Federalism For Postwar Iraq:
How Federalism May Make Democracy Work

By ALEC WALEN

Thursday, Apr. 10, 2003

Once the war in Iraq is over, the real difficult task will begin: winning the peace. For the war to have been worth the cost in lives, injuries, emotional trauma and economic resources, on both sides, Saddam Hussein's brutal regime must be replaced by a legitimate, democratic, human-rights-respecting government.

The Bush administration is clearly sensitive to the need to minimize the duration of a U.S. led military government, and to turn over authority to an interim Iraqi government as soon as order can be reasonably secured. This goal raises a number of questions: What role will the United Nations have in shaping the new government? What influence will the U.S. have on the new government? Who will be invited to form the new government?

My focus here, however, looks one stage further down the road: What sort of constitution will be adopted under it? In particular, how can a constitution be framed to establish a viable, stable democracy in Iraq?

This is not a straightforward question, as there are reasons to worry that Iraq is not fertile ground in which to grow a democracy. Moreover, there are reasons to doubt that all the major players in the Bush administration are fully behind President Bush's claim that the U.S. intends to establish a democratic government in Iraq.

Democracy's Threat to Stability: Three Basic Reasons for the Threat

There are three primary reasons why democracy threatens stability in Iraq.

First, if Iraq were to adopt a democracy based on proportional representation, that would likely bring about a radical shift in power. The majority of Iraqis are Shiite Muslim Arabs who live primarily in the south of Iraq. Saddam Hussein's regime is drawn from the Sunni Muslim Arab minority in the central region of Iraq. Instituting democracy based on proportional representation will likely shift power from the Sunni Arabs to the Shiites. That raises the risk of reprisals by Shiites against former Ba'ath party members, and perhaps Sunni Arabs in general, for years of oppression. It also raises the risk of resistance to the new government on the part of those desperate not to lose power.

Second, Iraq's neighbors do not want real democracy in Iraq, and may seek to interfere with or undermine it. First, the neighboring Arab regimes - Syria, Jordan, Saudi Arabia and Kuwait - are all Sunni regimes, and they do not want to see the emergence of a powerful Shiite Arab voice. Second, none of the neighboring Arab regimes is meaningfully democratic, and each has reason to worry that a functioning Arab democracy might destabilize its own authoritarian regime.

Third, the democratic movement in Iraq is interested not only in establishing a democratic government, but more specifically in establishing a federal democratic republic. But a democracy with a federal structure threatens to fragment Iraq.

This third point calls for elaboration. Why does the Iraqi movement want a federal structure for democracy, and why would such a structure threaten the stability of Iraq?

Reasons Why the Democratic Movement Supports Federalism

The Democratic Principles Working Group ("DPWG") is a group of Iraqi exiles originally pulled together by the U.S. State Department's "Future of Iraq" initiative. In November 2002, the DPGW published its "Final Report on The Transition to Democracy in Iraq." This report declares that "no future state in Iraq will be democratic if it is not at the same time federal in structure." It then defines federalism as "the permanent and constitutionally prescribed allocation of certain powers to the provinces."

Federalism does not, at this point, exist in the Arab world. Nonetheless, the DPWG offers two types of reasons for adopting a federal system in Iraq.

First, it offers a pragmatic consideration. The Kurds will not agree to stay in Iraq without some form of federalist protection. At the same time, the given the problems of secession, being in a federal Iraq would be better for the Kurds and others in the region than trying to secede.

Second, the DPWG gives an argument based on democratic principles. "The fundamental principle of human rights is that the rights of the part - be that part defined as a single individual or a whole collectivity of individuals ... - are inviolable by the state. ... Majority rule is not the essence of a federal democracy; minority rights, or the rights of the part... are." In other words, groups like the Kurds feel that their rights, both as groups and as individuals, will be protected only if the provinces take power away from the central government.

Federalism's Threat to Stability in Iraq

Unfortunately for the DPWG, federalism in Iraq seems to carry a huge cost: devolving power to the provinces threatens to lead to the disintegration of Iraq as a country. Each province could grow to feel that it has its own distinct identity, and that it would be better off governing itself without any restrictions from the center.

