Iraq's Constitution: And the Winner is… the United States?

Everyone knew it would come down to this: women, Islamic law, and the Kurds. Even well over a year ago, when I was traveling through Iraq, scholars, activists and religious figures -- Sunnis, Shi'a and Kurds -- all felt these three issues would be the stumbling blocks for any future reconciliation between Iraq's three main communities.

But then Iraqis -- well, not all Iraqis; in fact, more like a few dozen, minus a significant Sunni contribution -- went ahead and actually drafted a halfway decent constitution. Perhaps a couple of years of violent insurgency is just the ticket to writing a democratic document. Certainly that's what it took in the US two centuries ago. Violence and constitution-writing in fact have a long history together; just ask the French, who saw their first constitution weakened by political instability and finished off by Napoleon's "coup de grâce" of 9 November, 1799.

But reading the document, it's hard not to conclude that Iraqis are in for quite a bit more bloodshed before the ink dries on a final version acceptable to most citizens. In France it took till 1848, followed by the birth and death of several more "republics" before the current model, so admired by Republicans here in the US, was implemented. Of course, in the US it took the Civil War before the major issues of disagreement left out of our Constitution were settled once and for all.

However positive a document the constitution is compared with the kind of rule of law that characterized Saddam Hussein's murderous regime, there are many problems with the current version, the most important of which aren't even being discussed in the mainstream press. To begin with, as many have commented, the role religion is presented in a very confusing manner. And it's especially confusing when, as Juan Cole rightly points out in his blog, the English version floating around the electronic ether is in some places "so untechnical as to be useless." To whit, if you read the English version, it's hard to imagine how Article 2 can reconcile the statement that "No law can be passed that contradicts the undisputed rules of Islam," with "No law can be passed that contradicts the principles of democracy... [and the] rights and basic freedoms outlined in this constitution."

I couldn't for the life of me figure out what the "undisputed rules of Islam are" (and neither could many colleagues I asked). Perhaps the drafters meant components of the shar'ia, or Islamic law, on which there has long been "ijmaa'," or consensus. But Islamic legal historians accept that the consensus changes over time although most fuqaha, or legal scholars, feel that the original consensus is still binding. Indeed, one of the biggest arguments amongst radical Islamists and their more moderate counterparts is whose consensus and from what period should guide Islamic law today.

However, then I saw the Arabic text, confirmed by Cole, that uses the more well understood term, "established laws of Islam" (thawabit ahkam al-Islam). As Cole points out, go see the Iranian legal code if you want to know what they are. Either way, where there is consensus, such as on the prohibition of alcohol, that is likely to infringe on the rights of non-Muslim Iraqis to drink (not to mention most of the Muslims I met in Iraq, who also drink, and the western journalists, who probably couldn't survive more than a few days without a constant supply of Arak, the national drink, at fifty cents a bottle. More broadly, for many Muslims, especially conservative ones, it is an "indisputable rule" of Islam that women do not have the same rights as men (rather, as one scholars explained it, they are "complimentary" or "equal but different"), while for the most conservative and/or radical Sunnis it is undisputed that Shi'a are heretics who deserve death or at best subjugation--at least according to Musab al-Zarqawi. Giving women or Shi'a "equality before the law," as stated in Article 14, is sure to cause some controversy.

So is Article 17, which states that "Each person has the right to personal privacy as long as it does not violate the rights of others or general morality." But who determines what "general morality" is? This is a huge loophole through which the rights and freedoms of millions of Iraqis could be severely restricted depending on how those in power, particularly the religious scholars in the Federal judiciary, define this term. So are the rights of defendants, who according to Article 19 are guaranteed trials in open court, "unless the court decides to make them secret."

These are the problems with what's in the Constitution. Perhaps more problematic is what's left out. The four main areas that are barely touched upon if at all are rules regarding privatization, the rights of workers, and two seemingly minor issues (at least they must be minor, since they're hardly dealt with): the permanent presence of foreign troops on Iraqi soil and foreign control or management of the country's oil resources.

Starting with privatization, during the year of official American rule over Iraq, CPA "Administrator" L. Paul Bremer issued half a dozen "orders" (particularly Orders 39, 40, 49 and 18) that mandated the privatization of state-owned enterprises; allowed 100 percent foreign ownership of businesses except oil; offered foreign firms the same privileges as domestic companies; allowed unrestricted, tax-free transfers of profits out of the country; and placed the duration of ownership licenses at 40 years.

In an elision worthy of Jacques Derrida, the constitution says nothing about any of these "orders," which likely means that they will remain the law of Iraq for the foreseeable future. In fact, aside from a prohibition on non-Iraqis owning real estate in Article 23, there is no prohibition of foreign ownership of anything, including, it seems, oil. Article 109 does say that "oil and gas is the property of all the Iraqi people in all the regions and provinces," but it doesn't say "exclusive" property, not does it specify in any manner what role foreign--read American and British--firms will play in its extraction and sale.

