A blog about thoughts, comments, and proposals inspired by the basic principles of human dignity and the sovereignty of the people, for examples, a process to start the best possible and sustainable democratic government in Iraq, and a robust peace process for Israel-Palestine

Tuesday, August 12, 2003

What Iraq needs: a participatory and transparent constitutional process


Using the paradigm of participatory democracy to succeed where diplomacy obviously fails, an analysis and proposal by Troy Davis, democracy engineer, President and CEO of the NY-based startup think-tank World Citizen Foundation, http://www.worldcitizen.org, email: troydavis@post.harvard.edu

Participatory constitution making is today a fact of constitutional life as well as a good in itself. Despite challenging difficulties of definition and implementation, a democratic constitution-making process is, in the words of African observer Julius Ivonhbere, "critical to the strength, acceptability, and legitimacy of the final product." Professor Vivien Hart, Senior Fellow, US Institute of Peace, Washington, D.C. Democratic Constitution Making: a Special Report

1. Iraq needs a transparent and democratic constitutional process

Introduction: no universally legitimate and independent criteria

Creating a democratic government in Iraq following a controversial war and with the country under foreign occupation for a legally undefined time presents a paradox for the Coalition Provisional Authority (CPA) of the U.S. and U.K.

The paradox is that the CPA wants to establish democracy, but a democracy that satisfies its own arbitrary criteria rather than the criteria of the Iraqi people or independent democracy criteria (for the good reason that no such criteria exist today, or at least no criteria that are universally known and agreed to),. The inherent tension between the very concept of representative self-government defended by Messrs. Rumsfeld and Wolfowitz and the wish to "control" the birth of the new democracy has presented policymakers with an insoluble problem so far. The contradictory and changing answers have not prevented a worsening of the situation in Iraq, because these answers are based on faulty premises, a misunderstanding of democratic psychology and an internal lack of logic.

The unspoken assumption

The simplest scenario, that all foreign powers simply leave Iraq and let the Iraqis establish a new government themselves with no interference (as for example the U.S. allowed the French after 1945 in spite of earlier plans for a Germany or Japan-style military occupation), is not considered an option today. But any serious survey of options must include it. The fact that this option is not seriously discussed publicly indicates an artificial policy narrowing and lack of proper debate. It could be that a lucid Realpolitik analysis of national security would conclude that the West would be better off (politically, militarily, financially, economically) with a complete withdrawal, rather than being dragged into an expensive and deadly quagmire. The power of this unspoken assumption is so strong that even antiwar France and Germany who suffer dearly from the consequences of global instability do not publicly question it . Nor for that matter does the U.N. which on this issue does not provide moral leadership or imaginative solutions.

For instance, it is possible to make a good argument that the global war against terrorism would be helped more by an immediate withdrawal from Iraq than through continued occupation. This argument would probably have appeal across the political spectrum. It is symptomatic of the rising negative feelings about the war that in the US, military families, veterans and reservists have created an organization to Bring the Troops Home Now (http://www.bringthemhomenow.com/). The Cato Institute, a conservative think-tank in Washington argues for the same based on libertarian principles (Leave Iraq as Soon as Possible). In fact, the Cato Institute was a rare voice on the Right arguing consistently against a war (One Last Time: The Case Against a War With Iraq).

Critics might also say that the rational interests of the West, the health of the global economy, and the fight against terror, AIDS/SARS etc. should not be sacrificed on the altar of the hubris of a few (many commentators have reminded the public that hubris-fed overstretch is a common historical pattern, linking it often to analogies with Rome, Alexander the Great, Britain etc.). But to save face, the CPA needs to leave at least the rudiments of democracy and order.

And in the present state of Iraq, a civil war is not impossible either, so that speaks against immediate unilateral withdrawal.

Whether U.S./U.K. interests are better served by an occupation than withdrawal is still an open question. Today, the policy calculus discounts the real probability of a popular uprising that would force a humiliating ouster . Apart from bad politics, this discounting is dangerous and short-sighted for the U.S./U.K. administrations, both under fire for other war-related reasons.

