The Iraqi Constitution Analyzed

The Washington Post has the text of the proposed Iraqi Constitution that is currently being finalized before being brought to the Iraqi people for a vote. The biggest controversy is with Article II of the document:

The political system is republican, parliamentary, democratic and federal.

1. Islam is a main source for legislation.

a. No law may contradict Islamic standards.

b. No law may contradict democratic standards.

c. No law may contradict the essential rights and freedoms mentioned in this constitution.

This isn’t as bad as it could be. It’s quite similar to the Afghan Constitution which also has Islam as a main source of legislation. The problem is that the three conditions for law are contradictory. Strict interpretations of Islam systematically deny women basic political rights. So what happens then? A law granting women certain basic rights could well be determined to “contradict Islamic standards” but a law that was in accord with shari’a would most certainly not be in line with democratic standards. So, which side wins out in such a dispute?

Furthermore, who is the arbiter of what comprises “Islamic standards”? Is it the courts – in which case the courts would serve as both a religious and a political body, or clerics? If clerics, which ones? Shi’ites, Sunnis, and Kurds all might have wildly different opinions about what constitutes a law that contradicts “Islamic standards.”

As with all documents, the devil is in the details. Would this Constitution ban the sale of alcohol, which is already legal in many places in Iraq? Would it lead to discrimination against women? How will the compatibility of Islam and the law be judged? Expect the Iraqi people to be asking those questions quite often before this document is formally ratified.

2. This constitution guarantees the Islamic identity of the Iraqi people and guarantees all religious rights; all persons are free within their ideology and the practice of their ideological practices.

Does “ideology” mean “religion”? Does this document grant true religious freedom to Christians and Yezidis? Does it mean that synagogues will once again be open in Baghdad? That is the test for the tolerance of a society, and the Iraqi Constitution should make it quite clear that even if Iraq has an Islamic identity, that Islamic identity does not relegate those who are not Muslims to the second-class status of dhimmi. Then again, if no law can exist that contradicts Islam, would that not mandate dhimmitude and the payment of the jizya? But that would also be profoundly undemocratic as well. The Iraqi Constitution needs to make that issue clear, even if it means going back to the drawing board.

Article Seven

1. Any organization that follow a racist, terrorist, extremist, sectarian-cleaning ideology or circulates or justifies such beliefs is banned, especially Saddam’s Baath Party in Iraq and its symbols under any name. And this should not be part of the political pluralism in Iraq.

Now, the question is whether or not the Iraqis will apply this to radical Islam – not only terrorist groups like al-Qaeda, but also radicalist preachers or Wahhabi imams who spread incitement, anti-Semitism, and intolerance.

2. The government is committed to fighting terrorism in all its forms, and works to protect Iraqi soil from being a center or passage for terrorist activities.

That’s going to be the key mission of the Iraqi government for the next several years – if not longer. It is absolutely crucial that the Iraqi government do what they can to fight terrorism in Iraq and prevent Iraq from becoming a petri dish for terrorism. That means fighting off not only the open jihadis but those who train and support them while wearing a moderate mask.


Article 35

a. Human freedom and dignity are guaranteed.

b. No person can be detained or interrogated without a judicial order.

c. All kinds of physical and psychological torture and inhumane treatment are prohibited, and any confession is considered void if it was taken by force, threats and torture. The person who was harmed has the right to ask for compensation for the financial and moral damage he/she suffered.

No doubt these rules come in large part from the horrors of Saddam’s Iraq, where justice was arbitrary and violent. The Iraqi people have no desire to go back to those bad old days, and so a system that does its best to preserve the rights to a fair trial are critical.

Article 36

The State guarantees:

1. Freedom of expression by all means.

2. Freedom of the press, printing, advertising and publishing.

There is a huge problem here. The United States Constitution reads Congress shall make no law abridging the freedom of speech. The United States Constitution is a document based around the concept of negative liberty — the concept of negative liberty is absolutely crucial for a democratic society. Negative liberty assumes that you already have the right to free speech – a right that is innate to the human condition and not granted to you by the state. That means that the state can’t restrict that right in an arbitrary manner – freedom of speech is and always will be an individual right that should be as free as possible from state interference.

The Iraqi Constitution argues that the state “guarantees” freedom of expression. However, that is a positivist view of government – you have the right of expression because the government grants it. That sort of positive liberty tends not to produce a healthy society. If promises in a constitution meant something, North Korea and China would both be democracies. The only way to preserve individual liberty is to restrict the coercive power of government. The Iraqi Constitution should be based on the principles of negative liberty to ensure that individual freedoms are given adequate protection.

Article 39

Iraqis are free to abide in their personal lives according to their religion, sects, beliefs or choice. This should be organized by law.

The last phrase seems somewhat ambiguous to me, but it seems like that it means that all religious practices that do not contradict the law are permitted. However, assume that interpretation is correct, that means that if a law is passed mandating things such as mandatory prayer times, there won’t be true religious liberty in Iraq. This is a good start, but again, the Iraqi people need to demand clarification where clarification is due.

In terms of individual liberties, the Iraqi Constitution is not yet a document that will effectively protect the rights of minorities, and it leaves more questions than answers. The hard part isn’t drafting a Constitution, it’s making that document work. It took years for the US to get it right, and that includes a bloody Civil War. The Iraqi people don’t need to rush into creating a Constitution. The Sunnis have shown an increased desire to participate in the political process, and the Iraqi people tend to be some of the most moderate and progressive in the Middle East. Ultimately, the fate of the document is in their hands.

This is a good start, but the future direction of the Iraqi people lies in the democratic give-and-take that is the hallmark of a civilized country. The fact that Iraqi Sunnis, Shi’ites, Kurds, Turkomens, and others came to this point without bloody internecine fighting is itself a positive sign. A democracy doesn’t emerge whole like a phoenix from the ashes, it takes significant work and effort over time. However, the Iraqis are taking the democratic road, and while there will be setbacks and stumbles, they have made a commitment towards a democratic, strong, and free Iraq.

UPDATE: Michael Ledeen notes several positive reactions from Italy to the Iraqi Constitution.

It isn’t perfect, but it doesn’t have to be. It is revolutionary in the Arab world for creating a federal and republican form of government with the power vested in the people of Iraq rather than an autocrat or a sovereign. So far, almost no Arab country has anything even remotely like it.

Of course, a constitution is just a piece of paper without the civil society to back it. Iraqi civil society had been systematically suppressed for decades, but with the plethora of newspapers, TV channels, Iraqi bloggers, political parties, and civil organizations, the level of civil society in Iraq is quite possibly the most advanced in the Arab world – which is a very positive sign for the future of Iraq.

UPDATE: Glenn Reynolds has his usual compendium of insightful links.

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