Iraqi constitutionalism (two days to go)

[Bob Sheridan]

Suppose that "the folkways" of the Kurds, Sunnis, and Shias all have it 
that the role of women in their society is the traditional role that we, 
and many of the women there, see as subservient and no longer acceptable.

And suppose that in 1787 the folkways of the Americas had it that the 
role of women in their society was that women were homemakers who didn't 
own property or vote. And that negroes were beings of a lesser order and 
if they were slaves, that was the way that God, in HIS infinite wisdom, 
ordained the world.

Do we shoot for something called a Constitution or wait it out for 200 
years until the light goes on that some things taken for granted are wrong?

Why not go for the Constitution so long as a mechanism is provided for 
agitation and propaganda and a mechanism for peaceful change?  It gives 
gives the folks a fighting chance to overhaul the folkways over time.

Regarding secession, can't this be viewed as either a right or a power 
in the Hohfeldian sense, or both?  Treating secession as a right seems a 
bit like spelling out the terms of the divorce in the pre-nuptial 
agreement.  I know good attorneys who won't draft prenups, feeling the 
protection to be illusory and an invitation to a malpractice suit when 
it proves less effective than the client hoped.

In the case of the U.S., Lincoln took the position that secession was 
not a right, but the South felt it had the power and Lincoln mounted 
superior power; hence no right.

Whether any of the above makes sense, a constitution's first two most 
important tasks seem to be first, to rope in the major parts of society 
that count the most, which in Iraq are the Ks, Ss, & Ss, but not the 
women, who, at any rate, aren't threatening to secede.  And second to 
hold out the promise of meaningful, peaceful change over time, a 
reasonable time.

And now a query:  Is the proposed new Iraqi constitution based on the 
idea of popular sovereignty, as ours is said to be?  And if so, who has 
final say, a supreme court?  A religious committee?  An easy amendment 
process?  Or a virtually impossible amendment process, such as ours, 
which effectively transfers pop sovereignty to an appointed committee of 
nine whose two wings are evenly divided with an opening in the middle?

rs



Lynne Henderson wrote:

