Debating
Devolution in Iraq
Reidar Visser
March 10, 2008
(Reidar
Visser is a research fellow at the Norwegian Institute of International
Affairs and editor of the Iraq website www.historiae.org.)
In early August
2007, Jalal al-Din al-Saghir, a Shi‘i preacher affiliated with
the Islamic Supreme Council of Iraq, made headlines with striking
comments to a reporter for the Christian Science Monitor.
The cleric revealed in an interview with Sam Dagher that “a massive
operation” was underway to secure the establishment of a Shi‘i
super-province in Iraq, to be named the “South of Baghdad Region,”
and projected to encompass all nine majority-Shi‘i governorates
south of the Iraqi capital. Saghir claimed that his party had
already drafted detailed plans for how such a super-province
would be governed -- plans of such importance to Iraq and the
region that there was “no room for misadventures.”[1] While Saghir did not mention a timeline for
this remarkable undertaking, other Supreme Council supporters
of the idea were less reticent: “The Shiite federal region will
be announced in April 2008,” wrote one enthusiastic proponent.[2]
The date was
not chosen at random. April 2008 is the month when the law for
implementing federalism -- adopted by the Iraqi parliament in
October 2006 -- comes into effect. For the first time in Iraqi
history, areas of the country that desire a special federal status
similar to that already enjoyed by Kurdistan may initiate a procedure
for transforming themselves from ordinary governorates into “federal
regions,” potentially acquiring such privileges as the right
to establish local paramilitary forces and the right to negotiate
local deals with foreign oil companies. In order to obtain the
rank of federal region, a governorate must hold a referendum
in which no less than 50 percent of the electorate votes and
a simple majority votes yes. If multiple governorates wish to
band together in one federal region, the proposition must pass
such a referendum in each province tagged for inclusion. (Only
the Baghdad province is prohibited from forming part of a greater
federal region.) If one targeted governorate says no, the federal
project founders.
PUTTING THE
SUPER-PROVINCE ON ICE?
For a while,
it seemed that Supreme Council leaders were on track to realize
their grandiose federal ambitions south of Baghdad. The Supreme
Council already held a very strong position inside the Iraqi
government, thanks not least to its excellent relations with
Washington and Tehran -- both of which capitals, somewhat incongruously,
consider the Shi‘i Islamist party their number one partner in
the Green Zone. The Supreme Council’s project also dovetailed
nicely with the aspirations of the twin Iraqi Kurdish parties,
which have long sought allies willing to engage in quid pro
quo bargaining over the oil-rich city of Kirkuk, which they
aim to embrace inside expanded boundaries of the present Kurdistan
Regional Government. (The Supreme Council could find Kurdish
backing helpful for its similar designs upon areas of the Sunni
Arab-dominated Anbar governorate.) And in September 2007 another
potential ally entered the limelight: Sen. Joseph Biden (D-DE)
sponsored a Senate resolution recommending that Iraqi elites
answer the question of federalism through a nationwide “conference
settlement.” Such a “conference” would be alien to the provisions
for gradual “bottom-up” federalism in the 2005 Iraqi constitution,
but would be precisely the sort of setting where the polished
Supreme Council leaders would have the upper hand and where the
cumbersome, but more democratic constitutional modalities could
be dispensed with altogether.[3] (In December, Biden’s non-binding “sense of
Congress” resolution passed.)
On January
13, 2008, however, other Shi‘i actors, including loyalists of
Muqtada al-Sadr, several branches of the Da‘wa party and many
independents, joined Sunni Arabs, Turkmen, representatives of
the Yazidi and Shabak minorities, and secularists of all communal
backgrounds in signing a “Baghdad charter” that addressed the
federalism question from a different perspective.[4] The
document expressed deep concern about bids by regional entities
to cut deals with foreign oil companies, adding that the status
of Kirkuk (which the Kurds hope to absorb into their federal
region through an early referendum) should be resolved only through
negotiation and consensus, so that the city becomes a “model
of national unity, coexistence and social integration of the
people of a single united homeland.” The declaration also inveighed
against the resort to ethno-sectarian principles in structuring
Iraqi politics. Funds from the national budget, for example,
should be distributed among provinces according to their relative
demographic weight, not communal quotas.
