Skip to comments.The Basics of the New Iraqi Constitution
Posted on 04/27/2003 7:57:47 PM PDT by Congressman Billybob
Basics of The New Iraqi Constitution
What are the essentials for the Iraqis to write a new constitution one that has a chance of taking root in that beleaguered nation?
First, we look at geopolitical realities. Some critics of nation-building in Iraq claim that it is "an artificial nation" with borders that were drawn "arbitrarily by colonial powers." Therefore, they conclude that it is unlikely to survive as a single nation. The critics ignore the fact that every nation in the world except Australia, New Zealand and Japan has at least one artificial international border, drawn as a result of military or political machinations.
Only those three, of the 193 nations in the world, have borders that are entirely natural the oceans and seas that surround them. For example, the United States conducted one war against Mexico and threatened another against Canada, before its respective southern and northern borders were fixed as they exist today. (As Casey Stengel used to say, "You could look it up.")
There are sound reasons for maintaining Iraq with its present borders, regardless of how arbitrary they may have been initially. Turkey seeks to encroach on northern Iraq, Syria on central Iraq, and Iran on southern Iraq and the Shi'ite areas of Baghdad. Only guaranteed borders for Iraq can shut down those respective foreign ambitions.
Accept the idea that Iraq should continue to exist. What form of government must it have, and how can that be guaranteed by its new constitution?
The religious and ethnic diversity and hostility among the people of Iraq is evident for all to see. What examples are there to show how these can be peacefully accommodated?
For an end to the religious battles and murders that have marked the history of Iraq, one conclusion is obvious. The new Iraq cannot be a theocracy, giving primacy to any religion, specifically to the Shi'ites comprising about 60% of its population, who until the American-led liberation were brutally repressed by the Sunnis under Saddam Hussein. How can any nation, through its constitution, prevent the majority religion(s) from dominating the minority ones?
Three examples are available. The first is the United States, which forbids any official religion and guarantees the freedom of worship of all religions. The example at the opposite end of the scale is India. Its constitution recognizes sixteen official languages, seven official religions (plus hundreds of official sects), and specifies in detail the powers of all its constituent states. That is why its constitution is the longest in the world, running to thousands of pages. Though India is a secular state, it guarantees the religious freedom of its citizens by explicit guarantees extended to each. Either the US or Indian method would work for Iraq.
The third good example is Switzerland. It is divided into Cantons, each of which is dominated by one of its linguistic, ethnic and religious components those are the Germans, French, Italians and Romanch. The Swiss government is a "loose federation" in which all its Cantons ("states" in the US, or "provinces" in many other nations) have a very high degree of autonomy, with only minimal functions reserved to the national government.
All three of these nations are constitutional republics. Though all are generally referred to as democracies, the constitutions of all three forbid a simple majority from changing the accommodations made for their religious or other minorities. All three constitutions forbid amendment except through various types of supra-majority decisions.
Exactly the same MUST be done in the new Iraqi constitution. For legitimacy, it must be approved by the people of Iraq. But it MUST NOT be a pure democracy.
Few nations in the world have ever attempted to establish themselves as a pure democracy. And all that have tried, have failed. Athens is cited as the first democracy. But it had a limited franchise. Only native citizens who were male and not slaves, were allowed to vote. They amounted to about 10% of the population. And even that small group still was sufficient to permit the demagoguery which led to its destruction.
From 447 to 404 B.C., Athens had its "Golden Age" under Pericles. It had democracy, peace, and prosperity. But when, by democratic vote, the Athenians banished General Alcibiades, it sealed its own doom. He left Athens, briefly joined the Spartans, and that contributed to the defeat of Athens in the Second Peloponnesian War.
Aristotle's treatise, On Politics, defined democracy as one of the corrupt forms of government. His conclusion was that any pure democracy would eventually vote itself into failure. He was right about Athens; he has been right since then, with the most recent example being France.
After its Revolution, France established a pure democracy. Its government quickly degenerated into a tyranny, with each new set of elected leaders feeding their predecessors to the guillotine. Applying this lesson to Iraq leads to the conclusion that Iraq should not be established as a pure democracy, but as a constitutional republic. Leaders might be elected democratically, but their powers must be circumscribed by the constitution. And the constitution itself must be protected by a supra-majority requirement for ratification of any amendment.