> according to an expert on the process in Iraq with whom I spoke 
> recently, Larry Diamond, the Kurds may very well keep in mind a "right 
> to secede" from a Federalist system/"republic of Iraq' at least along 
> the Canadian lines. This may be why there is such opposition to a 
> federalist system on the part of some Sunnis and Shi'ias. He believed 
> that if the 8 year provision were in the constitution, the Kurds would 
> patiently wait 8 years and then secede. And the more general and 
> gap-filled the constitution, the worse it would be for the future of 
> Iraq as a united country. (Diamond is supposed to be on Meet the Press 
> tomorrow with another non-political type, but it isn't clear how much 
> will be about the constitution-making process at this point)
> The fight over the role of Islam involves to some extent women's 
> rights, particularly on the application of religious law to family law 
> matters, but the omission of any mention of women's rights could mean 
> two things: the AP reporter didn't think it was important or the 
> powers that be don't think it is important.
> As I recall, women had to fight long and hard to have any recognition 
> of equality and rights placed in the ANC/South African constitution, 
> because it messed with the folkways and no one perceived any real 
> problem. The south African constitutional process was long and careful 
> compared to the one in Iraq. In the high pressure situation of Iraq, I 
> fear that women simply won't count and will be left by the wayside. 
> But then as we hear repeatedly about our own Constitution, there is no 
> need for explicit recognition of women's rights, either.
> Lynne Henderson
>
> On Aug 20, 2005, at 12:01 PM, Sanford Levinson wrote:
>
>     Some version of the article below will presumably be in tomomrrows
>     NYTimes.  Query:  What exactly does it mean if the Kurds drop
>     their demand for an explicit right of secession in eight y ears? 
>     Will that mean that they concede that secession at any time for
>     any reason is simply out of the question (so that would the
>     central government be entitled to intervene militarily, a la
>     Lincoln) or simply that they are agreeing that the constitution
>     will remain silent on the issue and thus, perhaps, leave open the
>     "Canadian solution," which, as noted before, requires the central
>     government to take a secessionist demand quite seriously?
>      
>     This story doesn't even bother to mention the issue of women's
>     rights.  Is this because it's now a given that women are going to
>     be among the major losers in this process, and the US doesn't care
>     enough about that to support any further delay?
>      
>     As was mentioned on another list, I would think that one might
>     celebrate the congressionally-mandated "Constitution Day" on Sept.
>     17 by comparing and contrasting the processes of
>     constitution-formation in Philadelphia and Baghdad.  This would, I
>     am convinced, be a far more valuable exercise than reverential
>     celebration of our own Constitution.
>      
>     sandy
>      
>      
>     August 21, 2005
>
>
>     *Iraqi Talks Are Still Stalled Over Oil and Role of Islam*
>
>
>
>     By THE ASSOCIATED PRESS
>
>
>     BAGHDAD, Iraq, Aug. 20 (AP) - The leadership of the country's
>     Kurdish minority said Saturday that it might drop its demand for
>     the right to secede, but talks over the country's new constitution
>     remained stalled over the role of Islam in the state and the
>     distribution of oil wealth.
>
>     ....  [I omit details of today's violence.] 
>
>     Iraqis have until Monday night to complete work on the draft
>     constitution or else the National Assembly must dissolve. The
>     United States is putting intense pressure on negotiators to finish
>     the charter, which Washington hopes will in time take the steam
>     out of the insurgency.
>
>     Mullah Bakhtiyar, a senior official with the Patriotic Union of
>     Kurdistan, the political party of President Jalal Talabani, said
>     all parties were showing flexibility in order to finish drafting
>     the constitution.
>
>     "As for the self-determination for the Kurds, this issue did not
>     enjoy the support of Sunnis or Shiites, and we almost gave up this
>     demand," Mr. Bakhtiyar said. The Kurds have enjoyed de facto
>     independence since 1991. If they drop their demand to guarantee
>     the right of self-determination - a code word for eventual
>     secession that goes beyond regional autonomy - it would represent
>     a major concession and remove an obstacle to agreement on the
>     charter.
>
>     But a comprehensive compromise on a constitutional draft remained
>     elusive, with the main outstanding dispute focusing on the role of
>     Islam in the new state, pitting Kurds and secular groups against
>     Islamist parties representing Iraq's Shiite majority.
>
>     "As for the issue of Islam's role, negotiations are still under
>     way," Mr. Bakhtiyar said.
>
>     On Saturday, leaders of all factions continued a series of
>     meetings in Baghdad's fortified Green Zone.
>
>     Saleh al-Mutlaq, a Sunni representative on the drafting committee,
>     said the talks had bogged down after "deep differences" emerged.
>     He said Shiites were demanding that the new charter explicitly
>     state that the decrees of their religious leadership were sacred -
>     something both the Sunnis and Kurds oppose.
>
>     One Shiite lawmaker, Saad Jawad Kandil, said the division of
>     Iraq's potentially vast oil revenues also remained unresolved,
>     along with the question of whether federal regions could maintain
>     relations with foreign states.
>
>     Shiites insist that foreign affairs should be the job of the
>     central government, while the Kurds prefer that each region have
>     the right to maintain ties with other countries, Mr. Kandil said.
>
>     As the Monday deadline to finish the constitution approached,
>     Sunni Arabs and some Shiites rallied in Baghdad and elsewhere on
>     Friday to protest calls for a federated state.
>
>     On Saturday, about 5,000 people gathered outside the main mosque
>     in the western city of Ramadi to condemn the constitutional process.
>
>     In the northern oil city of Kirkuk, several hundred Arabs
>     demonstrated against the charter, chanting, "Yes to unity! No to
>     federalism!"
>
>     In the 1980's, Saddam Hussein displaced thousands of Kurds from
>     Kirkuk and replaced them with Arab settlers. The city, which the
>     Kurds seek to incorporate into their territory, has been the scene
>     of ethnic tensions the past two
>     years._______________________________________________
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