Constitutional experts, critique the Iraqi constitution

[Sal Ammoniac]

Most of the discussion about Iraq's constitution has focused on the political process around getting it passed. I haven't seen a ton of discussion about the actual text. But today the papers have a link (http://www.nytimes.com/aponline/international/AP-Iraq-Constitution-Text.html) to the document, and I have to say, I'm underwhelmed. (And I apologize if this site turns out to require registration.)

Even making allowances for the fact that this is translated and just a draft, it still looks to me like work that was done in the bus on the way to school. So I wanted to put the question to our experts out there: from a technical point of view, does this seem like a workable constitution? In other words, do you see this as an effective basis for a future body of law and system of government?

I, in my layman's view, see enough holes to drive a truck through.

[Captain Amazing]

It looks like that's just parts of it and there are articles missing?

[ElvisL1ves]

Whatever the text says, if they generally want to make it work, it'll work. If they don't, it won't. Same as any other nominally-democratic constitution.

[Sal Ammoniac]

Captain Amazing, you're right, this is one of the things that's puzzling. Are they going to fill it in later, is it just a numbering issue, or is this actually an excerpt? This is part of the reason I began to wonder about how watertight this document really is. It looks like the roughest of rough drafts.

ElvisL1ves, I don't believe sucess or failure of the document is so totally divorced from what the document actually says.

[ultrafilter]

I'm mostly interested in the interplay between these two statements:

-- a. No law may contradict Islamic standards.

-- b. No law may contradict democratic standards.

Given what I've heard/read about Islamic governements, I could see some big clashes between the two principles, at least in regards to women's rights.

[Captain Amazing]

It looks like they're still drafting it, and gave the Parliament an incomplete version:

http://news.yahoo.com/s/afp/20050823/wl_mideast_afp/iraq_050823184524;_ylt=AiDn1XR0iit5mPUi_RQeSv8b.3QA;_ylu=X3oDMTA2ZGZwam4yBHNlYwNmYw--

I'd say wait a few weeks and we'll have a better idea of what the constitution actually says then.

[Metacom]

Given what I've heard/read about Islamic governements, I could see some big clashes between the two principles, at least in regards to women's rights.
Wouldn't it ultimately boil down to what exactly they mean by "Islam"? Do they strictly mean the contents of the Koran? Or do they include other documents and historical or legal traditions? Given that some of the major differences between Sunni and Shia Muslims are over these exact issues, and it seems like such an ambiguous statement is an invitation for disaster.

For that matter, what the heck does "democratic standards" mean? Which democracy? :confused:

It's really a baffling, dissonant, almost incoherent document, at least at this stage.

[Sal Ammoniac]

Now I'm beginning to experience cognitive dissonance about the whole thing. We hear from some quarters, "The constitution is almost done, except for the last few details," but then the version we see in the press seems to give the lie to that idea. You'd think that if a better, cleaner version existed that somebody -- oh, say, the White House? -- would have a vested interest in seeing that it got out.

Does anybody out there see this document in a more positive light, or think the Iraqis are within spitting distance of something workable?

[Squink]

I'm mostly interested in the interplay between these two statements: -- a. No law may contradict Islamic standards.

-- b. No law may contradict democratic standards.Given what I've heard/read about Islamic governements, I could see some big clashes between the two principles, at least in regards to women's rights.I think we'll have to wait until we get a decent translation before examining even such obvious clash points.
Juan Cole gives a different translation this morning (http://www.juancole.com/2005/08/coup-in-baghdad-unfinished.html) a) No law may be legislated that contravenes the essential verities of Islamic law. [Note: The TAL and earlier drafts said that law may not contravene the verities of Islam. By specifying ISLAMIC LAW-- ahkam al-Islam-- this text enshrines the shariah or Islamic canon law quite explicitly in the constitution and would allow religious jurists to question secular legislation.]

b) No law may be legislated that contravenes the principles of democarcy.

c) No law may be legislated that contravenes the rights and basic liberties enumerated in this constitution. Once translated, we can compare the Iraqi, to the Iranian constitution (http://www.iranonline.com/iran/iran-info/Government/constitution.html) and get an idea of how the words might be realized on the ground.

