Iraq Constitution

[Sanford Levinson]

It is hard to recall that there is a war going on thousands of miles
away, with a constitutional ratification election coming up in a little
more than a month.  Brad Wilson had asked me, last week--which seems now
like years ago inasmuch as Katrina, every bit as much as September 11,
has become a (re)defining moment in the American polity--what I thought
of the Iraqi constitution,.  I promised an answer when I returned to
Boston, and here it it is:
 
>From seferal perspectives it is an excellent constitution, in fact
notably better than the US Constitution in many ways.  Consider, e.g.,
the use that could be made of Article 29, section 4, "Violence and abuse
in the family, school and society shall be forbidden."  There is
certainly no "state action" requirement here, and one could imagine a
world in which, for example, "honor killings" are now unconstitutional;
indeed, I would hope that spanking, let alone more severe child abuse,
would also be viewed as unconstitutional.   Similarly, I am enthusiastic
about the affirmative rights set out in Articles 30-34, including
health, education, environmental protection, and disability rights.
Would that the US Constitution were so enlightened.  Whatever explains
these sections, I presume it is not pressure from the Bush
administration.  Indeed, on the probably counterfactual assumption that
George W. Bush will ever again hold a news conference before truly
professional journalists, I would relish hearing his views about this
aspect of the Iraqi constitution, especially given the statements made
by his first FEMA director (who had been his campaign manager, of
course), that the national government basically had little role to play
in disaster relief and that it should be left to "faith-based" groups
like the Salvation Army and Mennonites.  (I wish I were making this up,
but of course I am not.)  
 
Similarly, I am impressed by the explicit recognition of the concept of
"states of emergency" in Article 59 and the 30-day time limit placed on
any such state, though it may be extended apparnently innumerable times.
I think there is much to be said for such provisions, as opposed to the
pretense of our own system that "emergency does not create power" and
therefore does not require the explicit crossing of a line, such as
suspension of habeas corpus.  Instead we get five-year-long PATRIOT acts
and a callow judiciary that basically submits, unless the Administration
goes insultingly far, at which time "pragmatists" like O'Connor and
Breyer will slap their wrist (though it remains to be seen if there are
any real teeth in the Hamdi opinion, not to mention the probability that
Roberts was chosen to join Thomas in the Schmittian wing of the Court).

 
And imagine the revolution in American politics if 25% of the House and
Senate were reserved for women.  It is an odd feature of the
constitution that it is at once both threatening to women's interests,
depending on whether traditional Islamic law, as interpreted by Shiite
clerics, dominates the ostensible commitment to democratic ideals, and
guarantees women a greater part in the polity than most Western
countries do.  
 
There are, of course, some provisions that I am less enthusiastic about
(putting to one side the degree to which Iraq is to be an Islamic
state).  One provision, Article 57(2), I simply don't understand,
inasmuch as it puts a rigid limit on how long the Council of
Reresentatives can meet.  We have in Texas a state constitution that
limits the legislative session to 150 days (I believe), and it is quite
disastrous.  
 
I note also that Article 48, regarding the Council of Representatives,
says that there shall be one seat for every 100,000 people from Iraq.
But, unless I misunderstand things, it's not at all clear by exactly
what process they are to be elected, e.g., by national party lists,
geographically-based territories, etc.  The statement that "They
represent the entire Iraqi people and are elected by general, direct,
secret ballot, and they take care to represent all groups of people"
suggests the former, which I find close to inconceivable, as a practical
matter.  (Will the Kurds, for example, not try to control the election
process in the functional Kurdistan?)  Perhaps someone on this list can
enlighten me on this point.
 
Then there are the "federalism" provisions, which seem to adopt a
version of the Canadian "notwithstanding" system with a vengeance.  I
imagine that some contemporary American states rights buff might envy
the Iraqis their strong federalism.  It is obvious, though, why anyone
concerned about a strong Iraqi state will have qualms about the
constitution on this point.  
 
One technical point:  I note that Article 153 states that "This
constitution comes into effect after its aproval by the people in a
universal referendum...."  Note that this says nothing at all about the
TAL requirement that any constitution must not be voted down by 2/3 of
three governorates.  Recall our own constitutional history and the
supplanting of Article XIII of the Articles Confederation, which
required unanimous approval of state legisltures, with Article VII of
the Constitution, which required the approval of only nine popularly
elected conventions.  If Article 153 is intended to be faithful to the
TAL, then let me suggest that it is extraordinarily badly drafted and
suggests, for example, that the leadership could declare the
constitution valid if it gets the approval of a majority nationwide,
whatever the result in the Sunni-dominated governorates.
 
 
 
One problem with this analysis, beyond the fact that it comes from
someone who knows all too little about Iraq, is that it is written as if
completely ignorant of the politics on the ground, i.e., the likely
Sunni response.  I presume that most of you saw Noah Feldman's op-ed in
the August 30 NYTimes, "Agreeing to Disagree in Iraq," which is
summarized by the Times as follows:

ABSTRACT - Op-Ed article by Noah Feldman, law professor, says major
problem in Iraq's draft constitution is one of who is agreeing, not what
they have agreed on; says placing Sunnis on constitution committee
despite electoral results in Jan, then ignoring them when their views
could not be reconciled, sent strong message to average Sunnis that
politics is useless if you are in minority; says Shiites and Kurds
should reach out to Sunni voters, pledging not to form southern
mega-region that would leave impoverished Sunnis trapped between de
facto Shiite and Kurdish states. 
 
I confess that this seems right to me, that the ultimate question is
whether the conflicting parties will in fact take a flyer on the new
regime.  I would be happily surprised if the constitution is ratified.
I assume, incidentally, that all of the relevant parties are trying to
figure out the consequences of Katrina on their own futures.  More than
ever, I wouldn't trust the US commitment to "stay the course," given the
ever-weakening stature of George W. Bush and the fact that expenditures
for the war are now directly competing with expenditures for the victims
of Katrina (not to mention, of course, the 45 million Americans who have
no health insurance and the increasing number of Americans who are in
poverty as a partial result of the priorities of the Bush
Administration).  
 
I hope this counts as a reasonable response to Brad's posting.  I look
forward to teaching about the Iraqi constitution in a course on
"constitutional design" that I will be giving at UT in the spring.  By
that time, of course, we should know its fate in the October election.
Whatever else can be said, both its process and the actual written
outcome are grist for professorial mills, whatever may be the
consequences for the Iraqi people themselves.
 
sandy
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