Present at the Disintegration

By KANAN MAKIYA (NYT)
Published: December 11, 2005

WASHINGTON and Baghdad will be tempted, with the adoption of a new Constitution and the election on Thursday for a four-year government, to declare victory in Iraq. In one sense, they are right to do so. The emerging Iraqi polity undoubtedly represents a radical break not only with the country's past but also with the whole Arab state system established by Britain and France after the collapse of the Ottoman Empire.

But in the larger sense, such optimism is misguided, for none of the problems associated with Iraq's monumental change have been sorted out. Worse, profound tensions and contradictions have been enshrined in the Constitution of the new Iraq, and they threaten the very existence of the state.

How did we get here? Much has been said about American failures in Iraq. And rightly so. But, as I've seen as a participant in political discussions both before and after the war, we Iraqis have also failed to lay the ground for a new order. For the new political elite cast into power by the elections last January has been unable even to begin to create a stable and strong Iraqi state to replace the one overthrown in April 2003. The increasing daily casualty rate for Iraqis, from 26 in early 2004 to an average of 64 in this fall, is only the most glaring sign that something has gone terribly wrong, and not for lack of any American effort to turn the situation around.

Unfortunately, we cannot expect the situation to change following Thursday's election. There is little chance that the winner will command the authority inside Parliament to reverse the decline, for a simple reason: the Constitution.

All signs suggest that this Constitution, if it is not radically amended, will further weaken the already failing central Iraqi state. In spite of all the rhetoric in that document about the unity of the ''homeland of the apostles and prophets'' and the ''values and ideals of the heavenly messages and findings of science'' that have played a role in ''preserving for Iraq its free union,'' it is disunity, diminished sovereignty and years of future discord that lie in store for Iraq if the Constitution is not overhauled.

ANY government that emerges from the coming elections will be fatally undermined in at least three ways.

First, the Constitution establishes a supremely powerful Parliament, which can ride roughshod over the executive. While that Parliament, as it is designed in the Constitution, looks like a democratic institution, it doesn't work like one. Rather, it is an artificially constructed collection of ethnic and sectarian voting blocs. If the experience of the interim government is any guide, the few people who control those blocs are the ones who will wield real power, and they will do so largely through handpicked committees and backroom wheeling and dealing. Because this cabal of powerbrokers also chooses the president and the prime minister and can dismiss them with a simple majority, there will be no check on the tyranny of majorities operating under the aegis of the legislature.

Second, executive power is divided between the president and the council of ministers, guaranteeing that major decisions will be met with the same tension and paralysis that have plagued the present government. Both the president and the prime minister (it is assumed, though not explicitly stated, that these two posts will be apportioned out to a Kurd and a Shiite Arab, as they are at present) can separately present bills to Parliament -- a sure recipe for conflict. And both the president and the prime minister can be fired after a no-confidence motion endorsed by a parliamentary majority. At a time of civil war and pervasive violence, in other words, no one person or institution can be said to be in charge of the executive branch of the federal government.

Third, the Constitution encourages the transformation of governorates and local administrations into powerful, nearly sovereign regions that, with the exception of Kurdistan, have no underlying basis for unity. And while the articles dealing with the functioning of the federal government are poorly worded and intended to dissipate executive power, the 10 articles of Section 5, on the powers and manner of formation of new regions, are a model of clarity and have been drafted with the sole purpose of encouraging new regions to be created at the expense of the federal union.

This guarantees that the more Iraqi provinces opt for regional status, and get it, the more the federal state will shrivel up and die. Moreover, with the exception of those who reside in provinces without oil (or in Baghdad, which cannot join a region), it is in the interest of every populist demagogue to press for regional status, because it is at that level that the lawmaking that truly affects day-to-day life will take place.

The powers of the new regions will be enormous. Not even the Iraqi Army can travel through one without the permission of the regional Parliament. And should there be any doubt about where the whip hand will lie on any issue not explicitly addressed in the Constitution, Article 122 states: ''Articles of the Constitution may not be amended if such amendment takes away from the power of the regions ... except by the consent of the legislative authority of the concerned region and the approval of the majority of its citizens.''

