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I am: progressive, not a wild-eyed Progressive; liberal, but shun liberals and Liberals; conservative, but some Conservatives worry me; absolutely NOT a libertarian. I am: an idealist, but no utopian; a pragmatist, but no Machiavellian. I am a realist who dreams.


I welcome all opinions.

Monday, September 05, 2005

The Iraq Constitutional Draft:
   Civil War Risks?

The recently drafted Iraqi constitution is not perfect. It is flawed, seriously flawed, perhaps even fatally. But it is a constitution of a people with little experience in things democratic; of a people newly throwing off the yoke of tyranny, a centralized oppressive tyranny controlled and peopled from just one minority faction.

Does it necessarily follow that from an imperfect constitution, civil war will inevitably and invariably result? Have the Iraqis democratically doomed themselves?

Detractors of the Administration’s foreign policy in Iraq have always been quick to criticize, quick to find fault, quick to portend doom. Anything to salt the tail. And before the Iraqis have a chance to vote on their own proposed constitution, these doomsayers are in hot pursuit of Armageddon.

President Bush has called the democratic process of drafting an Iraqi constitution, and the success of that process, an “amazing event“. It is a process that attempts to resolve political conflicts in peaceful and agreed upon institutions, substituting the sword with the pen and the word. Something that has been in short supply in Iraq for a very long time.

In an Aug. 26 Newsday piece, reprinted on the Council on Foreign Relations website, Senior CFR Fellow and Deputy Director for the Center for Preventive Action David Phillips takes issue with Bush’s characterization, declares the Iraqi draft constitution dead on delivery and claims “the process has actually increased chances for civil war."

His first argues that it is not a legitimate democratic expression because, “(it) lays the groundwork for theocratic rule.” It also lacks legitimacy as it does not properly represent “all of Iraq's ethnic and sectarian communities (who) must buy into the constitution as a vehicle for upholding their interests.

Phillips asserts that “U.S. officials should tone down their exuberance” because “(a)bsent a political process restoring full sovereignty to Iraq, the United States has little hope of pulling off its exit strategy and reducing the number of its troops in Iraq ... (and) Iraqis may yet veto the constitution in October.

Let us deconstruct this tortured logic.

First, regardless of whether Iraqis accept or reject the draft, it is still an “amazing event”, no less amazing than the drafting, and acceptance, of the Articles of Confederation after the American Revolutionary War. It doesn’t matter that those Articles didn’t survive the decade; it doesn’t matter that they failed because they were fatally flawed from the start. What matters is that in the wake of the Revolutionary War, the Articles were the best that could be negotiated among a freed people who had little, if any, common national interest. And little desire to replace one central authority with another, democratic or not.

In the wake of the failure of the Articles to create a viable national government of the people, the proponents of the Articles of Confederation, the advocates of the supremacy of states’ rights, lost political clout and currency and the federalists won the day with the drafting of the U.S. Constitution, which still remains the supreme law of the land, well over two hundred years later.

Likewise, the forces for regional autonomy in Iraq are much stronger than those calling for national unity. Those calls for unity are generally tainted and discredited by association with the regime of Saddam. And that would be mostly Sunni.

Indeed, as the Iraqis work towards national reconstruction efforts, as Sunnis attempt to sabotage those constitutional initiatives, from boycotting national elections to armed insurgency, it is amazing that a peaceful negotiated process was even started, it is amazing that a National Assembly was even seated (and remains seated), it is amazing that a draft constitution was even negotiated and put up for a vote, more or less on time and under budget.

In judging an outcome as democratic or not, is it not at least as important to judge the process itself? How has the process, of electing an Iraqi National Assembly and parleying a draft constitution between the three factional groups, not been democratic? Phillips makes the argument that of the 55 members on the original constitutional commission, only 2 were Sunni. That is less than 4% representation of a people that constitutes 20% of the Iraqi population. Yet, Phillips acknowledges (trivializes) that “(t)o placate concerns about legitimacy, 15 Arab Sunnis were later included.

