Over the Thanksgiving holiday I came across an article in the New York Times about the problems with passing an electoral law in Iraq. The issue is that due to the delay in getting an electoral law passed, national elections will not be held by the constitutional deadline of January 30th. How did one Kurdish lawmaker respond when asked about the legitimacy risks of holding the election later than the Constitution demands? "So what? Nothing in Iraq is very legitimate."
This comment could be glossed over and explained as just one frustrated Kurdish lawmaker being overly glib. The problem is this: he has a point. The way in which Iraq's Constitution was drafted back in 2005 raises questions of legitimacy.
Notables from the Sunni community were purposefully excluded by the United States and the 'powers that be' in Iraq (ISCI-Da'wa alliance, PUK-KDP alliance). Significant power brokers deemed too close to the insurgency or too close to the previous Ba'thist regime were excluded from the table. So were grass roots Shi'i power brokers like Muqtada al-Sadr. The result was a Constitution that lacked legitimacy since it was mainly crafted by people who had good relations with the US and who often had little grass roots support. Moreover, major issues like the role of federalism and the relationship between religion and state had already been hammered out in the Transitional Administrative Law (TAL) of March 2004 (which had even less legitimacy) and were not amendable. The point is that the legal and normative parameters outlined by the Constitution are not seen as set in stone. They're seen by large parts of the population as illegitimate because they were included in the Constitution under pressure from the Bush administration and in consultation with unrepresentative delegates.
"But the crafters of the Constitution in 2005 were elected representatives," you say. They may have been technically elected, but the whole process was put in motion by an unelected body that had severe legitimacy problems from the very beginning (the Iraqi Governing Council). Moreover, TAL had put so many of the highly contentious issues in such a straightjacket, there was hardly anything left to hammer out by the 'elected' representatives in 2005. Even the highly toxic issue of Kirkuk was kicked down the road.
The point is that the government of Iraq still faces significant legitimacy issues. The Constitution is not taken seriously - even by the Kurds, to whom the Constitution is rather generous. Many major players - including the Prime Minister - want significant parts of it amended, which opens up a big can of worms because of the super-majority required to do any such thing. The electoral law crisis is exposing what the Kirkuk crisis has already exposed: the Iraqi Constitution is not capable of solving Iraq's thorniest of issues.