Part 5 Emerging Constitutions in Islamic Countries, 5.8 Constitutional Legitimacy in Iraq: What Role Local Context?

This chapter explores how it can be that, despite the attention of international institutions and experts in a particular constitutional process, and despite the application of international norms relating to democratic processes and fundamental rights, a constitutional process can give rise to a text that is incapable of achieving acceptance within the relevant country's borders. It argues that local context is the most important factor that should be considered if a constitution is to have any chance of acquiring some form of internal legitimacy in the future. The chapter begins by defining constitutional legitimacy and by arguing that although the 2006 Constitution has been endorsed by the international community, it was essentially dead on arrival in Iraq. It presents two case studies, to explain how this situation was brought about. The first shows how the drafters' lack of understanding of Iraq's institutional context led to the collapse of its system of parliamentary oversight under the 2006 Constitution, while the second shows how the constitutional drafters (and the internationals who advised and guided the constitutional process) had misjudged the relative popularity of the parties that were allowed to control the drafting process and that dictated the final text's content. Finally, the chapter attempts define the meaning of “local context” and identify its different components, particularly with a view to encouraging greater attention and understanding of local considerations and interests by all parties involved in a constitutional process in the future.