Do the math. That is 20% representation for a people that is 20% of the general population; a people who incidentally had decided en masse not to participate in a representative government. Phillips dismisses this, "(m)ost Arab Sunnis were too scared or chose not to vote on Jan. 30." Being scared didn't stop millions of Iraqi and Afghan women from voting. Being scared is no excuse. Freedom isn't a piece of candy you get for being good. And choosing not to vote is not germain to the argument, except to say it was a choice. A democratic choice.

But back to the issue of legitimacy. Sunni representation on the commission that drafted the constitution was increased more than seven-fold to demographic and proportional representation and yet this commission still lacks legitimacy? Didn’t those 15 Sunnis participate in the negotiations? Or did these 15 Sunni representatives boycott the commission as the Sunni people boycotted the national elections that put them in such a poorly represented position in the first place?

The issue here is not that Sunni interests have not been properly represented; the issue is that the Sunnis have not properly represented themselves. And as those states’ rights advocates found out a couple hundred years ago, representative democracies require compromise and acknowledgement to the sovereign will of the majority.

Of course, it is entirely probable that the Sunnis already know that.

Phillips’ argument of legitimacy doesn’t pass the smell test.

But, the larger point of Iraq’s future is not the mere fact that the Iraqis have thus far averted civil war, taking the road of peaceful politics, but whether there are forces strong enough to pull the country back together after a confederation fails, if in fact it does fail. Certainly, the only people currently calling for national unity are the Sunnis, and a broad, if diffuse, secular contingent.

Civil war has been an enormous threat since Saddam fell; Saddam held the country together with tyrannical and sadistic verve. With Saddam and his edifice gone, long suppressed tensions between the three largest ethnic groups have exploded. What is amazing is that, thus far, the only real violent manifestations of this explosion have been limited to initial looting and lawlessness and an armed insurgency that, despite the violence, is sporadic and isolated.

Democratic setbacks like an imperfectly drafted constitution did not and does not raise the specter of civil unrest, and it is far from the end of the world. The National Assembly still exists, with measured legitimacy, and the Iraqis have not dismissed the upcoming October plebiscite on the constitution as irrelevant, regardless of how they individually intend to vote.

To grossly misquote Shakespeare, the vote is the thing.

That is what is amazing.

Furthermore, to condemn the draft constitution because it offends our American sensibilities of religious freedom ignores the fact that the Iraqis are, by and large, Islamic. Religion is not evil; religion is not undemocratic. The seeds of American freedom and democracy had similar theocratic overtones in the seventeenth century New England Colonies. True, few of us would care to live in that religiously intolerant society now, but democracy in the New England did not suffer a death blow because they were theocracies. And Iraq is essentially just as religiously homogenous as those societies were 350 years ago.

Theocracy is not necessarily and inherently incompatible with democracy, and if Phillips insists it is incompatible in Iraq, he needs to make a better showing in his argument.

The second point that Phillips misunderstands (or misrepresents) is that Bush's strategic intentions in Iraq is not one of bugging out of Iraq. If it were, we wouldn’t be there in the first place.

The American strategic objective is to neutralize Iraq as a base of operations for terrorist organizations. As a democracy, as a fully functioning and open democracy of laws, terrorists would find little sanctuary in Iraq, or so the theory goes. Whether you agree with that or not, you cannot (nor can Phillips) argue that is not the stated objective here.

Finally, it would be unconscionable for America’s leader not to trumpet this amazing demonstration of democratic impulse. This is who we are. We are a democratic republic. To stay silent whilst Iraqis attempt to do what we have already done, to reach for what we cherish, would be treasonous to our character. And if that were to happen, Bush’s very political opponents would seize upon that and launch a massive political broadside.

The only fatal flaw I can detect is in Phillips' reasoning.


Blogger Jay Cline said...

Note: Even the second American constitution, the current one, was far from perfect.

Slaves were counted as 3/5 people, but had no votes and the unresolved issue of slavery erupted into Civil War four score and four years later.

I go more into detail about the Civil War at http://www.thedebates.blogspot.com/

9/05/2005 5:03 PM  
Blogger Jay Cline said...

And let us not forget that Lincoln emancipated the slaves long before woman had the right to vote.

Article 20 of the draft Iraq Constitution: Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates.

9/05/2005 5:10 PM  
Blogger Jay Cline said...