On the present calendar of Ambassador Bremer, the first free national elections in Iraq are likely to take place in the middle of the U.S. presidential campaign, which is a huge political risk . What if the Iraqis democratically elect an Islamist government? President Bush would be caught in an impossible situation: either repudiate Mr. Rumsfeld and allow an Islamist (probably anti-American and nationalist) government in Iraq (Mr. Rumsfeld has said an Islamist government would not be tolerated), or repudiate the first democratic government of Iraq when the only positive consequence of the war everyone agrees on was to bring democracy to Iraq. The second option could start a full-scale uprising against the U.S. and could torpedo President Bush's re-election hopes.

The alternative, to artificially delay free elections in Iraq because of the internal political calendar of the U.S. creates many risks as well. The independent civilian mission sent by the Pentagon to Iraq in June to evaluate the situation concluded that the U.S. had only 3 months to fix the situation.

The political advisers to Messrs. Bush and Blair's may yet advise their bosses that their political future is better served by an honourable withdrawal after a successful war than by taking further risk down the road the CPA is now on.

But this article does not argue for an immediate withdrawal. The point is merely made to illustrate the lack of overall serious debate and of rigorous analysis of options, at least publicly.

A much better alternative and a way out exists, a win-win situation for all (but for a few bruised egos). To the uninitiated, this policy looks tantalizingly close to the existing one (which means that it easily can be said to the public that "it was always part of our plan", thus saving face for Messrs. Bush and Blair) but it is fundamentally different and comes from a radically different mindset.

The first priority is legitimacy

Optimal democratic engineering applied to Iraq focuses on the top priority: designing and implementing a process with maximal (unchallenged?) legitimacy to create a independent democratic government. Fortunately for the CPA, the ideal process also naturally minimizes risks for the U.S./U.K., which unfortunately today is not the case (some would say it is the opposite case despite good intentions).

The fallacy about current thinking in Iraq is about priorities. The first priority is not order or water or electricity. Or rather it is but these are impossible to achieve in a political environment perceived by most Iraqis to be illegitimate.

Democratic engineering theory predicts (and events have confirmed) these are contingent on the emergence of a governing authority that the Iraqi people considers more legitimate than any other possible one. Everything, from order to basic services, will be easier to re-establish if the Iraqi people trusts the government, and if it is not possible to use the excuse of political illegitimacy for aggressive acts.

Thus the first order of things is to start (and to be seen as starting) the most legitimate process possible. That will catalyze all the rest.

The priority then is to bridge the credibility gap, which is a composite of two elements: the trust deficit and the communication deficit. The trust deficit can be bridged via a consciously designed process that is universally perceived as inclusive and transparent. The main problem with present strategy is an internal contradiction that is recognized but for which the solution applied makes things worse rather than better.

That contradiction is that though the goal is a democratic Iraq, the hope is that this democratic Iraq not be Islamist or at least anti-Western, which is a real possibility. In an attempt to prevent that, the U.S. has already accepted many things which were unthinkable last year (i.e. accepting participation of the Communist party, or the Iran-based Supreme Council for the Islamist Revolution in Iraq, while downplaying Ahmed Chalabi, a former favorite of the Pentagon).

Micro-managing won't work and it is dangerous

The problem is that the preferred option of the CPA is to try to micro-manage the process and overtly or covertly find or choose "suitable" leaders. This will inevitably will be seen as anointing some people above others, which can even lead to murders, as with the case of the pro-U.S. Mayor of Hadithah who was killed by rifle with his son on 17 July. This micro-managing is a hopeless endeavour, even a dangerous one, for several reasons:

- it is too slow and inefficient (thus costing billions more and lives)
- it requires too much specific human expertise (that can go easily horribly wrong) and this human intelligence is very expensive,
- there is little guarantee that anyone so chosen will toe the line
- it forgets the simple truth that anyone seen as working with or chosen by the occupiers will have less political credibility than others (this will be emphasized of course by the ones not chosen who will carry their status like a badge of honour and claim only they are patriotic)
- it increases the chances that on the contrary, whoever is "approved" later distance themselves from the U.S./U.K. (or make a show thereof) to compete more efficiently with other politicians not chosen by the CPA
- it increases the chances of an anti-U.S./U.K. "rhetorical arms race" during future political campaigning
- It gives excuses for people to taint the political leaders with the brush of illegitimacy as was done on 21 July by the Shiite Imam Muqtada Al-Sadr concerning the Interim Governing Council appointed by the U.S.