[Captain Amazing]

Whatever the text says, if they generally want to make it work, it'll work. If they don't, it won't. Same as any other nominally-democratic constitution.
Ultimately, I agree with you. But if the constitution is good, that makes it easier for stuff to work if they want it to work.

[ElvisL1ves]

The part about "No law may contradict democratic standards" may be just a sop to the West, not intended to be taken seriously.

[ultrafilter]

The part about "No law may contradict democratic standards" may be just a sop to the West, not intended to be taken seriously.

Maybe, but if it ends up in the constitution, it could still cause some rumbles. We'll see how this one plays out.

[Metacom]

The part about "No law may contradict democratic standards" may be just a sop to the West, not intended to be taken seriously.
A "sop to the West"? Why whose ever heard of such a thing! Hmpf!

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From the Iraq Constitution:
2. Freedom of the press, printing, advertising and publishing.

[Pleonast]

it seems like such an ambiguous statement is an invitation for disasterAmbiguity is a necessity of diplomacy and compromise. They'll never reach agreement on all issues. Better to be ambiguous and postpone some arguments to the future. Of course, a too ambiguous constitution will guarantee problems. A balance is required.

I believe ambiguity is one of the essential characteristics that make the U.S. Constitution so brilliant (and elegant). Compare, for example, to the detailed-befuddled European Constitution.

[Metacom]

Better to be ambiguous and postpone some arguments to the future.
Like slavery!


;)

[cmkeller]

Hey, Israel's existed for almost sixty years without an actual written consitution that delineates the line between the religious and democratic character of the state. Let's not make the perfect the enemy of the good. The Iraqi people, after decades of Baathist oppression, seem very enthusiastic about being able to have a say in their own government, and if there are a few gray areas that need to be clarified later, it should be good enough to be getting on with.

[Sal Ammoniac]

Hey, Israel's existed for almost sixty years without an actual written consitution that delineates the line between the religious and democratic character of the state.

This is, in effect, the essence of the Israeli problem, and I don't know that I would hold this up as a model for anyone. As to the perfect being the enemy of the good, my contention is that the current Iraqi constitution -- with the caveat that we have seen a highly incomplete version -- is not anywhere near being considered "good."

[cmkeller]

Sal Ammoniac:

This is, in effect, the essence of the Israeli problem, and I don't know that I would hold this up as a model for anyone.

I agree that it is a looming problem for Israel, but what it does is lay the groundwork for the issue to be settled in a peaceful, orderly manner when settling it is finally necessary. If Iraq can run itself in a democratic manner for half a century, even if a consitutional crisis occurs after that point, it will (hopefully) represent two generations of Iraqis raised with a mind-set of resolving the issue without terrorism or civil war.

As to the perfect being the enemy of the good, my contention is that the current Iraqi constitution -- with the caveat that we have seen a highly incomplete version -- is not anywhere near being considered "good."

It's certainly better than anything any other Arab nation has. And it was hammered out by the Iraqis themselves, who were voted by the Iraqi public to do the task. It may not be what we Westerners would think of as "good", but it represents a quantum leap forward from militarily-backed totalitarianism.

[clairobscur]

Wouldn't it ultimately boil down to what exactly they mean by "Islam"? Do they strictly mean the contents of the Koran? Or do they include other documents and historical or legal traditions? Given that some of the major differences between Sunni and Shia Muslims are over these exact issues, and it seems like such an ambiguous statement is an invitation for disaster.
.


They refer to "undisputed" principles of Islam. So, itshould give a lot of wiggle room.


Apart from that, this constitution is severely lacking at this point. Essentially nothing is defined regarding the relationship between the powers (in particular the executive and legislative), and not much is said about the prerogatives of each power, and way too much things are to be determined by law. And the electoral process isn't really defined, either.

Also, they should have abstained from mentionning current issues, in particular "terrorism" should have no place in this document.