An Iraqi wit known only as Shalash al-Iraqi has lampooned this devolution of power in an imaginary constitution, called ''The Federalism of the City of Thawra and its Environs,'' posted on the Internet. Its preamble reads:

Congruent with the wave of federalisms that is sweeping Iraq, the City of Thawra and its surrounding neighborhoods have decided to constitute themselves as a federal region. For this purpose a Constituent Assembly of the representatives of the most important and influential tribes in the City has been established [and it] has noted that the City of Thawra [is well suited to become a region because it] floats on a lake of oil, and possesses a huge labor force along with an independent army and police force In addition the city is bounded by a canal, which is its water link to the cities of the adjoining sisterly Republic of Iraq

''We, people of the valley east of the canal, have of our own volition and free will decided to separate from the people of Baghdad and all the other irritating governorates like Ramadi, Diwaniya, Tikrit, Darbandikhan, Samawa and all the rest The adoption of this, our constitution, will free us from all the headaches and problems of Iraq.''

There is nothing wrong with having strong regions within a federal union. Unfortunately the new Iraqi Constitution fails to inject the glue that would hold such a union together: the federal government. It sets up a regional system with big short-term winners (Shiite Arabs and Kurds) and big short-term losers (Sunni Arabs). It even allocates extra oil and gas revenues to the regions that generate them, on the implicit assumption that because of the political inequities of the past, the state owes the Sunnis of the resource-poor western provinces less than it does the Shiites and Kurds. But these provinces are not significantly better off than other parts of Iraq.

Iraq's Sunni Arabs voted solidly against the Constitution not because they are Saddam Hussein loyalists, nor because they hate the Kurds and Shiites (as some of the insurgents do); they voted against it because by doing away with the central state, which they had championed during the previous 80 years, and penalizing them for living in regions without oil, the Constitution became a punitive document -- one that began to seem as if it was written to punish them for the sins of the Baath.

What is wrong with pursuing the Constitution to its logical conclusion: the breakup of Iraq? Nothing, if that breakup is consensual and does not entail an escalation in the violence tearing the country apart. But such is not the case. The debate in Parliament over the Constitution was extremely polarized and artificially cut short by the majority. Moreover, if a mere 83,283 people in the province of Nineveh had voted no instead of yes, the draft constitution would have been defeated.

Sunni opposition to the new order will continue. Crushing it by force, as some Shiite hotheads in the Parliament's majority bloc are calling for, will be an extremely bloody business. Even if the long-term outcome of an all-out Iraqi civil war is not in doubt, the body count and destruction would make Lebanon's war look like a picnic. No moral person can condone the parliamentary majority that makes this happen.

The 2003 Iraq war has indeed brought about an irreversible transformation of politics and society in Iraq. But this transformation has not consolidated power, as the great revolutions of the past have tended to do (in France, Russia and even Iran), nor is it distributing power on an agreed upon and equitable basis, as happened after the American Revolution and as Iraqi liberal democrats like myself had hoped would happen after the fall of Saddam Hussein. Rather, it is dissipating it. And that is a terrifying prospect for a population whose primary legacy from the Saddam Hussein era is a profound mistrust of government in all its forms.

By ceding and dismissing centralized power, Iraqis may end by ceding all their power. Iran in the short run, and the Arab world in the long run, will fill the vacuum with proxies, turning the dream of a democratic and reborn Iraq into a dystopia of warring militias and rampant hopelessness.

The reaction against tyranny in Iraq was always going to take the form of a new kind of state in the Middle East, one that in the minds of those who struggled against the regime of Saddam Hussein had to be profoundly decentralized. And federalism did not have to entail the dissipation of power. As it was first envisioned, a federal Iraq promised to safeguard against despotism while furnishing a framework both strong and flexible enough to reconcile the competing demands of its citizens.

Federalism first entered the lexicon of the Iraqi opposition in 1992, when the newly created Kurdish Parliament voted in favor of it as a way of governing the relation of Kurdistan to the rest of the country. That vote was ratified a few months later by a conference of the Iraqi opposition in Salahuldin, in northern Iraq.

Remarkably, the idea of federalism survived the bitter infighting among Iraqi exiles in months before the 2003 war, becoming one of the few common denominators in the discourse of the opposition about the future of Iraq. The fact that there was no literature in Arabic on federalism to speak of, and that Iraqi parties and organizations did not know or agree upon what federalism meant, and that Iraqi politicians did not bother themselves with thinking about what it might mean, did not deter individuals, parties and organizations from continuing to advocate it.