Ultimately, political suitability or fitness is in the eyes of the beholder and Iraqis may have different ideas who is fit to lead them than the CPA does. An example is the report in the Arabic newspaper Al-Hayat (30 July 2003) that 4 groups (Shiites, Turkmen, Assyrians and Yazidis) demand different or additional representation on the Governing Council, and complain that the Turkmen are not familiar with those who represent them in that council.

The wedding cake model

Another model often spoken about (but internally incoherent) is the "wedding cake model". In this model (based on the West's bad experience in Bosnia when early national elections created top-level deadlocks and voting along rigid Bosnian, Croat and Serb lines), the idea is to hold first local elections, then regional and finally national elections, hence the image of a 3-tier cake. It is hoped that this will allow the emergence of untainted national leaders but this is more wishful thinking than probable.

This model has been partly disavowed by the appointment of an Interim Governing Council (IGC) but it is still discussed.

This model does not fulfil the requirement of bridging the credibility gap, and presents numerous problems, including fundamental problems of fairness and equal treatment under the law:

- it is very slow and does have enough symbolic power to counter guerrilla warfare today, and accusations that the CPA is really not interested in an independent democracy;
- it opens the door to future challenges (legal and political) as people get elected or selected in heterogeneous ways all over Iraq (e.g. people could start accusing others of being former Baathists, whether that is true or not, relevant or not);
- it allows local notables and warlords to take over the process with little checks and balances;
- it is no guarantee at all that clean leaders will emerge, which is the whole point of the model in the first place, as local Baathists could easily become elected, or people use spurious accusations for political gain,
- it does not guarantee legitimacy as was seen in Bassora, South Iraq when people outside the council attacked the credentials of those inside chosen by the British.
- Instead of promoting flexibility, it promotes rigidity, as it promotes local/regional kingmakers to emerge, who are less likely to be amenable to national deal-making and horse-trading between different groups, and therefore will strengthen differences rather then weaken them,
- and fundamentally, it resolves none of the urgent structural problems of Iraq: federalism vs. centralism, the role of religion in the state, and the rights of women and minorities.

The CPA seems to understand these difficulties, as Mr. Bremer postponed indefinitely the municipal election in Najaf that were planned by the local U.S. commander for 21 June. The reason given was that the election would be premature in the absence of proper electoral legislation and procedures.

A democratic Big Bang

Ideally, what is needed is a sort of "Democratic Big Bang" which quickly, durably and consensually sets the overall framework and rules, and from which all the rest then naturally follows. The ideal solution would be a quick process (no more than a few months) that by design and quasi-inherently allows the best leaders to rise to the top, and that rewards those leaders that are more moderate and democratic. This is a better way of getting good leaders and avoids the problems of Western choice.

What should this process look like? The design constraints are so numerous that there is little choice in its final design, which therefore makes it easier to figure it out. Once we list all the constraints, we need only follow them wherever they take us.

We take as premise that the goal is to as quickly and legitimately as possible create in Iraq representative self-government, i.e. constitutionally limited government based on the consent of the governed. This has been stated repeatedly by the U.S. and U.K., from Messrs Bush and Blair on down, and it is asserted time and again in UN Security Council 1483 (independent internationally recognized government).

Whatever process is used should be attractive from several standpoints: political, popular, emotional, intellectual. It should be popular and attractive to the media. It should be perceived as something evident, simple, honest, fair and straightforward (even if the implementation is complex). It should also create buy-in from Iraqi people, allow the emergence of a cathartic process to allow the Iraqis to heal from decades of trauma, and allow the Iraqi people to participate (directly and vicariously) to guarantee maximal support for the future constitution .

