R Karam, Salam Kamel (2017) The Constitution as Unfinished Business : The Making and Un‐Making of Power Relations in Iraq, 2003‐2010. PhD thesis. SOAS University of London. http://eprints.soas.ac.uk/26160 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. The Constitution as Unfinished Business The Making and Un-Making of Power Relations in Iraq, 2003-2010 Salam Kamel Karam Thesis submitted for the degree of PhD 2016 Department of Politics and International Studies School of Oriental and African Studies, SOAS University of London 1 Declaration for SOAS PhD thesis I have read and understood regulation 17.9 of the Regulations for students of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed: Date: 11 May 2016 2 Abstract This thesis adopts what it calls a socially embedded definition of constitutions. It argues that while conventional wisdom views constitution-making as a higher track of law making and emphasises the potential contributions of constitutions to peace, democracy and stability, there are important methodological, theoretical and empirical reasons to evaluate institutional engineering in general and constitution making in particular with caution. The thesis directs analytical attention towards the causal effects of underlying historical and political conflicts, attitudes and commitments of actors involved in the process of constitution making, the strategic context wherein the process occurs, and the ongoing and unfinished aspects of constitution-making. It argues that constitutions are neither causes nor solutions to society’s problems. Rather than solving the structural conflicts of a society, constitutions frame them and assist in a key task of the state which is the creation of “zones of relative stability”, enabling the society to go on with its political struggle at the expense of future problems. Using a methodology of causal-process observation and in-depth knowledge of Iraq as a case study, through compiling evidence about the links between successive steps in a long causal chain, the thesis shows how the historical legacy of the Iraqi state and the contingent events at the time of constitution-making constrained the available choices for actors involved in the process of constitution-making. It shows how the Iraqi Constitution enabled the continuity of the political community in the teeth of structural conflicts by deferring contradictions in Iraqi society, by invoking constitutional disharmony, by not clearly defining the scope and limits of public organisations’ and officials’ authority, and by leaving critical matters outside any meaningful mechanism of authority. 3 TABLE OF CONTENTS ABSTRACT 3 GLOSSARY OF TERMS 7 INTRODUCTION 11 Theory, Methodology, and Sources 16 CHAPTER ONE 28 A Socially Embedded Definition of Constitutions 28 The Weaknesses of Theories of Constitutions as Solutions 29 How the Concept of the State Has Shaped Our Understanding 29 of Constitutions Four Ways to Understand Constitutions 34 A Socially Embedded Definition of the State and the Constitution 38 Constitution-making and Identity Politics in Iraq 43 CHAPTER TWO 52 The Causal Effects of the Underlying Conflicts 52 State and Society in Iraq 55 The Legacies of the Iraqi State 55 The Iraqi Opposition and the Narrow Scope of Iraqi Politics 65 The Internationalization of Iraqi Opposition and the Birth of Federalism 68 The Preinvasion Context and the Narrow Terrain of Iraqi Politics 74 Conclusion 82 CHAPTER THREE 91 Competing Visions of the Constitution and the Iraqi State 91 4 Competing Visions of the Constitution and Constitution Making in 94 Post-Saddam Iraq Non-communal Visions: Constitution as Embodiment of Ideas, Norms and 94 Practices The Occupying Power: Constitution as Embodiment of Ideas, Norms and 97 Practices The Shia: Constitution as Embodiment of Norms through a Fundamental 103 Decision by the People The Kurds: Constitution as Instrument for Independent Principles 111 Conclusion 117 CHAPTER FOUR 125 The Making of the Iraqi Constitution 125 The Guiding Principles of Constitution Making in Iraq: TAL, 127 the Interim Constitution TAL and Deferral of Contradictions and Crisis Tendencies 131 The Guiding Principles of Constitution Making in Iraq: 134 The Permanent Constitution Disharmonies in the Iraqi Constitution and Federal Power 139 Relationships Federal Judiciary 140 Distribution of Authorities 144 Powers of the Regions 147 Conclusion 149 CHAPTER FIVE 153 Post-Ratification and the Development of Federalism in Iraq 153 Constitution Shaping and Being Shaped by Competing Shia 157 State Projects