It’s hard not to be impressed by the Iraqi constitution and what it portends for that nation’s future — with its guarantees of privacy, women’s rights, fair trials and freedom of the press. There’s free education through college included and even child care. “The dignity of man is safeguarded,” it fairly thunders. “Citizens are equal before the law” and “equal opportunities are guaranteed to all citizens.”

Er — hold it right there.

That material is from the Iraqi constitution of 1990, with Saddam Hussein in power, before his defeat in the first Gulf War. It was propaganda then; it looms like irony today. But as a governing document, the 1990 constitution had potential, had it been more than lip service.

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Which brings matters to March 2004, and this month’s adoption of an interim Iraqi constitution by the handpicked, but not entirely puppet, Governing Council under the U.S.-dominated “Coalition Provisional Authority.”

This latter-day constitution is nation-building writ large, subscribing to principles for Iraqis that even the U.S. Constitution does not spell out, like a right to privacy and a right to health care, not to mention a guarantee of access to an education in the native language of your family. There’s also a promise of social security and, more immediately, personal security. And there’s complete obeisance to the dictates of the United Nations. Much of the language is more akin to Karl Marx than Adam Smith; it’s more welfare state and world government than Wall Street and libertarianism. Indeed, were such precepts applied to the U.S. or its Constitution, there’d be howls from conservatives. And, adding insult to right-wing injury, nothing in the Iraq constitution preserves the right to bear arms. In fact, this constitution requires government permission for a gun, which also must be registered, and it prohibits local militias.

But for all its principles, the document ducks practicalities, such as whether the Kurds, who live in the north, will retain their private army — the same one that recently helped keep Saddam Hussein away from them. “And you don’t see anything about what’s going to happen to our troops, and what sort of agreement is going to guide them,” said Mike Pan, an analyst at the left-leaning Center for American Progress, based in Washington, D.C. And here’s an especially glaring omission: The constitution does not stipulate how Iraq’s transitional government will be formed after the U.S. withdraws from control.

The process for creating this governing plan hardly engendered public trust. “The fact is that average Iraqis don’t know what’s in the constitution,” said Pan. “They weren’t asked for input. The details were not provided to the population.”

But they do know that the country’s most influential cleric, Ayatollah Ali Al-Sistani, has called the constitution illegitimate until it’s ratified by the Iraqi people. And they also know that Sistani wants to make changes. Not surprisingly, this past week saw organized protests against the constitution and governing authority. And on another front, some Iraqis in the Governing Council said they opposed United Nations involvement in future elections, which made American officials especially nervous about their plans to get the heck out of Baghdad.


The distrust, skepticism
and maneuvering are understandable. As with the 1990 constitution, who’s to say that this nouveau rhetoric will mean anything lasting at all?

It’s just not the same cultural ethos as in the U.S., where Americans view their own Constitution as a “quasi-sacred document,” said Daniel Pipes, director of the Philadelphia-based Middle East Forum, which is typically pro-Bush on Iraq. “Our Constitution is clearly the key document in this country. In the Middle East, constitutions come and go. The 1990 Iraqi constitution is full of attractive sentiments about the dignity of man, the rights of the individual, and so forth — that were entirely meaningless. Iraqis in particular and the Middle East in general will approach this in a much more skeptical way than we do.”

What especially troubles Pipes, however, is the document’s enfranchisement of Islamic law: “This is a legal system that is anti-democratic. It disallows freedom of religion, executes adulterers, oppresses women and discriminates against non-Muslims, among other features. It’s not something that’s in accord with American principles.” But Pipes also conceded that paying homage to Islam helped win support from Iraqi factions that could have torpedoed the process. As it was, a Shiite contingent temporarily backed out of the signing ceremony.

The document doesn’t say how literally it will interpret Islamic law or which interpretation it ascribes to. Such distinctions could make all the difference in the permanent constitution. Scholars have noted, for example, that in a few Islamic countries, a woman’s word is worth only half that of a man. Therefore, a man could not be convicted of rape based on a woman’s word against his. And strict segregation of schools would be as antithetical to gender equality as our nation’s “separate but equal” doctrine was to racial equality.

Under Saddam Hussein, Iraq proved a distinctly more secular Islamic state than neighboring Iran, and something different again than Saudi Arabia. Although freedom of religion and equal rights for women seem to contradict Islam, it’s also true that Muslims living in Western democracies have adjusted.


Pipes’ ambivalence is noteworthy, given that he strongly advocated the invasion of Iraq in the first place. Mixed feelings resonate from all political perspectives, including that of Rutgers political-science professor Roy Licklider, who opposed the Iraq war: “There was no reason you couldn’t deter Saddam — as we had for 30 years quite successfully. And I was very much concerned about what was going to happen afterward.”

Now that the U.S. is stuck in “afterward,” Licklider opposes a quick exit, based on his research into nation-building and civil wars in world hotspots. The interim constitution leaves plenty of room for dissolution, he said, with a weak central government that mandates powerful regional authority and gives individual factions potentially paralyzing veto power. And while the document talks of disarming unauthorized militias, it doesn’t say who gets to keep their guns or spell out a process for taking them away from everyone else.

“That’s a real problem,” said Licklider, “because if you’re going to have a central government, you have to eventually disarm the individual militias and transfer power to the center. But nobody wants to do that, because they’re afraid of the consequences, and history suggests that they are correct to be afraid.

“The track record on power sharing is mixed,” he added. “A current example is Bosnia, which has the three major ethnic groups with their own area. You have a very weak central government because nobody trusts anybody else. It holds together because you’ve got NATO troops there, apparently indefinitely. I don’t think the Iraqis would stand for that. So the question is: Can you establish a system that will be functional in a fairly short period of time?

“Obviously, President Bush would like to get out of this — or say he’s gotten out of this with a straight face — before the election in November. And it’s also true that the Iraqis want us out very badly.”

The hand-over, scheduled for the end of June, seems timed to let Bush show voters that he can escape Iraq, without leaving enough space before the November election for everything to fall to pieces.


The young United States grew out of an analogous experience after the American Revolution, when delegates insisted on the weak, state-dominated Articles of Confederation. That system proved unworkable, compelling the country’s leaders to adopt the permanent Constitution in 1787. But that peaceful transition was not made under the auspices of an occupying power. And in Iraq, this occupying power is both widely disliked and anxious to depart. But the U.S. also seems indispensable, because it’s providing military might and money — $150 billion and counting.

Two particular problems stand in the way of a permanent, workable constitution, said Licklider. “One is: What kind of constitution can you get people to agree on? And two: What are the chances of having it become something other than a piece of paper?”

He added: “The whole idea of using Iraq as a springboard to create democracy, to change the Middle East, is at one level a wonderfully inspiring idea, but it’s also an enormous gamble. And I worry that there’s not a Plan B. I just don’t quite see what our government thinks it’s going to do if all this doesn’t work.”

LA Weekly