The dangers of fragmentation are quite real. Fragmentation would likely result in a series of bloody of civil wars, made especially grave as groups struggle to control Iraq's vast oil reserves. In addition, the secession of the Kurds in particular would likely draw Turkey into the fray. Turkey has a large Kurdish population of its own, and it does not want to see an independent Kurdistan on its borders, tempting its own Kurds to try to secede in order to create a greater Kurdistan.

Given these dangers, it is no surprise that the State Department has not embraced the DPWG's Final Report. Indeed, the State Department has of late been pushing a plan that actually looks to keep the bulk of the current Iraqi administration, minus the leading figures, in place.

This seems to leave Iraq between a rock and a hard place. On the one hand, the democratic movement's plan seems to threaten the stability of Iraq. On the other hand, the State Department's plan would not amount to meaningful regime change. And regime change that merely takes out some leading figures, that does not create fundamental democratic reforms, would not be worth the costs of the war, a war waged under the name "Iraqi Freedom."

The Stabilizing Potential of Federalism

Fortunately, I believe this is a false dilemma. I want to propose here that federalism, properly designed, provides a way to avoid it.

Federalism can strike a reasonable balance. Such a balance would ensure that the provinces have sufficient autonomy to feel confident that they will not be oppressed by the national government. It would also ensure that the national government has sufficient strength that it will not collapse.

The key to federalism being able to strike this balance is a bicameral national legislature.

Why Iraq Needs a Bicameral Legislature

Federalism is fundamentally concerned with the division of power between central and local authorities. In the U.S., debates about federalism tend to focus on whether and how much to limit the power of Congress vis-a-vis the states. But in framing federalism only in those terms, we overlook the fact that having a bicameral legislature is also a feature of our federal form of government.

The Senate was designed as the part of the federal government that would represent the interests of the states. Thus while the House of Representatives provides roughly proportional representation to each U.S. citizen, the Senate provides exactly equal representation to each state.

Using a bicameral legislature in the design of a federal system is not unique to the United States. Many European countries composed of smaller states have also adopted a bicameral legislature.

Germany, for example, was united out of many different German-speaking states in the Nineteenth Century. Its present states are mostly different from those original states, but it is still composed of member states. And its present government contains a bicameral legislature in which the upper house comprises representatives of the various German states. The upper house can both propose certain kinds of legislation, and has a variety of types of veto powers to deal with legislation passed by the lower house. Thus it, like the U.S. Senate, serves to protect the interests of the states in the national legislature.

The point I want to emphasize is that in federal systems, both in the Unites States and elsewhere, states or local governing districts can have power in part through their participation in a national legislature. Of course, part of their power must consist in their ability to pass laws governing matters of local concern. But the ability of provinces to protect their interests does not require that the provincial governments have the kind of power that is inconsistent with a stable national government. Their interests can be protected, even while the national government remains strong, as long as there is an upper house with the power to veto oppressive national legislation.

The role of an upper house is something that the DPWG neglected to mention. But it is crucial to explore how bicameralism could be used as a mechanism by which regional governments can protect their interests without having a degree of autonomy inconsistent with a stable national government.

This was an issue the U.S. wrestled with when the original Articles of Confederation proved to give too much power to the states and insufficient power to the national government. Our current Constitution was designed to remedy that failure in part with a bicameral legislature. Though Iraq is certainly very different from the U.S. in the first decade after its independence from England, there is good reason to think that the lessons of how to build a stable federal government have general applicability.

Federalism as a Check on Majority Power in Iraq

As the DPWG noted, protection of minority rights against majority abuse is "the essence of a federal democracy." This thought too can be traced back to the time of the founding of the U.S.

Consider the remarks of James Madison in the Federalist Papers. In Federalist 10, Madison claims that the most important advantage of a well constructed Union is "its tendency to break and control the violence of faction." What he had in mind by the "violence of faction" is the tendency of one group, united by shared interests, to do violence to other groups that threaten its interests.

If one faction has the ability to gain control of a society - as the Ba'ath party did in Iraq - it is likely to abuse its power to pursue its own interests. But if many different factions, in shifting coalitions, are competing for power, Madison reasoned, then no one faction will be able to abuse power. Moreover, members of all factions will learn to respect the value of checks on power because, from time to time, at least in certain regards, all will be members of factions that are out of power.

