Weekly Shredder 49:
The Iraqi Constitution
by James Norton

The Iraqis have a new constitution!

Or do they? It's a bit hard to tell.

Today's Shredder is cobbled together from two of the badly abridged versions of the document that are kicking around reputable corners of the Web.

The abridged nature of the constitution is, unto itself, a little alarming. The White House website has President Bush's statement about the document, and about the document's submission to the Iraqi National Assembly. However, it lacks any links to the text of the document itself.

You'd think that they'd want to promote this thing.

Lacking any definitive text to read, it's a little hard to tell what's going on. The good news is that Bush seems upbeat:

The leadership of the National Assembly has announced it will deliberate for an additional three days before voting to approve a final draft constitution. The Iraqis will use this three-day period to consolidate consensus with all groups and finalize agreement on the few outstanding issues.

For archives, audio, and background about the column, click here.

A "few outstanding issues," and we have a democratic, unified, modern Iraq? That's awesome! Definitely a sign that all those nay-sayers on the left should take their gloomy-Gus attitudes and shove 'em where the hot, debilitating Iraqi sun don't shine.

More objective observers, including University of Michigan history professor Juan Cole and Slate's Fred Kaplan have some questions about the document's health.

Among the "few outstanding issues" identified by Cole and Kaplan:

· The rule of law provided by the interim constitution is no longer in effect, giving all power to the Iraqi executive branch.

· A major secular Shiite party and the Kurds may try to dissolve parliament rather than let the current, mostly religious Shiite majority in parliament call all the constitutional shots.

· Sunnis were effectively frozen out of the process, meaning that the constitution will likely do nothing to stop the raging, mostly Sunni insurgency.

· Three Sunni-influenced provinces could no-vote the constitution, forcing the process to reset.

· Islam is a fundamental — and arguably the fundamental — source of constitutional law, and no law can be drafted that runs contrary to Islamic law (even if it protects women!).

· Yet, by contrast and paradoxically, no law can be enacted that contravenes democracy, which some might define as a system that offers gender, religious and racial equality to its citizens.

· The Kurds and Shiites seemed poised to form constitutionally powerful "regions" in the North and South, but the Sunnis would be blocked from doing so in central Iraq.

· Current but not future oil wells are administered by the central government, which could lead to another Sunni shafting.

The two major threads of Cole and Kaplan's analyses seem to be that the process is still incredibly fragile and likely to melt down, and the Sunnis are about to get a redass beat-down.

The first is problematic because a constitutional meltdown throws political "progress" into doubt, encourages the insurgents and puts more pressure on the central government to hold the country together by extra-constitutional means.

The second is problematic because a failure to get the Sunnis to buy into the document is a guaranteed cause of another decade of bloody fighting.

It's tempting to say that Sunnis have earned it by backing Saddam, fueling the insurgency and by generally being such problematic bastards. But that's overly simplistic and ultimately stupid.

There are many Sunnis who would be glad to be part of a somewhat federalized state where they had a share of oil revenue and enough national representation to feel as though Shiites or Kurds wouldn't be able to strip them of their rights on a whim. With the right kind of negotiation, some of the former Baathists who currently fuel the bulk of the insurgency could be brought into the political process, isolating the mostly foreign Islamic zealots — and exposing the zealots to destruction.

A few other tidbits jump out from the new constitution. Here's a choice excerpt:

Any organization that follows 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.

Like the explicit banning of the Nazi party in postwar Germany, this seems, on the face of it, to be a good idea.

The problem: the constitution doesn't specify who gets to define what an "extremist" ideology is. Is it the use of violence? Then there are a lot of big, currently legal parties with militias that are vulnerable to being disbanded. Is it advocacy of strict sharia (Islamic law) supplanting all secular law? Seems "extreme" from here, but does that mean that fundamentalist religious groups are outlawed? If so, how do those groups express themselves legally?

And what about groups that espouse explicitly sexist ideologies? Whoopsadaisy — they're apparently completely kosher. Or halal, as the case may be.

Here's another constitutional excerpt:

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.

An incredibly admirable and important provision. Does it cover US mercenaries, who operate in Iraq without legal restraint? Or US soldiers?

[A] regional government does what is needed to administer the region, especially setting up internal security forces, such as police, security and region guards.

Does this mean that Kurdish and Shiite regions, if created, could maintain their old militias de facto? Is it a good or bad thing for a democracy to have a region's police forces controlled by political parties and/or charismatic religious leaders?

These excerpts — plus the points raised by Cole and Kaplan — appear to be only the iceberg's tip. Among the other translated bits of constitution, for example, are Article 22, which guarantees the right of employment to all Iraqis. And Article 66, which paradoxically states that a presidential candidate should have a both good reputation and political experience. In the hurlyburly world of postwar Iraq, it might as well demand that candidates prove their virginity, and be able to play the accordian.

The constitution's preamble includes many admirable sentiments, including this particular gem:

We, the Iraqi people now rising from suppression and looking forward to a future in a republican, federal, democratic and pluralist system, have made a pact to respect the rule of law, reject the politics of aggression, give attention to the rights of women, men and children, spread the culture of diversity, and uproot terrorism.

But until the "few outstanding issues" are resolved, the admirable sentiments that largely define this awkward, conflicted, potentially stillborn document will be plowed underground by the cold hard blades of practical politics.

Welcome to the democratic world, Iraq.

E-mail James Norton at jim@flakmag.com.

— graphic by Derek Evernden (derek@ocellus.net)