Iraqi constitutionalism -- in overtime

Kim Scheppele kscheppe at
Sat Aug 20 20:56:35 PDT 2005

>From my reading of the various constitutional drafts, the problem with women's rights has been (as Lynne suggests) dependent on the debate over the role of Islam in the new constitution.  The draft Iraqi constitution says two very different things about women's rights:  a) that women share equally in political, legal and citizenship rights with men across the board and b) that women's role is given by a very traditional reading of Shari'a.   The first set of guarantees is meaningless unless Shari'a is made subordinate to the constitution rather than the other way around.   So it could well be that the fight over the constitutional status of Islamic law really does settle what women's rights will look like.  

In addition to reading daily stories about car bombs, IEDs, and the targeted killings of both American soldiers and Iraqi police, it is crucial to note that the constitutional process has to fight with facts "on the ground" for average Iraqis as well.  And there is a very real question about whether any basically liberal and democratic constitution has any chance at all given the prevalance of private militias, some operating in official uniform.  Could any civilian and representative government set up by such a constitution control the proliferation of violence or the majority of the territory of the country at this point?    See Sunday's Washington Post's depressing lead story about Iraq, excerpted below:
Militias Wresting Control Across Iraq's North and South
Residents Tell of Growing Climate of Fear

Anthony Shadid and Steve Fainaru 
Washington Post Foreign Service
Saturday, August 20, 2005; 7:00 PM

BASRA, Iraq -- Shiite and Kurdish militias, often operating as part of Iraqi government security forces, have carried out a wave of abductions, assassinations and other acts of intimidation, consolidating their control over territory across northern and southern Iraq and deepening the country's divide along ethnic and sectarian lines, according to political leaders, families of the victims, human rights activists and Iraqi officials.

While Iraqi representatives wrangle over the drafting of a constitution in Baghdad, forces represented by the militias and the Shiite and Kurdish parties that control them are creating their own institutions of authority, unaccountable to elected governments, the activists and officials said. In Basra in the south, dominated by the Shiites, and Mosul in the north, ruled by the Kurds, as well as cities and villages around them, many residents say they are powerless before the growing sway of the militias, which instill a climate of fear that many see as redolent of the era of former president Saddam Hussein. . . . 

 "There is an absence of law," said a 40-year-old Transportation Ministry official who was detained for five days in Dahuk last month. The official said a Kurdish officer had accused him of "writing against the Kurds on the Internet."

" 'Freedom' and 'liberty' are only words in ink on a piece of paper," he said. "The law now, it's the big fish eats the small fish."

[for the rest of the story, go to )



Kim Lane Scheppele

Director, Law and Public Affairs Program
Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and University Center for Human Values
Faculty Associate in Politics and in Sociology

Woodrow Wilson School 
415 Robertson Hall
Princeton University
Princeton, NJ 08544 
Phone:  (609) 258-6949
Email:  kimlane at  

  ----- Original Message ----- 
  From: Sanford Levinson 
  To: Sanford Levinson ; conlawprof at 
  Sent: Saturday, August 20, 2005 2:01 PM
  Subject: RE: Iraqi constitutionalism (two days to go)

  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.

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