Part of Phillips' comments about the undemocratic nature of the draft is that basic human rights, specifically women's rights, are not provided for.

Given that even the US Supreme Court exercises an arbitrary power over American legislation and rights, and given the following extracts of the draft, I challenge anyone to explain how the Iraqi draft constitution inherently denies women their prescribed rights:


... we went by the millions for the first time in our history to the ballot box, men and women, young and old, on Jan. 30, 2005

... We the people of Iraq ... are determined -- men and women, old and young -- to respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism.

Art. 2 Sec. 1

Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.

Art. 13

Sec. 1

This constitution shall be considered as the supreme and highest law in Iraq. It shall be binding throughout the whole country without exceptions.

Sec. 2

No law that contradicts this constitution shall be passed; any passage in the regional constitutions and any other legal passages that contradict this constitution shall be considered null.

Art. 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.

Art. 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.

Art. 16

Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.

Art. 18

Sec. 1

An Iraqi is anyone who has been born to an Iraqi father or an Iraqi mother.

Sec. 2

Iraqi nationality is a right to all Iraqis and it is the basis of their citizenship.

Sec. 3 Para. a

It shall be forbidden to withdraw the Iraqi citizenship from an Iraqi by birth for any reason. Those who have had their citizenship withdrawn have the right to reclaim it and this should be regulated by law.

Art. 20

Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates.

Art. 22 Sec. 1

Work is a right for all Iraqis in a way that guarantees them a good life.

Art. 23 Sec. 3 Para. a

An Iraqi has the right to ownership anywhere in Iraq and no one else has the right to own real estate except what is exempted by law.

Art. 30 Sec. 1

The state guarantees social and health insurance, the basics for a free and honorable life for the individual and the family -- especially children and women -- and works to protect them from illiteracy, fear and poverty and provides them with housing and the means to rehabilitate and take care of them. This shall be regulated by law.

Art. 34 Sec. 2

Free education is a right for Iraqis in all its stages.

Art. 42

Sec. 1

The Iraqi citizen has freedom of movement and travel and residence within Iraq and outside it.

Art. 90

Sec. 1

The Supreme Federal Court is an independent judicial body, financially and administratively.

Sec. 2

The Supreme Federal Court will be made up of a number of judges and experts in Islamic Jurisprudence and law, whose number and manner of selection work will be defined by a law that should be passed by two-thirds of the parliament members.

Art. 91

The Supreme Federal Court will have the following duties:

Sec. 1

overseeing the constitutionality of the laws and standing regulations.

Sec. 2

interpreting the text of the constitution.

Sec. 3

ruling in cases that emerge from the implementation of federal laws and decisions, rules, instructions and measures taken by federal authority. The law guarantees the right of the Cabinet and people concerned as well as others the right to appeal directly in the court.

Sec. 4

ruling in disputes between the federal government and the governments of the regions and the provinces and local administrations.

Sec. 5

ruling in disputes between the governments of the regions or provinces.

Sec. 6

ruling in accusations against the president of the republic, the prime minister and the ministers shall be regulated by law.

Sec. 7

endorsing the final results of parliamentary general elections.

Sec. 8

(a) ruling in disputes among federal judiciary and regional judicial authorities and the provinces that are not part of a region.

(b) ruling in disputes between regional authorities and provinces that are not part of a region.

Art. 92

Resolutions of the Supreme Federal Court are binding for all authorities.

Art. 93

Establishing private or exceptional courts is forbidden.

Art. 94

The law shall regulate the establishment of courts, their kinds, degrees, duties and the means of appointing judges, members of the General Prosecutors Office, the provisions for disciplining them and moving them into retirement.

Art. 95

Judges shall not be impeached except in the cases determined by law; the law will also specify the rules pertaining to them and regulate disciplinary actions against them.

Art. 98

It is forbidden to legislate into a law provisions protecting any administrative action or decision from being challenged in court.

Art. 108

The federal authorities will have the following exclusive powers:

Sec. 5

organizing issues of nationality and naturalization, residence and asylum rights.

Art. 117

The region writes a constitution for itself, defines the structure of the region's powers and its authorities as well as the mechanism of using these powers in a way that does not run contrary to the constitution.

9/05/2005 5:55 PM  

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