Weeks later,
this noteworthy cross-sectarian coalition asserted itself once
more. On January 28, Baha’ al-Araji, a Sadrist, spoke before
the Iraqi parliament on the issue of the draft law for the powers
of governorates -- those that already exist, not the envisioned
federal regions. He emphasized, firstly, that the powers the
draft law gave to provincial assemblies should come into force
only after new local elections had been held and, secondly, that
it was necessary to insert a timetable for those provincial elections
in the law. Al-Araji was supported in this stance by the Fadhila
party (a spinoff from the main Sadrist bloc) and other Shi‘i
Islamists, as well as Sunni Islamists, secularists and minority
representatives.[5] The opponents of a timetable for elections were
the Kurdish parties and the Supreme Council, which also voiced
concern about the relatively large role given to the central
government in supervising the existing governorates.
With the eventual
passage on February 13 of the non-federated governorates act,
Iraqi Shi‘a, and indeed Iraq as a whole, had moved very far from
the imaginative federal plans described by Saghir to Dagher less
than six months before. Through their actions in the legislature,
substantial segments of the “Shi‘i” contingent had demonstrated
commitment to another, less sectarian vision: consolidation of
the existing system of government in Iraq south of Kurdistan,
with a meaningful role for the central government, and with no
administrative lines drawn to separate “Shi‘i” from “Sunni” areas.
The Supreme Council, for its part, had apparently been outpaced
by the comeback of this vision. In the January 2005 local elections,
which some Shi‘i parties boycotted, the Supreme Council had managed
to gain a foothold in several provinces south of Baghdad (though
not in Basra and Maysan, sites of the main southern oilfields).
Now, in an attempt to avoid the insertion of a date certain for
provincial elections in the governorates law, the Supreme Council
cited practical problems that would accompany early polls because
many local offices of the Iraqi electoral commission remain inoperative.
That argument, of course, would logically apply with equal force
to any referenda upon new federal regions. Hence, if the Supreme
Council is to remain consistent in its rhetoric, the southern
super-province project must be put on ice until local elections
offices are ready.
THE SUPREME
COUNCIL’S BOMBSHELL
There could
be other players in the federalism game come April 2008, however.
On February 20, Wa’il ‘Abd al-Latif, a former judge and now member
of Parliament for Basra, told the southern television channel
al-Fayha that he was about to start efforts to create, “in accordance
with the constitution,” a “region of Basra” limited to Iraq’s
second city and environs, and thus separate from the rest of
the Shi‘a of Iraq. In fact, this project dates back five years,
and is the only federalist movement among the Shi‘a that cuts
across party lines: It receives support from secular politicians
(like ‘Abd al-Latif), from tribal leaders and from Islamist opponents
of the Supreme Council, such as Fadhila.
Basra’s regionalism
shows that Iraqi Shi‘a are not divided into two camps on the
issue of federalism, but rather into three: centralists who want
a strong Baghdad government, small-scale federalists and those
advocating larger, ethno-sectarian regions. On many issues, however,
the centralists and the small-scale federalists see eye to eye,
as with regard to administration of the oil sector, where ‘Abd
al-Latif, like many centralists, has spoken in favor of control
by Baghdad. The main cleavage with respect to the question of
devolution in Iraq is thus more accurately characterized as setting
off the ethno-federalists (the Supreme Council and the Kurdish
parties) from all the other groups. Indeed, the latter might
well be thought of as “conservative moderates” or even “centrists”
for proposing a decisive halt to the demolition of existing Iraqi
structures of government that was initiated by US administrator
L. Paul Bremer back in 2003. In the centrist view, it is time
to start reconstruction in Iraq on the basis of existing infrastructure,
instead of destroying even more of the current system, or generating
further potential for civil conflict through divisive federal
adventures and imagined sectarian “regions” of which no one had
even heard prior to 2005.[6]
Notwithstanding
the trend toward centrism in the Iraqi parliament, the ethno-federalists
had one more card to play. At night on February 26, in the middle
of a parliamentary recess and on the eve of the Arba‘in religious
holiday, the Supreme Council’s ‘Adil ‘Abd al-Mahdi slipped a
bombshell into a letter to his colleagues on the three-person
Iraqi presidency council. By the terms of the 2005 constitution,
this council is composed of a president (currently, Jalal Talabani
of the Patriotic Union of Kurdistan) and two vice presidents,
all three of whom have the prerogative to veto legislation passed
by Parliament. In his February 26 missive ‘Abd al-Mahdi, one
of the vice presidents and a Bush administration favorite, announced
his veto of the recent law on the powers of the governorates.[7]
In his view, many of the law’s provisions for a degree of central
control over the governorates were “unconstitutional.” ‘Abd al-Mahdi
clearly stretched the legal limits on his power to the maximum:
According to the constitution, vetoes must be declared within
ten days of receipt of laws at the presidency council, and the
letter was sent 13 days after the disputed piece of legislation’s
passage. Even in the middle of the holiday season, other Iraqi
politicians reacted furiously, with ‘Abd al-Mahdi’s fellow Shi‘i
Islamists in the Sadrist and Da‘wa movements prominent among
the protesters.