Again, the lessons of history are clear. As Madison, Hamilton and Jay wrote in the Federalist, the US Constitution should not be amendable "by the mere whim of a majority." The same applies to any constitution in any country, including Iraq. Only a constitution which offers protection to minorities of any type religious, ethnic, linguistic, etc. is worthy of the name "constitution." And only a supra-majority requirement can prevent any constitution from self-destruction at the hands of a temporary majority.
How long will it take for Iraq to develop and put in place a democratic government under a constitution that limits the powers of its government? Again, history provides solid answers. It took two years for Japan to put in place its new government under its new constitution after World War II. That process was, of course, strongly guided by General Douglas MacArthur. It took India two years to put in place its own constitution, with its elaborate protections for religions, languages, and its constituent states.
It took the United States less than a year to write its first constitution. But that constitution, called the Articles of Confederation, failed utterly within eleven years for political and economic reasons. That failure led five states to call the Constitutional Convention in Philadelphia in 1787. In turn, that Convention drafted the Constitution which, as amended, has remained in place longer than any other constitution ever written for any other nation in history.
The US provided in those events another critical example for those who will write the new Iraqi constitution. They should pay attention to the failure of the first American constitution.
There is no room for constitutional failure in Iraq. Its first effort must be successful. It does not have the luxury of a second chance or more, as the US and most other nations have had. If the first Iraqi constitution fails, Turkey's influence will reach in from the north, Syria's from the west, and Iran's from the east. Iraq will then have a tripartite dictatorship to replace the single one from Hussein. The historical example here is Lebanon.
Originally, Lebanon was accurately described as the "Switzerland of the Middle East." Its divergent ethnic and religious groups existed peacefully side by side. Despite its lack of oil, it was one of the most prosperous nations in that region. When it degenerated into guerilla warfare between those factions, Syria moved into the power vacuum that resulted. Syria still dominates Lebanon, and its troops occupy the Bekaa Valley, the center of agriculture and terrorism in Lebanon.
Notice I am not suggesting that Iraq would benefit from adoption of the US Constitution as is, suitably translated. That would most assuredly fail. I suggest that the Iraqis spend substantial time with the histories of constitution-writing, across many societies and across the centuries. It is a record mostly of failure, but from that the Iraqis can learn what not to do.
They should take their time. Two years is not an unreasonable time for such an effort. Furthermore, the reestablishment of Iraqi government for Iraqis should not be done from the top down. A democratic republic is best established from the bottom up. The Kurdish areas in the north already have a functioning elected government. Basra should be next, since it has a relatively homogenous population. Mosul and then Baghdad should follow, because the principles of multi-ethnic and multi-religious government must and can be worked out there.
Should the UN be involved in the process of Iraqi constitution-writing? Absolutely not. A majority of the nations of the UN have no use for religious or political freedom, or honest and fair courts of justice, or respect for basic human rights. Furthermore, some of its nations which are themselves highly civilized, have economic or political reasons for interfering in Iraq such as Germany and France.
Regardless of what the process is labeled, the umbrella of American and Coalition power should be the guarantee of Iraqi borders and Iraqi freedom of movement, of religion, of the press, etc., until the new Iraqi constitution is completed and a new national government is established and, most importantly, functioning. All criticisms opposing that policy should be summarily rejected.
Looking at history, the odds are against Iraq succeeding in establishing a constitutional republic on the first effort, and having it survive. The best chance they have depends on the Coalition maintaining the stability of Iraq until that moment. Coalition involvement in the peace is equally as important as its involvement in the war. The proper and circumscribed use of American power for a few years is essential to the long term success of Iraq.
And lastly, as for those who accuse the US of imperialism, those charges should be rejected summarily. As in Japan and Germany after World War II, after the war is won, and after the peace is won, the US will not only withdraw but provide such aid as is needed. Imperial powers do not voluntarily withdraw. Throughout history, no empire has ever shrunk by choice. Once the US withdraws from Iraq, it will prove, once again, that it is not an imperial power interested in empire.
The current "empire" of the United States consists of Puerto Rico, the US Virgin Islands, Guam, the Northern Mariana Islands and American Samoa. The largest of these, Puerto Rico, has repeatedly decided by referendum to remain a territory, rejecting both independence and a petition to become a state. Some "empire." Those who accuse the US of creating an empire are geopolitically ignorant. So they must learn the truth again, from the Iraqi history now playing out.
The first great task that America committed itself to in Iraq was the elimination of the brutal dictatorship of Saddam Hussein. Many lesser tasks remain, from restoring power and water to finding illegal weapons and patrolling the streets. Just one critical task remains helping the Iraqis arrive at a constitution which can establish an honest and effective government for all the Iraqi people one which can endure. Just as we rewrote the history of warfare in freeing Iraq, we must help the Iraqis rewrite the history of constitution-drafting in creating their own constitution.
