World View/Paul Gillespie: The Iraqi exercise in constitution-making vividly illustrates a paradox at the heart of all such exercises: while the constitution's legitimacy arises from the sovereign power of the people, it is the constitution itself which defines who the people are and how its will should be expressed.
The problem is especially acute in Iraq, following the decision this week by the majority Kurdish and Shia groups in the drafting committee and the parliament acting as a constituent assembly to put the document to a national referendum on October 15th over the objections of Sunni representatives.
Iraqi society's deep divisions were then accentuated by the drowning disaster which killed nearly 1,000 Shia pilgrims in Baghdad.
Will it be possible to hold the Iraqi state together in the face of such divisions, or will it break up in a civil war, with huge consequences for neighbouring states and regional stability?
Sunni backing for paramilitary resistance against the US-led occupation forces has been reinforced by this outcome, since the message drawn is that politics does not work if such objections are ignored.
But it is wrong to conclude that the constitution-making exercise is without value because it is conducted under an occupation unable to deliver elementary everyday security and infrastructure.
There is much that is good in the draft document. It reflects a genuine political process over the last year, however imperfect it remains. And quite possibly it will be rejected in next month's referendum by a combination of Sunni and Shia forces in Baghdad and the central region who share fears that, in a loose federation, they would be starved of the oil revenues concentrated in the Kurdish north and Shia southern region of Iraq.
The rebellious Shia cleric Moqtada al-Sadr, whose main base is in Baghdad and many of whose followers were killed in the disaster, is campaigning against it. By making common cause for demands for a renegotiation to strengthen central powers, such a combination would create more time for political deliberation. This was frustrated by pressure from Washington that it work to an artificial deadline imposed by President Bush's desire to declare the process a success and announce a scaling down of the US military presence next year before mid-term elections. More time would allow demands that a timetable for US withdrawal be agreed.
The draft constitution's preamble begins grandiloquently: "We the sons of Mesopotamia, land of the prophets, resting place of the holy imams, the leaders of civilisation and the creators of the alphabet, the cradle of arithmetic: on our land, the first law put in place by mankind was written; in our nation, the most noble era of justice in the politics of nations was laid down; on our soil, the followers of the prophet and the saints prayed, the philosophers and the scientists theorised and the writers and poets created".
It goes on to recall the major acts of resistance against Saddam Hussein, the January 30th elections this year which set up this process, and then uses the four famous words with which most of the 100 or more constitutions written or rewritten in the last 25 years have begun: "We the people of . . . " - in this case Iraq - "newly arisen from our disasters and looking with confidence to the future through a democratic, federal, republican system, are determined - men and women, old and young - to respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism".
The document defines basic principles in chapter one. Islam is the "official language of the state and is a basic source of legislation". Iraq is a "multiethnic, multi-religious and multi-sect country" and "its Arab people are part of the Arab nation". The Baath party is banned and "will not be allowed to be part of the multilateral political system in Iraq". Chapter two sets out rights and freedoms, saying Iraqis "are equal before the law without discrimination because of sex, ethnicity, nationality, origin, colour, religion, sect, belief, opinion, or social or economic status". Chapters three and four define the powers of the federal legislative and executive authorities, chapter five those of the regions, while chapter six sets out final and transitional guidelines, including how to amend it.
Three major objections have been made to this draft constitution. The federal balance between the centre and provinces is too loose and ill-defined, according to the Sunni representatives. It could deprive the central region of funds and was driven by an opportunist rush to settle demands from southern Shias who have close associations with Iran. The second objection, from secular Iraqis and women afraid of being oppressed by Shia fundamentalism, says there are insufficient guarantees of their rights in the document. A third criticism, common in the Arab world, expresses fears that the document's logic moves more towards disintegration than unity.
Noah Feldman, a law professor at New York University and a former adviser on constitutional law to the provisional Iraqi government, sharply criticised the Bush government's intense pressure on the negotiators to reach a deadline without bringing the Sunni representatives along with them, in the International Herald Tribune.
As he puts it, "a constitution is just a piece of paper, no better than the underlying consensus - or lack thereof - that it memorialises". This touches on the constitutional paradox concerning the relationship between legitimacy and peoplehood - much of which arises from the US experience of constitutionalism. An accompanying cartoon has a US diplomat say: "This is like America 200 years ago" and a Sunni representative reply: "Right. A constitution, and then civil war".
In the words of Joseph Weiler, another constitutional expert (on Europe) at New York University: "The empirical legitimacy of the constitution may lag behind its final authority and it may take generations and civil wars to be fully legitimised".
Successful constitutions, which are later idealised, are often arbitrary and contingent on acts of original self-definition full of political risk. Feldman concludes: "If Iraq adopts a constitution that reflects a profound and unresolved national split, violence and eventual division of the nation will follow. Ordinary Iraqis and American soldiers will be the losers. So will the ideal of constitutional government."