Centralist versus Decentralist 157 Constitution Shaping and Being Shaped by Competing Kurdish 168 and Central State Projects 5 Politics in Kurdistan 168 Framing the Baghdad-Erbil Struggle over Authorization and 173 Distribution of Power The Conflict over Oil and Gas 174 Decentralist versus Centralist Reading of Oil and Gas Provisions 175 The Failure to Enact a Hydrocarbons Law for Iraq 178 In the Absence of a Hydrocarbons Law 183 CONCLUSION 192 BIBLIOGRAPHY 199 6 Glossary of Terms Ahl al-Thiqa People of trust. In the Iraqi context, referring to a community or people of trust attached to Saddam Hussein, mainly comprising the Sunni Arab families and clans from the hometown of Saddam Hussein, Tikrit. Anfal Referring to the genocidal campaign against the Kurdish people (and other non-Arab populations) in northern Iraq, led by Saddam Hussein and headed by Ali Hassan al-Majid in the final stages of Iran–Iraq War. Asayish Kurdish secret police. Ayatollah Sign of Allah. In a Shia context, it is a high-ranking title given to Usuli Twelver Shia clerics. Those who carry the title are experts in Islamic studies such as jurisprudence, ethics, and philosophy and usually teach in Islamic seminaries. Badr Brigade The militia forces of Islamic Supreme Council of Iraq. Ba`thi Baathist. Da`wa Call. Referring the first Iraqi Shia political party, established at the end of 1950s. Dustur Constitution. Al-‘Itilaf al-`Iraqi al-Muwahad United Iraqi Alliance. Fadhila Basra-Based political Party in Iraq. Fatwa Legal opinion or learned interpretation that a qualified jurist can give on issues pertaining to the Islamic law. Goran Change. A political party in Kurdistan. Hay’at ‘Ulama Association of Muslim Scholars in Iraq, founded in 2003. al-Muslimin 7 Hawler City of Erbil. Hawza A seminary where Shia Muslim clerics are trained. In Iraqi cobtext, referring to learning institution of Najaf. Hujjat al-Islam Authority on Islam. In Shia context, the title is awarded to scholars. It also indicates a status in the hierarchy of the learned below Ayatollah. Hukumat Harimi Kurdistan Regional Government. Kurdistan Ijtithath al-Ba`th Referring to a policy undertaken in Iraq by the Coalition Provisional Authority and subsequent Iraqi governments to remove the Baath Party's influence in the new Iraqi political system. Iqlim al-Wasat wa-l-Janub Referring to ISCI desire to create a super region of the nine Shia dominated provinces in Iraq. Isnads Referring to Tribal support councils, created by Prime Minister Maliki, throughout much of the south of Iraq. The Isnads were modelled on the Sahwa (awakening) movement in Sunni areas. Jabhat al-Tawafuq The Iraqi Accord Front. Also known as Tawafuq, is an Iraqi Sunni political coalition created in 2005, to contest the December 2005 general election. Jaish al-Mahdi Mehdi Army. The militia forces of Muqtada al-Sadr. Lajna al-Dusturiya Iraqi Constitution Draft Committee. Lajna al-E’dad Dustur Iraqi Constitution Revision Committee. Listi Kurdistani The Kurdistan List, is the name of the electoral coalition that ran in the Kurdistan Regional Government parliamentary elections in Iraqi Kurdistan in July 2009. The Kurdistan List represented a coalition of the two main ruling parties in Iraqi Kurdistan, namely the Kurdistan Democratic Party and the Patriotic Union of Kurdistan. Mahkama al-Ittihadiya Federal Supreme Court of Iraq. 8 al-‘Ulya Majlis al-A’ala Abbreviation of Islamic Supreme Council of Iraq (ISCI). Majlis al-Hukm Referring to the 25-member Interim Governing Council, created in 2003. Majlis al-Nuwwab Referring to the Iraqi Council of Representatives (Parliament). Marja` In Shia context, a scholar and source of emulation. al-Matbakh al-Siyasi Political Kitchen. In Iraqi constitution drafting context, referring to a group of Shia and Kurdish leaders who decided over contested issues without involvement of fifty-five members of Constitution Draft Committee. Muhasasa Quota-sharing. In the Iraqi context, it has become associated with the particular formula of ethno-sectarian power-sharing government that was established after 2003. al-Musalaha al-Wataniya Referring to reconciliation efforts in Iraq after 2003. al-Mu’tamar al-Watani National Congress. Referring to the initiatives of some Iraqi politicians to create a new Iraqi leadership through a national congress. Party Abbreviation of Kurdistan Democratic Party (KDP). Peshmerga Kurdish security forces. Qa`ima al-‘Iraqiya Iraqi List. Political party list in the Iraqi National Assembly election, 2005, consisting of mainly secular Shia, and led by Iyad Allawi.