The Iraqi Constitution project

Posted: Sep 02, 2005 12:00 AM

WASHINGTON -- I've never been a big fan of the Iraqi constitution project.  Issues such as federalism and the role of Islam are simply too large and fundamental to be decided this early in Iraq's democratic evolution. It is more appropriately the work of years as Iraqis learn accommodation and tolerance and the other habits of self-government.

     I wrote two months ago that forcing a resolution of Iraq's cosmic dilemmas by some arbitrary date could only serve to exacerbate already existing divisions. This has indeed happened. Nonetheless, the Iraqi constitution project is a fact. It has produced a document. It goes to referendum on Oct. 15. And all the lamentations and rending of garments over the text are highly overblown.

     The idea that it creates an Islamic theocracy is simply false. Its Islamist influence is relatively mild. Chapter One, Article One: ``The Republic of Iraq is ... a democratic, federal, representative (parliamentary) republic.'' The word Islamic is deliberately and importantly omitted.

     More specifically, the rule of sharia is significantly constrained. All constitutions have their ``thou shalts'' and ``thou shalt nots.'' In America, the constitution proper says what the government can and should do. The Bill of Rights says what the government cannot and must not do -- impose religion, force confessions, search and seize. It is the ``thou shalt nots'' that are your protection from tyranny.

     The constitution writers in Iraq finessed the question of Islam by posing it as a thou shalt not. No law may contradict Islam. But it also says that no law may contradict democratic principles, and that the constitution accepts all human rights conventions.

     This means that there are two gatekeepers for the passing of any law. Insofar as the constitution is adhered to (a heretofore dubious assumption in that part of the world), democratic rights are protected from the imposition of sharia. Establishing a double roadblock to new legislation is an excellent way to launch Iraq's first experiment with limited government.

     In any case, the real Gordian issue was never Islam, but federalism. The Sunnis object to devolving power away from Baghdad because they happen not to be sitting on oil and have spent the last century plundering everybody else's and turning villages like Tikrit into monstrous treasure cities with the proceedings. With this constitution, that is going to stop. As it should. The only problematic proposal was for the Shiites to have the right to create a nine-province super-region as autonomous as Kurdistan.

     That might establish de facto self-governing entities within the shell of a weak Iraqi central government. So what? The only major objection is that the neighboring countries would vigorously reject a fully sovereign Kurdistan or Shiite  ``south Iraq.'' However, maintaining the shell of Iraqi sovereignty might mollify the Turks and Saudis and others who would resist outright independence. It might even turn out to be the best possible solution for Iraq's deep religious and ethnic divisions. After all, as one wag said, Iraq was not created by God, but by Winston Churchill. And it was not one of his most blessed creations.

     Moreover, a Basra-based Shiite super-region was not enshrined in the constitution. It is permitted, but not mandated. That question will be left to future parliaments. As it should. Again, the cosmic problems of identity and the distribution of power should be deferred to legitimately elected parliaments as they develop the habits of democracy over time.

     In the end, the Sunni representatives walked out. It would have been nice if the Shiites and Kurds had been more accommodating, though to expect such niceness from a majority population that had suffered 30 years at the hands of a Tikriti gangster regime rooted in the Sunni minority, is perhaps to expect too much.

     Nor have the Sunnis acted in a way that might encourage such niceness.  First they boycott the elections that would have given them a real say in the constitution-writing process. Then they support a murderous insurgency that is killing dozens of Shiites and Kurds every day, to say nothing of coalition troops. Then they demand a veto on the proposed constitution. Chutzpah.

     We went into Iraq knowing that we were going to overturn the political order. The introduction of democracy would inevitably take power away from the former ruling community -- the 20 percent of the population that ruled with uncommon brutality -- and transfer it to the other 80 percent. That the previously victimized 80 percent should not wish to be held hostage to the political demands of their former oppressors should hardly be a surprise. Nonetheless, they still managed to produce a perfectly reasonable constitutional document that deserves far more respect than it has received from the knee-jerk critics here at home.