That's a draft of a draft.... I'm honestly baffled that they came out with that after so long debates. Or rather....they probably say nothing in the constitution because they couldn't agree on anything. That's not very encouraging.

[Malodorous]

What's a "democratic standard"? I haven't the foggiest, other then that people should be able to elect their leaders, which is already stated explicitly in the document.

It's not only a sop to the West, it's a meaningless sop.

[Tamerlane]

It's certainly better than anything any other Arab nation has.

Could be. We'll have to see what it looks like in its final form. A few sample Arab consitutions, chosen semi-randomly ( I wanted at least one consitutional monarchy, Egypt & Algeria are representative of "democratic" countries that are anything but and Lebanon because of the oft-stated similarity between it in the 1970's and Iraq today ) :

Lebanon[/b\ - http://www.oefre.unibe.ch/law/icl/le00000_.html

[b]Egypt - http://www.parliament.gov.eg/EPA/en/Levels.jsp?levelid=6&levelno=1&parentlevel=0

Algeria - http://www.oefre.unibe.ch/law/icl/ag00t___.html

Morocco - http://www.mincom.gov.ma/english/generalities/state_st/constitution.htm

And just to toss it out again, Iran's : Iran - http://www.oefre.unibe.ch/law/icl/ir00000_.html

- Tamerlane

[Sal Ammoniac]

Iran's is an interesting document. It's a manifesto as well as a constitution, and whatever we may think of the ideology it explicitly espouses, the constitution at least is well elaborated, detailed, and broad in scope -- everything the Iraqi constitution is not. (There's a separate question here that is a little bit troubling, and it has to do with how well the constitution is adhered to. I imagine there are tons of countries with constitutions full of noble sentiments and ideals that have no existence beyond the paper they are written on. Haiti is a perfect example.)

[Jojo]

Just reading through that Iranian constitution and I notice it says this:

An Ideological Army
In the formation and equipping of the country's defence forces, due attention must be paid to faith and ideology as the basic criteria. Accordingly, the Army of the Islamic Republic of Iran and the Islamic Revolutionary Guards Corps are to be organized in conformity with this goal, and they will be responsible not only for guarding and preserving the frontiers of the country, but also for fulfilling the ideological mission of jihad in God's way; that is, extending the sovereignty of God's law throughout the world (this is in accordance with the Koranic verse "Prepare against them whatever force you are able to muster, and strings of horses, striking fear into the enemy of God and your enemy, and others besides them" [8:60]).

Man, I sure hope they get nuclear weapons.

[Honesty]

I am not a constitutional scholar, in fact, if anything, I am as "ordinary" as they come. As I read the Iraqi Constitution, I felt, in general, that the document doesn't lead itself to interpretation. It's essentially a text of ridiculous laws:

Entities or trends that advocate, instigate, justify or propagate racism, terrorism, ''takfir'' (declaring someone an infidel), sectarian cleansing, are banned, especially the Saddamist Baath Party in Iraq and its symbols, under any name.


Also, from what I get about the Council of Representatives, those who are newly elected BY the people can be rejected by current Council members. What kind of crap is that? Maybe I'm not getting it. I also don't get their judiciary rules for their version of the Supreme Court. They can be impeached? Can our judges be impeached?


- Honesty

[Elendil's Heir]

There ain't a lotta meat on them bones. Judging from this draft, the constitution-writing committee has quite a bit of work ahead of it. I strongly agree that a good constitution strikes an elusive but necessary balance between detail and ambiguity - the U.S. Constitution does, thank God, but this one doesn't. Not yet, anyway.

And yes, Honesty, Federal judges can be impeached, and have been, two dozen or so times in U.S. history:

Art. II, Sec. 4: The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment is by the House; trial is in the Senate. One impeached and convicted Federal judge, Alcee Hastings of Florida, is now a congressman.

Go figure.

[Sal Ammoniac]

Here, by the way, is the text (http://www.nytimes.com/2005/08/28/international/iraqtext_new.html) of the new, improved Constitution. Obviously, this is much closer to a finished product than the version cited in the OP, and goes a long way toward resolving the doubts expressed there.