The litmus test is simple: what process engenders maximal trust and sympathy in Iraq and outside?

The following criteria are part of the design constraints of the best scenario:

- help to heal the extraordinary trauma which the Iraqi people suffers from after decades of tyranny, several war and a deadly embargo,

- help to weave patterns of trust between all the political groups and factions to minimize risks of things going out of hand when problems inevitably arise in the future on the interpretation of the constitution etc. (as Antoine de Saint-Exupéry would say, to help Iraqi parties and groups to "s'apprivoiser ")

- convince the Iraqi people, the Arab and Muslim world, and the public opinion of North America and Europe and other regions that that process is the best possible one under the circumstances, that it is just and fair.

- Minimize the risks of foreign intervention and terrorism in Iraq and in other countries, including the US and UK (by Al-Qaeda etc.).

- Be a pedagogical example and promote a culture of democratic debate among Iraqi groups and parties (and indirectly the entire Arab world)

- Avoid the perception that foreigners are imposing their views

- Repair intra-European and transatlantic ties

- And of course be able to convince the world public, intellectuals, the media, politicians of all countries and in particular, the U.S. Congress and the U.S. administration (including the Republican and Democratic parties, including the Presidential candidates).

The design of a political process can be seen in the same way that computer scientists design a program, except that political process are more difficult to implement. The best process that fits all these criteria is a formal and participatory transparent constitutional process.

The design constraints bring us to the following principles that should all apply to this participatory constitution-making (in no particular order):

- Speed (sooner rather than later)
- Duration (it should last whatever time is needed)
- continuity in time (it should be continuous to avoid losing political and psychological momentum, pausing only for rest or to unblock situations)
- transparency (for maximal perceived legitimacy and didactical effect)
- inclusivity (for maximal robustness and perceived legitimacy of the final outcome)
- neutrality (to avoid accusations of favouritism etc.)
- solemnity (to harness better impulses in human nature and make the final result more respected)
- symbolism (to satisfy the symbolic, psychological and spiritual needs of the Iraqi people)

All this seems obvious but it implies a mental leap of faith from the USA and UK. It implies trusting an open process (rather than secret backroom negotiations) and having a hands-off attitude once the process starts. It may be difficult for officials that are hands-on and control enthusiasts to change their modus operandi, but this is the price to pay for peace in Iraq and for fighting terrorism. But there is much that can be done beforehand to maximize the viability and credibility of the process.

A constitutional convention, although not a very efficient one, was part of the original plan of the CPA under General Jay Garner, but Paul Bremer cancelled that plan when he took charge. Instead he nominated the Interim Governing Council. But this did not kill the idea of a constitutional process. On the contrary, it gave it more impetus. Both Mr. Bremer and the IGC now agree that its major task apart from the immediate task of governing, is to create a viable constitution for Iraq.

The previous discussion now helps us define that constitutional process concretely .

The convention would include all the major groups; meet continuously for at least 2 or 3 months and discuss fundamental issues: structure of state (federalism vs. centralism), human, minority and women rights, role of religion. It would be televised/radio cast and would be seen/heard live by millions of Arabs all over the world. This live pedagogy of democracy would help the region more than threats.

It should be co-sponsored by many countries, including possibly Iraq's neighbours. The conventioneers would be between 500 and 600 and it could spend several weeks in the large cities: Bassora, Baghdad and Mosul or Kirkuk. To maximize public participation and increase the symbolism that the conventioneers serve the people, the Iraqi public (chosen by televised public lottery) could be invited to address the convention one entire day every week.

To give it a positive start and symbolize renewed and true transatlantic cooperation, the European Union could invite the entire convention to be launched at the European Parliament in Strasbourg, symbol of peace through democracy after millennia of wars, as well as pay for the entire convention (up to say one year for a start).

This transparency is the guarantee of its "calming" value and of the deep political debate that needs to take place. To be credible with Iraqis and the world, it should be co-sponsored by several countries, both pro and antiwar ones.

