A Constitution Without Constitutionalism: Reflections on Iraq's Failed Constitutional Process

In this Article, Ambassador Feisal Amin Rasoul Istrabadi labels the drafting of the Iraqi Constitution in 2006 both “devastating” and “a failure.”  Ambassador Istrabadi, relying on his own intricate, first-hand knowledge of the constitution-drafting proceedings, argues that the Iraqi Constitution and its surrounding processes failed to engender a much hoped-for national cohesion. 

Ambassador Istrabadi posits that the Iraqi Constitution’s inability to rally the nation occurred primarily for two reasons.  First, the constitution-drafting process in Iraq was insufficiently organic.  The Constitution did not naturally develop from the needs of the Iraqi nation, but instead was too often dictated by the political and electoral interests of America’s own politicians.  Second, the drafting process began before the Iraqi political elites could build a mutual trust and develop a common vision for the future of Iraq.  Instead of making a compromise that would have temporarily preserved the status quo and given the Iraqis time to engage in confidence-building measures, the parties were forced into premature negotiations in a zero-sum environment. 

In analyzing these issues, Ambassador Istrabadi pays particular attention to the contentious and divisive question of federalism as it occurred during the constitutional negotiations.  He notes that the Iraqi Constitution ultimately adopted an extreme version of federalism, even going so far in some instances as to give regional laws of individual federations priority over national laws.  Using this federalism issue as a focal point, Ambassador Istrabadi frames his discussion of the various forces that negatively affected the constitution-drafting process.  Ultimately, these forces caused the Iraqi Constitution and its development to divide the country, rather than unite it.