What happens
next with the law on the powers of governorates? The answer is
not entirely clear. From the constitutional point of view, the
process should be straightforward. Once Parliament reconvenes
in mid-March, its members can debate the law and send it back
to the presidency council, which will have to adopt it by consensus
or reject it within ten days. It then goes back to Parliament,
but this time the legislature has the power to ratify the law
without presidential consensus. The caveat is that ratification
must take place not by simple majority but by three-fifths super-majority
(not two-thirds as claimed in some news stories). A complicating
factor is that, through certain arguments in his letter, ‘Abd
al-Mahdi enters the domain of constitutional review, which properly
belongs to Iraq’s federal supreme court, instituted by the 2004
Transitional Administrative Law and still operative pending the
establishment of a new court pursuant to the 2005 constitution.
In fact, that court has already issued an opinion on the powers
of the governorates, specifically limiting these to areas not
among the “exclusive powers of the federal government” enumerated
in the constitution.[8] But ‘Abd al-Mahdi refers to “legal
experts” in his own office who will come up with suggestions
for amendments. This practice of circumventing the emerging Iraqi
judicial structure is quite typical of the ethno-federalist bloc.
Lately, the Kurdish parties have been trumpeting a legal opinion
that essentially argues that the Kurdistan Regional Government’s
law on oil is more in tune with the Iraqi constitution than the
draft law of the central government -- the problem being that
the author, British lawyer James Crawford, is not a member of
Iraq’s federal supreme court, whose very existence is ignored
in his brief note.[9]
BUSH’S BIDEN
POLICY
A great challenge
to the diverse centrist coalition is the immense support given
to its ethno-federalist opponents by players outside the 15 Iraqi
governorates that are not part of a federal region. Firstly,
there is the powerful backing of the Kurdish parties for the
Supreme Council, which often seems aimed at depriving Baghdad
of any real capacity for governance. The Kurdish parties are
aligned with advocates of “soft partition” in the United States,
like Sen. Biden, who tirelessly conjure images of an Iraq neatly
split in three and who are programmatically opposed to any restoration
of a powerful Baghdad in Iraq. Even in more modest statements,
champions of “soft partition” insist on unconstitutional “conferences”
that might well serve to perpetuate the hegemony of the ethno-federalists,
who are proven masters of the art of backroom deals. The international
media, for its part, simply refuses to recognize the existence
of the second party in the ongoing two-way struggle. Instead
the media read every single move on the Iraqi political scene
as part of a “battle” between Iraq’s “main contending factions,
the Shiites, the Sunnis and the Kurds” -- as seen, for example,
in coverage of the law on the powers of governorates, largely
presented to American readers as a “Shiite objective” in a grand
compromise where the Kurds got “their” budget and the Sunni Arabs
“their” amnesty law.[10] The
deep intra-Shi‘i divisions on the governorates law and the Sadrist
demands for a strong amnesty law were conveniently ignored; only
the ethno-federalist players were even acknowledged.