There are so many and profound questions to be resolved, that to sweep them, under the rug would be a disservice to the Iraqi people, leading in the worst case to future civil wars. These issues include the relationship of religion and the state, federalism vs. centralism, the rights of women and minorities. These must be thoroughly discussed today, and the constitution should reflect a deep consensus, or at least a very robust compromise. Transparency and public participation are the best way to strengthen the constitution. As in the U.S., Iraq needs a constitutional patriotism to surmount its difficulties. The goal is to create a constitutional patriotism strong enough that it will override dividing influences due to ethnicity, religion, tribalism etc.

The results of the convention would be a broadly discussed and respected interim constitution creating a provisional Iraqi government, and spelling out the steps for free elections, including a referendum and national elections for the second big phase: a parliament that will function as the final constitutional convention (as happened in South Africa).

Conclusion: What is needed in Iraq is a constitutional convention open to all groups and political parties, that starts as early as possible and lasts whatever time is needed to fulfil its goals. To be credible, allow direct and vicarious public participation, and play a pedagogical and didactical role in Iraq and in the wide Arab world, it should be completely transparent to the media, televised and radio broadcast continuously and directly (as well as taped, webcast etc.).

2. Israel-Palestine: a democratic peace process (full details on the website worldcitizen.org)

In April 2002, realizing that any roadmap created without the active participation of the people would be hijacked by extremists, we designed an alternative democratic process to the usual diplomatic one. Our proposal to democratize the process itself instead of focusing (like everyone else) on content is key to letting the silent majority on both sides that agrees to painful concessions to make a deal. The idea is to organize an open-ended joint assembly of equal number of Israeli and Palestinians that will discuss and decide all issues. The simplest variant are the two parliaments and governments in joint session. A better variant is to add to them other stakeholders: religious, civil society, intellectual, business, trade union leaders. The total for each side would be 200 and the total assembly of 400 plus helpers etc. would meet continuously until agreement was reached.

This is feasible because President Bush today has invested a lot of political capital in resolving the issue and because it is a neutral process. It is a bit like the process in Northern Ireland where most of the violence subsided as soon as both parties were included in a democratic assembly. Some extremists stayed out but by and large, it has held in spite of problems and crisis. We suspect the pattern would happen here too, and that this would help such breakthrough as Hamas agreeing to a truce.

But only those parties eschewing violence could participate in the joint assembly, which would probably split Hamas and weaken the extremists. There is intense internal debate about whether to eschew violence. The moderates in Hamas would be strengthened and would probably ultimately gain the upper hand, prodding a group to splinter (like the Real IRA did).

Experts know that Hamas etc. can only thrive if there is broad public support for it. If instead the public feels well represented in a joint Israeli-Palestinian Peace Assembly, many will stop supporting Hamas. And a part of Hamas (which is a political party) could sit in the assembly if it is elected and renounces violence. Better have the extremes under the tent than outside where they can wreak havoc.

In a more sophisticated variant, instead of just taking the sitting members of the Knesset and the Palestinian Legislative Council, the delegates would be elected in a special election for that purpose, during which they could campaign on their versions of the peace processes. This would provide much needed debate and allow the voters to select those reflecting their views, and increase their democratic mandate. This would show Israel's commitment to facilitating real elections in Palestine.

Outsiders would guarantee the security of the joint assembly. It is easier and more pragmatic to guarantee the security of a 400 people conference than to send NATO or U.S. troops in as an peacekeeping force as has been suggested recently (e.g. by Republican Senator John Warner). Believing in a top-down diplomat-negotiated peace is more utopian than creating a participatory process where politicians and stakeholders sit together.

Bottom line is: there is nothing to lose by holding this democratic peace process and everything to gain. It is very likely that US, European and Arab public opinion would support this fresh and hopeful idea. After 17 failed peace plans, the US cannot rely solely on a top-down imposed plans, wishful thinking and the goodwill of extremists. Peace must be built pragmatically using broad democratic means to neutralize the extremes and empower the silent majorities that want peace.