Establishing a federal government in Iraq should give rise to such a system, one with many different factions in shifting coalitions. Each new, or newly empowered, province will form a faction of its own. If power is held largely at the national level, then each will compete for power on the national stage, rather than look to secede. If there are many provinces, and none is distinctly more powerful than the rest, then each will have to form coalitions with each other to have access to power. Moreover, if the provinces themselves are not monolithic, but have a number of different concerns, then over time, these coalitions will shift. New coalitions will arise to reflect new developments in what matters most to the people in the various provinces. And with such shifting coalitions, the opportunity for one faction or one coalition to lock onto power will be reduced.

In addition, if the provinces do not line up neatly with the ethnic and tribal factions that already exist, then individuals will develop competing loyalties. Shiites, for example, may develop overlapping interests with Sunnis in their province, interests that would temper any interest the one group might have in pursuing a religious agenda that the others would consider oppressive. The new, or newly empowered, provinces will thus form cross-cutting interest groups that will further undermine the ability of any one faction to wield the kind of absolute and abusive power that characterized the Iraqi government under Saddam Hussein.

The one faction that those uneasy with democracy in Iraq most fear is the Shiite majority. Many fear that they would have a religious agenda influenced by Iran and its oppressive Shiite theocracy. But many also fear simply that the newly empowered Shiite majority might to seek to oppress the Sunni minority as they themselves had been oppressed.

Were the legislature based solely on proportional representation, these fears might be reasonable. But if the Shiite provinces do not outnumber the non-Shiite provinces, and if each province has equal representation in the upper house, then there will be a check on the ability of the Shiite majority to seek to oppress the minority populations of Iraq.

An independent judiciary, enforcing a constitution with protections for basic rights and liberties, would, of course, provide another kind of check on majority abuse of power. But a political check, based in an upper house of the legislature, could be even more important, especially in a country that has not history of an independent judiciary. And this check should, in turn, in the long run, reinforce the value of democracy in the eyes of both Iraqis and others in the region.

Reasons Not to Create Three Ethnic Provinces

Among the most basic concerns in establishing a federal system is determining what the underlying units would be. It might seem tempting, given that there are three large ethnic groups in Iraq, to try to divide Iraq into three provinces: one Kurdish, one Sunni Arab, and one Shiite Arab. But the DPWG Report gives four good reasons not to pursue such a structure.

First, such a system would be difficult to construct because the ethnic groups are not that well concentrated in discrete territories. There are Kurds in the middle section and Arabs in the north.

Second, many people have been ethnically cleansed or moved from one region to another. It would be difficult to decide whether current or former residents of a region would get to claim it, and decisions one way or the other would likely spark considerable animosity on the losing side.

Third, such a system would be unfair to the smaller but not insignificant ethnic groups such as Assyrians, Chaldeans, Turkmen, and Armenians who would not get a state of their own.

Fourth, such a system would reinforce the ethnic divides that threaten to fragment Iraq in the first place.

To these four points can be added the observations that it would be hard to achieve the virtues of federalism - the many different factions in shifting coalitions, operating in an upper house of the legislature - if there were only three large, ethnically based provinces.

A Better Solution than Three-Province Federalism

A better solution would be to use geographical territories that are not drawn as attempts to capture ethnic identities. Here is one tentative suggestion: look to the governorates or administrative units that have been used in Iraq during the past century.

Currently Iraq is divided into eighteen governorates. Under the 1924 constitution, Iraq was divided into 14 administrative regions. Without knowing far more than I do about these regions, it is impossible for me to judge which would be a better foundation for a federal system. But at an abstract level, at least, both provide enough units to create a meaningful upper house in the legislature. And both should provide enough and sufficiently small units that there is little chance that one unit would be able to dominate the rest.

Ultimately, the design of a federal system for Iraq would have to be worked out by some form of constitutional convention, held under an interim government. My aim here is not to propose details for the federal system. Rather, it is to suggest that a federal system, if properly designed, could provide a middle road between stability without democracy and democracy without stability.


Alec Walen teaches philosophy of law at the University of Baltimore. He is currently working on a book on Intention and Permissibility. His email address is awalen@ubmail.ubalt.edu.

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