The next article, 110, does achieve an important victory in balancing the rights between Kurds and Shi'a who live in the oil rich regions yet have historically been shortchanged in receiving government funds and protecting the interests of the previously dominant Sunni minority. Specifically, it mandates that "revenues will be distributed fairly in a manner compatible with the demographical distribution all over the country. A quota should be defined for a specified time for affected regions that were deprived in an unfair way by the former regime or later on, in a way to ensure balanced development in different parts of the country."

But it says nothing about who will control the production and sale of the oil other than saying that the government will "rely on the most modern techniques of market principles and encouraging investment." As any neoliberal will tell you--particularly the ones ensconced in the US Embassy in Baghdad--the most modern techniques of market principles demand that American oil companies be allowed to control Iraq's oil, or at least have a strong hand in its extraction, management and sale. Indeed, how else are we to interpret articles 25 and 26, which state that "the state shall guarantee the reforming of the Iraqi economy according to modern economic bases... diversifying its sources and encouraging and developing the private sector."

Pay close attention to the word "reforming" here. You can't reform something until you de-form it first. Now we know what's been the point of the last two and a half years of insurgency and chaos. What better way to literally erase the existing political-economic system and create a tabula rasa for its miraculous democratic reformation? As Defense Secretary Rumsfeld warned at the inception of the insurgency, Democracy can get pretty ugly...

Indeed, it's pretty clear who's smiling in Washington and Texas today. Come to think of it, while everyone's attention has been on the insurgency these past two years, what exactly do we think Exxon-Mobil and its sisters have been busy doing in all the prospecting "blocks" set aside for them in 2002 (yes, well before President Bush supposedly even considered invasion) by Vice President Cheney's secret Energy Task force, which literally erased the map of Iraq and redrew it to suit the interests of Big Oil (for a copy of the map, obtained by the Freedom of Information Act, go here.

But so what if American companies get to control Iraq's oil (although we don't seem to like others to control "our" oil, judging by the uproar over China's proposed purchase of Unocal)? Who can blame the President and Vice President for wanting such an open relationship with Iraq when our erstwhile friends the Saudis have for so long screwed America by not letting our companies invest in oil exploration and development based on the silly excuse of "strategic national interest"? With a potentially trillion dollar bill for reforming the country, it's the least Iraq can do for us in return.

The most gaping hole in the Constitution, the one that virtually guarantees a healthy insurgency for years to come, is the one right around Article 108 where there should have been a clause stating that no foreign troops are allowed to maintain long term or permanent bases on Iraqi soil. This clause is the absolute sine qua non for the termination of the insurgency. Sunni leaders have flatly stated that with a detailed pledge by the US to remove all troops they would draw down their resistance, and just as forcefully warned that sans such a statement the insurgency would continue.

But as anyone who's been to Iraq since the US invasion will tell you, the US has no plans to withdraw anything close to all its troops from the country in the near future. All the arguments back and forth about "troop reduction" have been about just that--reducing troop levels to a semi-permanent number of perhaps a few tens of thousands in half a dozen or more hardened bases, that will replace the bases in Saudi Arabia and guarantee our strategic control over the world's major oil producing region right at the moment that oil is becoming more precious than ever before.

We've got the oil, we've got the permanent bases--why do you think George Bush never stops grinning? Yet this is also why Bush can't face Cindy Sheehan and answer her question about when he will bring all our soldiers home so no one else's son or daughter has to die in the oil soaked sands of Iraq. The fact that the newly elected Iraqi government didn't have the guts to do what nearly every single Arab Iraqi demands (Kurds, for obvious reasons, want as long and heavy American presence as possible)--require the full withdrawal of US troops at the earliest possible moment--demonstrates how cowed it is by the US, and who's really running the show in Iraq.

There are other problems as well. The Constitution states in Article 22 that "work is a right for all Iraqis in a way that guarantees them a good life, yet it is hard to see how merely a "consideration of rules of social justice" will interfere with the fact that the law specifically "regulates relation between employees and employers on an economic basis," particularly when the government also mandates for itself the right to regulate union activity and civil society groups as well (Article 43). Indeed, judging by the harsh treatment of workers by the government in the last two years, I would count on Iraq becoming a "right-to-work" state a la Mississippi.

Moreover, the Federal judiciary is composed of both " judges and experts in Sharia (Islamic Law);" as far as I can tell, supporting unions and civil society is not an "undisputed rule of Islam," although most Muslims I know believe it is crucial to the functioning of a modern society. Yet none of the Muslims I know has any chance of joining the Iraqi judiciary, so their views don't really count.

At least in one area Iraq's constitution is an advance over most contemporary political charters, and certainly our own. Article 33 states that "every individual has the right to live in a correct environmental atmosphere... The state guarantees protection and preservation of the environment and biological diversity." This is something that environmentalists in the US can only dream of being enshrined as a constitutional right here. Of course, with all the depleted uranium and unexploded land mines and other ordinance floating around Iraq, it will sadly be quite some time before anyone has the luxury to worry about biological diversity. But at least on paper Iraqis are ahead of the game. Let's hope there's still an Iraq to preserve by the time people start arguing over hybrid carpool lanes and fuel efficiency standards, even if the car-pool lanes are built by Halliburton...