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Thursday, August 25, 2005

The Iraqi Constitution

Kosmoblog covers the David Brooks column about the proposed Iraqi constitution. Brooks interviewed Peter W. Galbraith who has generally been critical of the Bush administration's handling of Iraq. Surprise, surprise, Galbraith thinks this is a big step in the right direction:
"The Bush administration finally did something right in brokering this constitution," Galbraith exclaimed, then added: "This is the only possible deal that can bring stability. ... I do believe it might save the country."...
Brooks also spoke to Reuel Marc Gerecht:
Gerecht is also upbeat about this constitution. It's crazy, he says, to think that you could have an Iraqi constitution in which clerical authorities are not assigned a significant role. Voters supported clerical parties because they are, right now, the natural leaders of society and serve important social functions.

But this doesn't mean we have to start screaming about a 13th-century theocratic state. Understanding the clerics, Gerecht has argued, means understanding two things. First, the Shiite clerical establishment has made a substantial intellectual leap. It now firmly believes in one person one vote, and rejects the Iranian model. On the other hand, these folks don't think like us.

What's important, Gerecht has emphasized, is the democratic process: setting up a system in which the different groups, secular and clerical, will have to bargain with one another, campaign and deal with the real-world consequences of their ideas. This is what's going to moderate them and lead to progress. This constitution does that. Shutting them out would lead to war.
I can't see that a constitution incorporating as many fundamental rights as the proposed Iraqi constitution can be anything but pretty good, as long as one remembers the admonition of Benjamin Franklin. The AP has the draft translated in a number of parts:
Part 1
The preamble. A bit wordy, but it's impossible not to be moved, and who can blame them for reflecting and celebrating a bit?:
We are the people of Iraq, who in all our forms and groupings undertake to establish our union freely and by choice, to learn yesterday's lessons for tomorrow, and to write down this permanent constitution from the high values and ideals of the heavenly messages and the developments of science and human civilization, and to adhere to this constitution, which shall preserve for Iraq its free union of people, land and sovereignty.
Part 2
Basic Principles. Establishes languages, Islam as the official religion, individual freedom of religion, and prohibits the passing of a law that conflicts with the "undisputed rules" of Islam, the rights and freedoms in the constitution itself or democratic principles.
Part 3
Rights And Freedoms. Extensive and extremely impressive! Including an independent judiciary, rights to trial, rights to counsel, the presumption of innocence, open court proceedings, men and women having equal rights to vote and run for office and:
Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.

Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body.

Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
Part 4
More freedoms. Among other things, it bans slavery and forced servitude, bans coercion or imprisonment on the grounds of thought, religion or politics, freedom to form and leave political parties, no detainment or investigation except by judicial decision, and equal rights for all religions. Every individual has freedom of thought and movement.
Part 5
Establishes the structure of the federal government. There is a Council of Representatives with four year terms. and a Council of Union. The Council of Representatives must approve the generals, head of intelligence and some judicial authorities! It controls the allocation of money and can withdraw confidence from the prime minister, etc.
Part 6
Establishes the executive authority which consists of the president and cabinet. Their powers are based on and limited by the constitution. Presidents must be elected by the Council of Representatives with a two-thirds majority. If a two-thirds majority can't be found, the top two have a run-off and the one with that majority becomes president. It is a four year term.
Part 7
Establishes the independent judiciary.
Article (87): The federal judiciary will include the Supreme Judiciary Council, the Supreme Federal Court, the Federal Cassation Court, the Prosecutor's Office, the Judiciary Inspection Department and other federal courts that are organized by law.
The Supreme Federal Court:
2nd -- The Supreme Federal Court will be made up of a number of judges and experts in Sharia (Islamic Law) and law, whose number and manner of selection will be defined by a law that should be passed by two-thirds of the parliament members.

Article (91): The Supreme Federal Court will have the following duties:

1st -- overseeing the constitutionality of federal laws before they are issued.

2nd -- overseeing the constitutionality of the laws and standing regulations.

3rd -- interpreting the text of the constitution....
etc. This court will have tremendous power, and here is where there is a lot of wiggle room. There is room for almost anything to happen, but there is also room for societal evolution in that the Council of Representatives controls their appointment by a super majority. This will be a WIP.
Part 8
Establishes various independent agencies and grants authority for the creation of new ones as needed.
Part 9
Powers and scope of the federal government.
Part 10
Powers and scope of the regional governments.
Part 11
Transitional and final guidelines. Includes procedures for amending the constitution:
1st -- The president of the republic and the Cabinet together, or one- fifth of the members of the Council of Representatives, can suggest amending the constitution.

2nd -- The basic principles of the constitution mentioned in Chapter One of this constitution cannot be amended, except after two consecutive parliament cycles and based on the consent of two-thirds of the members of the Council of Representatives, a public referendum and the endorsement of the president of the republic within seven days.

3rd -- Other items not covered by the 2nd clause of this article can only amended by two-thirds of the members of the Council of Representatives, the consent of the people in a general referendum and the endorsement of the president within seven days.
Part 12
Transitional guidelines.

The Constitution is sound. Too many alarmists sreaming "theocracy." I do not see it. However implementing it is another issue.
It certainly is another issue. But there is never any shortcut to a true democracy. It always takes desire and action.
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