I was one of the idea's most ardent Arab advocates. In Salahuldin, I delivered the keynote speech on the subject, not only endorsing the Kurdish Parliament's decision, but presenting federalism as a general solution to the problems of the Iraqi state. A federalism based on Iraq's existing 18 governorates broke the rotten mold of Iraqi and Arab politics, I argued. No Iraqi political organization could afford not to be for it, especially not one that called itself democratic. Without a system of government in which real power devolved away from Baghdad, the autonomous, predominantly Kurdish north must sooner or later opt for separation. And how could any Iraqi expect otherwise, after all the terrible things that had been done to the Kurds in the name of Arabism?

Some Arabs argued that one must concede federalism in the interest of getting rid of Saddam Hussein and because the Kurds are in a position to force it upon us. And we must accept federalism, some Kurds said, not because we really want it, but because the regional situation does not allow us to secede. But utilitarian calculation did not lie behind the democratic argument.

Federalism in Iraq would both separate and divide powers. Painstakingly negotiated arrangements would distinguish the powers of the parts from those of the center, taking care to leave important functions in the hands of the federal government.

We thought it wise to define regions territorially, according to the relative distribution of the population, and to include in the constitution the claim that the country's resources (in particular oil revenues, the only real source of income for the foreseeable future), would belong to all Iraqis equally and would be managed by the federal government. Different ethnicities and sects would almost certainly form majorities in particular regions. The point was not to change such distributions, but to emphasize the equality of citizenship.

Such a federalism, Iraqi democrats said, was the logical extension of the principle of human rights. It was based on the notion that the rights of the part -- whether that part was a single person or a group -- should not be sacrificed to the will of the majority. What people like myself failed to appreciate, or understand, before 2003, were the powerful forces driving toward purely ethnic and sectarian criteria for the definition of the ''parts'' of the new federal idea. The consequence of those forces has been a tremendous weakening of the political idea of Iraq, which the new Constitution has converted into hostility toward central government per se.

A decentralized, federal state system that devolves power to the regions is not the same as a dysfunctional one in which power at the federal level has been eviscerated. The former preserves power while distributing it; the latter destroys it. At the moment Iraqis have a dysfunctional and powerless state. The Constitution does not fix this; it makes it worse.

What began as an American problem is today an Iraqi one. To steer the country away from anarchy and manage the furies that have been unleashed, the following measures need to be undertaken by the new Iraqi Parliament the moment it reconvenes after the elections:

Recognize that at the moment only Kurdistan fulfills the conditions for being a region. Using the Kurdish experience as a model, the Constitution must define the minimum conditions that need to be met by any group of provinces that desire to form themselves into a region. Then set a moratorium of 10 years on the establishment of new regions, this being the time necessary to crush the insurgency, establish properly accountable institutions of law and order and ensure that those applying for such status have met the criteria.

* Limit the size of any new region formed after the 10-year period to a maximum of three governorates and fix the existing unmodified boundaries of the 18 governorates of Iraq as the basis for the establishment of new regions.

* Delete Article 109, which allocates extra oil revenues to the regions that generate them. There is no defensible case for imposing special reparations on the Sunni populace for the crimes of Iraq's former leaders.

* Appoint a committee of expert constitutional lawyers to make the necessary amendments reconciling the legislature with the executive and the different parts of the executive with each other. This is not a matter that can be resolved by the politicians alone.

DEMOCRACY is not reducible to placing an Iraqi seal of approval upon a situation that is manifestly worsening by the day. The 79 percent of people who voted in favor of a constitution that promotes ethnic and sectarian divisions are unwittingly paving the way for a civil war that will cost hundreds of thousands of Iraqi lives. Nothing is worth that.

Without the return of real power to the center, the ascent of sectarian and ethnic politics in Iraq to the point of complete societal breakdown cannot be checked. We cannot fight the insurgency, rebuild Iraq and live in any meaningful sense as part of the modern world without a state. There are no human rights, no law, and no democracy without the state; there is only anarchy and a state of insecurity potentially much worse than what Iraqis are experiencing today. For democracy to emerge out of the current chaos in Iraq, the state must be saved from the irresponsibility of the Iraqi parties and voting blocs that are today killing it.