AW: Iraq Constitution

[isomin at fas.harvard.edu]

This raises several important issues, but I don't think it undermines the case
for strong measures against leaders of the old regime:

1. I agree that there should not be what Mark Graber called "mass executions."
However, I think it is perfectly possible to punish top leaders of the previous
regime without "excessive and unjust executions, imprisonment,  and so forth."
The German and Japanese examples show how this can be done.


2. I am very skeptical of the reformability of top members of the old regime who
are guilty of serious crimes. True, punishing such individuals might include
some who are more reformable than others, but on balance the risks of leaving
such people free strike me as far outweighing the putative benefits. Perhaps
specific individuals who make a major contribution to the transition to
democracy can be left alone on a case by case basis (as the US did with the
Emperor of Japan, though it's hard for me to say whether that decision was
correct). But punishment should be the rule.

3. No, I do not believe that a nascent liberal democracy should allow any form
of transition back to the "old regime," unless "old regime" is defined so
broadly as to render the term meaningless. And I do not think that a "Saddam
Two" with Baathist "aspirations" but no prior record of crime should be
considered "constitutionally acceptable" in Iraq (and in fact the draft
constitution seems to forbid this). Should a similar  "Hitler Two" have been
considered "acceptable" in West Germany in 1950? Were the US occupiers and the
West German drafters of the 1949 constitution wrong to have foreclosed such an
option (by banning neo-Nazis from contesting elections)?

 As a general matter, I would of course prefer to allow any and all parties to
contest electins, no matter how odious their ideology. But in countries where
democracy is not firmly established and backsliding to authoritarianism or
worse is a real danger, it seems to me the lesser of the available evils to
restrict the electoral rights of the old regime elements than to allow them to
imperil the rights of everyone else (including not just their political rights,
but often even their lives) by returning to power. Years from now, when liberal
democracy is more firmly established, the ban on "old regime" candidates should
probably be lifted (e.g. - I would not ban neo-Nazi candidates in Germany today,
as opposed to in 1950), but that is precisely because they no longer have a
serious chance of gaining power.

This approach is by no means perfect or without its costs, but it seems to have
worked reasonably well in several countries, while the risks of the opposite
approach are all too apparent in recent events in Russia and a number of other
recently democratized states.


Ilya Somin

Quoting RJLipkin at aol.com:

>
>
> In a message dated 8/29/2005 9:34:47 PM Eastern Standard Time,
> isomin at fas.harvard.edu writes:
>
> More  broadly, anytime one makes a transition from an oppressive or
> authoritarian  system to one that is at least relatively liberal and
> democratic, it is  essential to cut off the path of retreat by ensuring
> that the forces of the  old regime have no chance to return to power and -
> even more importantly -  to create the perception among the population more
> generally that such a  return has no chance.
>
>
>
> This raises three  serious problems.  First, beaus it threatens (though of
> course does not  necessitate) a "reign of terror"--excessive and unjust
> executions, imprisonment,  and so forth--it is extremely dangerous.  Second,
> it might
> not show  mercy to those in the old regime who are committed to democratic
> change. And  finally, a constitutional democracy must permit a "return"
> (suitably
>  modified of course) to certain vforms of the old regime. In Iraq if a
> majority  chose Saddam Two--an individual with Baathist aspirations who is
> currently
>  guilty of no crimes foreign or domestic, isn't that constitutionally
> acceptable?
>
> Bobby
>
> Robert Justin  Lipkin
> Professor of Law
> Widener University School of  Law
> Delaware
>