Constitution Making Under Occupation by Arato Andrew;

Author:Arato, Andrew;
Language: eng
Format: epub
Tags: HIS026000, History/Middle East/General, LAW018000, Law/Constitutional
Publisher: Columbia University Press
Published: 2009-03-13T04:00:00+00:00

Model of Government

From both the Kurdish ethnic and the liberal nationalist positions, powerful regions needed to be linked to Iraqi government through models of governmental power sharing, preferably of the consociational type. In my view, both empirically (think of India) and logically the links between the three dimensions (ethnically based federalism, strong powers for the units, and power sharing in the center) are tenuous, though there are many cases admittedly when all three vary together.157 The most I would concede is that ethnically based federalism in a context of strong divisions may require the additional protection of either strong unit powers or participation in the government of the center. Being protected twice over can be at times necessary but can also be superfluous. It can even be the source of strong new resentments, when a minority nationality that has successfully separated itself nevertheless controls the lives of the rest through guaranteed participation and vetoes.

The motives of the two major Kurdish positions in seeking power sharing could be slightly different to the extent that the ethnic nationalist seeks only to weaken while the liberal nationalist also actually wishes to participate in “Iraq.” Thus typically federalist forms of interlocking the region and Iraq could be more interesting for the liberal nationalist, if the proper formula for a second chamber could be found, a difficult task given the provincial organization of the rest of Iraq. For the TAL at least, the Kurds thus sought consociationalism. This was all the more so158 because the TAL did not grant their region all the powers they wanted, and thus they needed more powers in the transitional federal government. But perhaps because they did not all seek it for exactly the same reason (weakening versus participation), here their bargaining power was somewhat diminished. It was also diminished because the governmental structure, unlike the state structure, was produced by American drafters with some prejudices for strong government (the Governance Team) in interaction with the IGC, rather than in the two-sided format between Bremer and the Kurdish leaders.

Why did the latter not hold out for their preferred negotiating structure with respect to the institutions of the federal government? I can only offer some hypotheses here. First, this issue was far less important. Implicitly, the Kurds too must have realized that they were now seeking a third level of protection for their ethnic federalism. But the issue had some import, and the creation of a purely majoritarian central government for Iraq could have represented a great de facto danger to regional independence won de jure. Second, it is also very possible, though I have no proof, that since Bremer was going to impose the results of the state bargain on the IGC, it was understood explicitly or implicitly that some kind of balance between imposition and bargaining had to be kept if the Shi’ite majority was not to bolt the process. Thus either Bremer refused to give the Kurds more or the Kurds and their advisors knew where the limits

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