it would be very unlikely that they would have chosen a constitution that would allow nine provinces in the Shia south to unite to form a region—essentially a "Shiastan"—that may very well be open to Iranian influence. That [unification] hasn't happened yet, but the current constitution permits it. Similarly, the Americans wouldn't like a constitution that renders the Sunnis so dissatisfied that they would be unwilling to turn on al Qaeda and to reject the Baathist insurgency. So from every standpoint, the constitution is not congenial to American interests. That's for sure.

You've studied the constitutional process in many other countries. Which has been the most interesting?

They're all interesting in different ways.

It's hard to answer that question. I'll tell you the one that I think is the most unpredictably interesting, and that's Indonesia. In 1998 when [President] Suharto fell, most people would have guessed that Indonesia was not going to emerge with a democratic regime. And within five years, that turned out to be false. The Indonesians had a long democratization process with a long process of producing a heavily amended constitution. And they have thus far emerged with rather a successful democracy.

How important is it for emerging democracies to create their own systems rather than modeling themselves after a specific foreign system?

If those were the only two alternatives, it would be easy to answer that the first is better than the second. But those are not the only two alternatives. All of these countries need to learn from the experience of other countries that have similar problems. While they shouldn't model themselves on anybody else because no two situations are exactly alike, they certainly ought to be learning across country boundaries. Sometimes they do this well, and very often they do it very poorly. Very often they restrict their sights to a few conspicuous democracies, like the American one or the British one or the Swiss one. One of the big problems in this field is bringing to bear expertise on comparable problems for countries whose indigenous capacity to tap the expertise is limited—by virtue of the fact that either people haven't studied the relevant examples or have been victims of a closed authoritarian system that limits comparative learning.

In the case of Indonesia, how did planners connect with advisers and find useful examples?

There were a number of American and other NGOs on the ground that helped them a lot to figure out what the options were. There was also one Indonesian NGO which cast a very broad net. For example, in deciding on how to elect the president under the new constitution, it suggested an innovation that actually came from Nigeria. They found it on the Web, oddly enough. As it happened, I'd been in Nigeria when that system was adopted and I was also able to tell them how it worked, but basically they did it themselves.

Has this discovery process taken place in Iraq?

The Iraqis haven't been very good at this, [and] they haven't had the best foreign advice. They've missed a lot of opportunities that they might have taken, both to get other advice and to cast a sideways glance at other countries. And they haven't always understood the relevance of other countries for their predicament.

Part of the problem is that they were under a lot of time pressure. The American government put them under a lot of that time pressure, because the American government was eager to show democratic progress. They could have taken another six months to draft their constitution; the Americans discouraged them from doing that.

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