Such a constitutional amendment would have to address both ways in which the gaps in the constitution have contributed to the current deadlock. First, they would have to rectify the flaws in the procedures related to the elections and the formation of a government by mandating that the preceding parliament and presidency step down at a certain point. They would have to clearly define who can form a government and when, establish time limits on how long a party can try to form a government, and provide for a new round of elections if a government has not been successfully seated after a set period of time.
The second matter that such an approach would have to address is the concentration of power within the Iraqi executive branch. The Obama administration is already pursuing this, but its current tactic—encouraging the Iraqis to deal with the problem without laying out a U.S./UN vision and doing so via legislation, rather than a constitutional amendment—may not produce the kind of far-reaching changes necessary to address the actual issues. Here the most useful and most important thing that could be changed in the constitution would be to restore veto powers to the Iraqi president and make him (not the prime minister) the commander in chief of the armed forces. This would also mean that the president, rather than the prime minister, would be responsible for naming and relieving senior military officers and the ministers of defense and interior.
Doing so would create a real division of power between the president and the prime minister. The president would then have responsibility for security affairs, and the prime minister would have responsibility for the economy, domestic politics, energy and foreign policy. It would prevent the prime minister from creating military commands and formations outside the formal chain of command, a current practice that has raised considerable fears over the political use of the armed forces by the prime minister. Indeed, such a change would go a long way toward ensuring that the Iraqi security forces remained professional and apolitical—that they stayed “outside” of Iraqi politics and therefore able to play the role of disinterested guardian of Iraqi democracy originally envisioned for them. The prime ministership is an inherently political position, conjuring a constant temptation to politicize the military, whereas the Iraqi presidency was always meant to be a figure “above politics,” the head of state who represented the entire Iraqi people and could help the system weather any political crisis. It is thus with the presidency that the Iraqi security services belong. Shifting the security services to the presidency and restoring the president’s legislative veto would create a powerful president who could balance the prime minister. It would also create a second position of great power and prestige that should be attractive to both Maliki and Allawi, thereby potentially easing their ability to form a government—jointly or separately.
As noted above, the U.S. government is already encouraging the Iraqis to reimagine their executive branch to address both of these problems. However, Washington has so far shied away from pushing for constitutional amendment in the belief that less is more. Again, for now, it is reasonable to try this approach, but the Iraqis have not yet responded as hoped and there is reason to fear that it may not be enough to work. In the past, Iraqi prime ministers have been able to stymie efforts to limit their power, and have undermined other powerful figures and entities created as checks and balances because the constitution grants them so many powers, and leaves too many gaps that a determined prime minister can exploit.
Because of the importance of this moment and these elections—Iraq’s second major round, traditionally the key to democratic success or failure, and the first after the end of the civil war—Iraq will never have a better moment to address the many residual problems in its constitution. If the Iraqis cannot form a government by the end of Ramadan, it will create an obvious political opportunity to make far-reaching changes in a way that will be far harder or more unlikely in future. At that point, the United States and our UN partners would do well to seize that moment to give Iraq one last, best chance to develop into a stable democracy.
Kenneth M. Pollack is director of the Saban Center for Middle East Policy at the Brookings Institution. He recently traveled to Iraq where he met with key Iraqi political leaders, as well as senior UN officials and senior American military and civilian leaders.
1 For a description of the problems that have produced the deadlock see Kenneth M. Pollack, “The Political Battle in Iraq,” The Brookings Institution, June 30, 2010, available at http://www.brookings.edu/reports/2010/0630_iraq_trip_pollack.aspx.
2 Because of the fragmentation of the current Iraqi parliament and the absence of strong ideological divisions among the different Iraqi political parties—who are far more interested in power, patronage and personalities than specific political programs—it is likely that whenever a candidate is granted first right to form a government, a great many of the smaller parties will sign on if only to ensure that they get the best cabinet positions and that they are not excluded from power in the event that the candidate is able to put together a government. This makes it reasonably likely that whoever gets to go first will be able to form a government simply by being able to reward a great many small parties, all of whom are determined to get a seat at the government table to ensure patronage for their constituents.