Wednesday, January 26, 2005


Iraq's Interim Constitution

With the Iraqi elections just a few days away, I was reminded of a post about the interim Iraqi constitution by Steven Den Beste from about a year ago. He thought it was an ingenious doccument and was optomistic that it would work in practice:
The reason I'm discussing the difference between semantic and structural solutions is that the Iraqi constitution which was signed on Monday also contains a structure which is unprecedented and which has every chance of solving a large number of major problems without having to address them semantically. It is extraordinary, subtle, profound, inspired. It is the Presidency Council.

This is an interim constitution. It establishes a government which will rule during a transition of power from the Coalition, and which will be responsible for writing a permanent constitution to replace it. But at the same time, it will establish a lot of precedent, and will be used as the starting place for development of the permanent constitution. There will be changes, but the ultimate shape of the Iraqi government will look a lot like what this interim constitution describes.

It is far from perfect. But I'm not interested in perfect. It faces an even worse political problem in ratification and execution than the Framers did in 1787 or the Europeans did in the last few years, because of the historical legacy of colonization and empire, because of religious schism, and because of recent brutal tyranny.

Iraq contains a broad variety of ethnic groups such as Turkmens, but politically speaking the most important are the Arabs and the Kurds. Iraqis have a great range of religious beliefs, but politically speaking the most important division is between Shiite Islam and Sunni Islam.

The primary problem here is designing a system which can be implemented and which will not destroy itself or become tyrannical. To even go into effect, it has to be approved by the Sunnis, the Kurds, the Shiites and the Americans (and British, but we're mainly driving this). The three Iraqi factions don't trust one another, and none of them totally trust the Americans or vice versa.

Of the four, the American demands were the most radical. The Iraqi constitution was required to guarantee the right of free expression, the principle of equal justice, the right of free exercise of religion, and the full and unconditional equality of women. It had to be democratic and it had to be secular. It had to establish an independent and impartial judiciary. It had to place all military power under civilian control. It absolutely could not fully and unconditionally incorporate Sharia as a body of law. If it did not satisfy the American demands, the Americans wouldn't approve it.

Bit within those considerable limits, those writing the Iraqi constitution also had to create a system acceptable to the three primary factions inside of Iraq. If they did not, the system would shake itself to pieces and there was a risk of Iraqi civil war.

The divisions within Iraq are very real. But this constitution takes advantage of the fact that there are three competing factions none of which really trusts the other. This constitution leverages that weakness, and makes it into a strength.

There is much more, including a comparison of the interim Iraqi constitution and the US constitution. There is also a bold prognostication at the end. It's worth reading in its entirity.


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