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About the Author: John Armor practices law in the US Supreme Court and is a scholar of comparative constitutions. One of his books and two dozen of his articles are on constitutions.
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I think Freepers will find this interesting. It is a better analysis of the necessary framework than anything that has yet appeared in the print and broadcast media. The best prior piece is from George Will on 24 April, but his was too focused on the example of the US Constitution to the exclusion of lessons from constitutions of other nations.
Let me know what you think.
J / BB
If I may, however, at the risk of sounding like a Clymer, I hesitantly point out one submicroscopic fly in the ointment....Madagascar.
My interests are the opposite of yours. I was a physicist with advanced standing at Yale when I started. I came out as a liberal arts major with a passion for Constitutional Law. So now, physics is my avocation.
John / Billybob
1960: U.S. works to covertly undermine the new government of Iraq by supporting anti- government Kurdish rebels and by attempting, unsuccessfully, to assassinate Iraq's leader, Abdul Karim Qassim, an army general who had restored relations with the Soviet Union and lifted the ban on Iraq's Communist Party
1963: U.S. supports a coup by the Ba'ath party to overthrow the Qassim regime, including by giving the Ba'ath names of communists to murder. Soon after the U.S.-backed coup, Saddam Hussein becomes the head of the Ba'ath party. According to one account, "Armed with the names and whereabouts of individual communists, the national guards carried out summary executions. Communists held in detention...were dragged out of prison and shot without a hearing... [B]y the end of the rule of the Ba'ath, its terror campaign had claimed the lives of an estimated 3,000 to 5,000 communists."
1973-1975: U.S. supports Kurdish rebels in Iraq in order to strengthen Iran and weaken the then pro-Soviet Iraqi regime. When Iran and Iraq cut a deal, the U.S. withdraws support from the Kurdish rebels, denies the Kurds refuge in Iran, and stands by while the Iraqi government kills many Kurdish people.
September 1980: Iraq invades Iran with tacit U.S. support, starting a bloody eight-year war. The U.S. supports both sides in the war--"tilting" to one side or another at various times-- in order to prolong the war and weaken both sides, while trying to draw both countries into the U.S. orbit. The U.S. opposes UN action against the invasion, removes Iraq from its list of "terrorist" nations, allows U.S. arms to be transferred to Iraq, provides Iraq with intelligence on Iran, economic aid, and political support, and encourages its Gulf allies to lend Iraq over $30 billion for its war effort. Meanwhile, the U.S. also provides Iran with arms.
And I guess the sixth one's the charm, eh? No matter how much neocons cheer on a 'Constitutional Republic' in Iraq, especially considering this nation doesn't even have one anymore (and hasn't for many years), it just won't work. No, it will amount to this government helping to establish some sort of democracy in Iraq, that will eventually be used to establish another dictatorship that, as history shows, this nation of states will have to 'fix' within a generation or two.
Sorry Congressman that I disagree with you. I truly wish the people of Iraq luck but it is no longer any of our business. We should wash our hands of it and come home. Especially considering we'll be back there in 30 years no matter how much work is done now. Cynical outlook maybe, but at least it's the truth. The theocracy that will come is going to be three times the nightmare to Israel that Hussein ever could have been. We may just be helping create Israel's worst enemy yet. And all the while, Saudi Arabia, who produced 15 of the 19 hijackers, is still called our ally
One of the duties of the Iraqi Interim Government will be to write and propose the new Iraqi Constitution. The US will advise and consult very heavily in this process, because otherwise it is likely to be screwed up, especially on the theocracy point.
Ratification will be a more interesting propostion. By that time, there should be both city governments and regional ones in the three main parts of Iraq. A referendum to approve the Iraq Constitution is probably a bad idea, since the Shi'ites (who have a majority) might turn on the Constitution and defeat it, precisely because it is not a theocracy. The better route might be to ask the lower level governments in Iraq (like the states in the US) to ratify on behalf of their citizens.
History is going to be a great teacher for this Iraqi process -- not just the history of the American Constitution, but of many of the world's more successful contstitutions, and some of the failed ones as bad examples.
John / Billybob
Winning the "hearts and minds" of Iraqis will prove to be a daunting, if not impossible, undertaking - - that Americans will grow weary of in a few months.
The obvious "bears" repeating. Blackbird.
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