Arguably,
though, the greatest problem for the Iraqi centrists is what
may be termed “Bush’s Biden policy.” While Washington speaks
an admirable language of fidelity to strong central government,
in practice it consistently extends material and moral support
to the opposite camp, the ethno-federalists that share Biden’s
vision for Iraq. In 2003, Bremer acceded to Kurdish demands to
maintain peshmerga militias; in 2004, the US let the Kurdish
parties introduce the fateful concept of “disputed areas” into
the Transitional Administrative Law, whereby the old regime’s
displacement of individual Iraqis can be redressed by collective
demands on territory framed in an ethnic language. Since 2005,
when it launched the divisive project of a single sectarian region
south of Baghdad, the Supreme Council’s relationship with Washington
has prospered. Whenever there is talk in Washington about an
alternative to Prime Minister Nouri al-Maliki, the discussion
tends to focus on the Supreme Council’s man (and the instigator
of the presidential veto of the governorates law), ‘Adil ‘Abd
al-Mahdi. ‘Abd al-Mahdi’s accession to power would probably mean
the evaporation of the last remnants of centralist thinking in
the Iraqi government, currently represented by Maliki personally,
as well as figures like Oil Minister Husayn al-Shahristani. Conversely,
Washington maintains little or no contact with representatives
of the centrist trend whose vision for the future is far more
compatible with the long-standing stated objective of US policy:
a unified, multi-ethnic Iraq.
It is policy
contradictions like these that facilitate the persistence of
ethno-federalist dominance in Iraq, despite clear signs that
this current is losing influence in the Iraqi parliament and
among the Iraqi people south of Kurdistan. The ethno-federalists
may not enjoy a parliamentary majority, but they have secured
control of two of the three seats on the Iraqi presidency council.
They cannot dictate the legislative agenda, but have managed
to jostle their way to a blocking majority on the committee charged
with revising the Iraqi constitution. Today, in a most ironic
manner, Iraqi politics has come almost full circle in a gradual
liberation from sectarianism: An institution originally designed
in 2005 by the ethno-federalists to protect communal interests
-- the presidency council -- is now being used by one of the
vice presidents, ‘Abd al-Mahdi, to guard his ruling faction against
democratic pressures framed in Iraqi nationalist terms, including
from a majority within his “own” Shi‘i community. There are signs
that at least some groups inside the government have had enough
of the centrifugal forces associated with the ethno-federalists,
with the Supreme Council’s complaints about the police in Nasiriyya
and Basra suggesting that its supposed monopoly on the security
forces south of Baghdad is much exaggerated. But until US policymakers
realize the growing importance of the centrist trend in Iraq
there can be no real alternative US policy: The major “alternatives”
to Biden’s ideas on the Democratic side -- withdrawal or a focus
on fighting al-Qaeda -- would only mean a freeze of current power
structures and an irreversible head start for the axis of the
Kurdish parties and the Supreme Council. These parties, notably,
have benefited and continue to benefit from a disproportionate
share of US spending on supposedly “national” institutions of
government, including the arming and training of branches of
the country’s security services. In the meantime, those Iraqis
trying to push their country’s politics in a more sensible direction
will continue to face a formidable opposition, made up of the
combined forces of Republicans and Democrats in the United States,
Iran and their ethno-federalist Iraqi partners.
Endnotes
[1] Christian
Science Monitor, August 6, 2007.
[2] Personal
communication from Shi‘i intellectual in exile, August 22, 2007.
[3] See
Reidar Visser, “Nonsense of Congress on Federalism in Iraq,”
December 13, 2007, posted at www.historiae.org/congress.asp.
[4] Al-Bayyina,
January 14, 2008.
[5] Proceedings
of the Iraqi parliament, January 28, 2008. Author’s files.
[6] The
acute lack of historical precedent is of special relevance to
the nine-governorate “Shi‘i” region. See Reidar Visser, “The
Two Regions of Southern Iraq,” in Reidar Visser and Gareth Stansfield,
eds., An Iraq of Its Regions: Cornerstones of a Federal Democracy? (New
York: Columbia University Press, 2007).
[7] Letter 319 from
Vice President 'Adil 'Abd al-Mahdi to the diwan of the Iraqi presidency
council, February 26, 2008.
[8] Midhat
al-Mahmoud to Iraq’s council of representatives, August 1, 2007.
Author’s files.
[9] Jeremy
P. Carver to Nechirvan Barzani, January 29, 2008. Among other
things, Carver (head of the legal firm that procured the document
for the Kurds) claims that the opinion shows that the Iraqi draft
oil law is constitutionally “void.” Author’s files.
[10] See,
for instance, Agence France Presse, February 13, 2008.
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