From the WSJ Opinion Archives
AFTER THE WAR
A Backroom Constitution?
Iraq has a government. Now what?
The naming of Ibrahim Jaafari as prime minister charged with forming the new Iraqi government marks the success of a backroom deal struck between the Shiite and Kurdish politicians who dominate the National Assembly. Although a freely elected Iraqi government is a novel historical development, the key players are not political neophytes. The Kurds have experience politicking (and infighting) in the Kurdish Regional Government that existed even in Saddam's time, while the Shiites grew experienced in dealing with the internecine politics of Iran during their time in exile. Shiite and Kurdish leaders alike got to know each other during pre-war meetings in London, and they worked together intimately on the Governing Council and in the interim government that has been in place since the transfer of sovereignty last June.
The new government, in fact, bears a close resemblance to the group of exile politicians who returned to Iraq after Saddam's fall. Mr. Jaafari, the new president Jalal Talabani, and one of the deputies, Adel Abdul Mahdi, were all part of a small group of leaders who met with Ambassador Paul Bremer on his arrival in Iraq in May 2003, seeking that sovereignty be transferred directly to them. Today they will govern as they planned all along. Now, as then, Sunnis are underrepresented.
What has changed is the distribution of power among the members of the group. With the support of Ayatollah Ali Sistani, and the largely disciplined voting of their constituency, the Islamically oriented Shiite politicians have taken the lead. Mr. Jaafari is a committed Islamic democrat who speaks in favor both of democracy with basic rights and the importance of Islamic values in informing government policy. Abdul Mahdi, the runner-up in the jockeying for the PM's job, has similar Islamic credentials and also speaks the language of democracy and rights. Voting as a bloc themselves, the Kurds also managed a strong showing in the elections while the Sunnis stayed home, out of some combination of fear and resentment. The results made the Kurds kingmakers, and the largely ceremonial presidency is their prize.
From the narrow perspective of maximizing U.S. influence, Mr. Jaafari's emergence as the consensus candidate for the most important post may be seen as a rebuff. In the past two years the U.S. has in turn backed the secularists Ahmad Chalabi and Iyad Allawi, both of whom had close ties to different branches of U.S. intelligence. But neither had anything like the domestic political support necessary to form a government, a reality that the election urged by Ayatollah Sistani revealed. Instead, the prime minister--and others among the Shiite politicians to a still greater degree--have ties to Iran that are as close or closer than any ties he might have to the U.S.
In the longer term, however, it is in both U.S. and Iraqi interests for the prime minister to be seen as keeping a critical distance from the power that keeps 150,000 troops in the country he must lead. The more independent he is, the greater his chances of capitalizing on his democratic legitimacy and strengthening the still-weak sovereign government. In turn, enhancing the self-sustainability of the Iraqi state is the only possible way to reduce U.S. troop levels. That Mr. Jaafari is his own man--a fact no one doubts--will therefore be his greatest asset. That his sincerely held Islamic-democratic beliefs differ from what Washington would have preferred should stand as a signal of his independence.
Mr. Jaafari will need all the credibility he can muster to accomplish the twin tasks that now lie before him. First, he must shepherd the national assembly through a constitution-writing process that will be more challenging than many imagine. The blueprint for a constitutional text already exists in the form of the transitional administrative law (TAL) that is presently in force and that was drafted in 2004 under the eye of the coalition. The TAL guaranteed equality for all and religious liberty even as it made Islam a principal source of law and barred laws violating those principles of Islam on which there is consensus. Representatives of all major parties put their names to that document, and it would be difficult now to claim that its provisions were entirely unacceptable.
But there is an enormous difference between an agreement negotiated between a few players in secret and one shaped in a public process with 275 official participants. Leaders among the Shiites and Kurds have already begun cutting deals over contentious issues like the powers of a federal Kurdistan and the status of oil-rich Kirkuk, claimed by the Kurds; indeed without substantial progress on these issues, a government could never have been named. But backbenchers from both sides are likely to raise questions about private arrangements once the assembly begins debate. Hard-line Kurds may attract attention by condemning compromises on Kurdish powers. Meanwhile the more extreme Islamist politicians--some of Moqtada al-Sadr's followers are in the assembly--will insist loudly on stronger language enshrining Islam.
Yet even the crucial questions of federalism and the role of religion pale compared to the most serious problem facing Mr. Jaafari: incorporating Sunni voices into the constitutional process with the goal of offering a political solution to the insurgency. The new government is right in thinking that it must give no ground to the insurgents when it comes to the use of force. The insurgency can only gain from the perception, however implausible, that it might "win" by driving out the U.S. forces. At the same time, if no attractive political option is offered to moderate Sunnis who might be inclined to abandon the insurgents, the insurgents will tell on-the-fence Sunnis that a Shiite-Kurdish government will never treat them equally.
Fighting the insurgents while offering an out to moderate Sunnis calls for a delicate balance. It will involve dealing with Sunni figures whose hands are not entirely clean, and whose bona fides are subject to question. In particular, Sunni clerics will have to serve as conduits to the Sunni population, not because they are ideally placed for the role, but because the Sunni electoral boycott means there is no one else in a position to claim authority. It is a hopeful sign that some have begun to call for Sunni participation in the security forces--because that is the first step to rejecting insurgency in favor of participating in the new government. But more participation is needed, and it will be up to Mr. Jaafari's government to court Sunnis so as to get that from them.
A constitution negotiated by Shiites and Kurds with Sunnis on the sidelines stands little chance of creating a government that can function effectively over the long term. Spoilers that they are, the Sunnis generate little sympathy. But they must be dealt with regardless, and soon. Otherwise the political savvy and power-sharing successes of the new government will be for naught.
Mr. Feldman, author of "What We Owe Iraq" (Princeton, 2004), is professor of law at New York University and a fellow of the New America Foundation.
