10.11.05
Why Iraq needs to reject its Constitution
Iraq would be far better served rejecting the draft constitution due to be voted on later this month and forcing their leaders to go back to the drawing board and stop smoking their crack pipes. The constitution as it stands is an unworkable piece of junk which will cause massive problems for Iraqi society and government in the future, either hamstringing them into a failed democratic-socialist economy worse than anything Europe has seen or resulting in the failure of central governance and a future breakup into states.
The document is 25 pages, half of which are a simply government structure (which is complex enough) but the remainder is a grab-bag of legislation, half baked ideas and even contradictory assertions that the future Iraqi government must adhere to. It won’t work because it can’t work.
My primary concerns on the document are that it drops way too many socialist imperatives on the state – free health, free education, free childcare, free pensions. Those cost money and not insignificant amounts. For a state to maintain all of those things at a universal level raises the level of taxes beyond burdensome and into the realm of insanity, even for an oil rich state like Iraq.
My secondary concerns are with the overt complexity and enumeration of what is effectively legislation and not simply a framework for legislation to grow into. Once Iraq develops ambulence chasing lawyers (and they will), their Supreme Court is going to have one hell of a time interpreting the constitution in any sort of rational manner.
Going into some more detail on the more critical of the flaws:
Article (2): 1st – Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.
The order of precedence for basis of law puts Islam above everything else, including the constitution itself. That’s not a stable system of governance as it always puts the religious question of whether any law enacted either by the constitution or the government is actually enforceable based on whether it conflicts with Sharia.
Article (7): 1st – Entities or trends that advocate, instigate, justify or propagate racism, terrorism, “takfir†(declaring someone an infidel), sectarian cleansing, are banned, especially the Saddamist Baath Party in Iraq and its symbols, under any name. It will be not be allowed to be part of the multilateral political system in Iraq, which should be defined according to the law.
Banning parties is silly and anti-democratic – if the majority of the people want Saddamist Baathism back (which I doubt, but this is a mental exercise) then doesn’t the principle of democracy outlined in Article 2 give them the soverign right to vote them back?  Banning “trends†is even worse because defining a trend is ambiguous and often partisan in nature.
Article (8): Iraq shall abide by the principles of good neighbourliness and by not intervening in the internal affairs of the other countries…
Iraq is constitutionally forbidden to intervene in the affairs of other countries. This effectively prevents any sort of foreign military action.
Article (16): Equal opportunity is a right guaranteed to all Iraqis…
Without bounds, equal opportunity is not a good thing because it’s not a practical thing. The fact of human life is that people don’t have equal opportunity – some are born into richer families, some into poverty. To legislatively force equal opportunity places an overwhelmingly large burden on society to effectively correct the “wrongs†nature deals to people at every level.
Article (17): 1st – Each person has the right to personal privacy as long as it does not violate the rights of others or general morality.
This can be phrased to simply say that you have no right to privacy because when you’re arbitrarily declared “immoral†then you forfeit whatever right you previously had. Legislated morality is always a dangerous and anti-libertarian issue.
Article (19): 12th – (a) (Arbitrary) detention shall not be allowed.
This clause is expanded on later, but effectively prevents the police from detaining anyone without charges. Ask any police officer what happens if they cannot detain a person before charging them and I think they’ll laugh at you. Essentially it prevents the police from being effective.
Article (21): 1st – An Iraqi shall not be handed over to foreign bodies and authorities.
This should be called the “Terrorist protection clauseâ€. Any Iraqi that commits a crime in a foreign nation and then makes it back to Iraq is free. They cannot be extradited.
Article (27): 1st – Public property is sacrosanct, and its protection is the duty of every citizen.
This seems wrong. How far does the duty extend? The way it’s worded, you are committing a federal offense if you don’t get involved in the protection of public property, in other words, you could be imprisoned for inaction.
Article (28): 2nd – Low-income people should be exempted from taxes in a way that guarantees maintaining the minimum level necessary for a living.
While the definitions are probably part of legislation, this provision makes the crafting of tax law a somewhat tricky business as the “minimum level necessary†is bound to require some interpreting and even legislating from the bench from their Supreme Court.
Article (29): 1st (b) The state shall guarantee the protection of motherhood, childhood and old age and shall take care of juveniles and youths and provide them with agreeable conditions to develop their capabilities.
As I said before, the care of motherhood, childhood and old age is guaranteed by the state. That’s an enormous expense and certainly doesn’t encourage private retirement savings.
Article (30): 1st – The state guarantees social and health insurance…
The state also guarantees social and health insurance (whatever social insurance means). Given the costs of health insurance in the US, this is yet another huge hit to the Iraqi federal budget.
Article (31): 1st – Every Iraqi has the right to health service, and the state is in charge of public health and guarantees the means of protection and treatment by building different kinds of hospitals and health institutions.
The universal right to health service is massively expensive, especially in the unrestricted form guaranteed by this constitution. That clause alone could virtually bankrupt the government, and would also be impossible to get a 2/3 majority to remove.
Article (32): The state cares for the disabled and those with special needs and guarantees their rehabilitation to integrate them in society.
State guaranteed disability and “special needs†pensions with the goal of rehabilitation and not just treatment. Many more federal $$$ going away here.
Article (33): 1st – Every individual has the right to live in a correct environmental atmosphere.
2nd – The state guarantees protection and preservation of the environment and biological diversity.
Again, the state is constrained in its action that any development must guarantee the protection and preservation of the environment. Industrial development could be brought to a screeching halt on this one if the Iraqi Sierra Club gets off the ground, or more likely if Greenpeace or others get involved locally.
Article (34): 2nd – Free education is a right for Iraqis in all its stages.
I think I mentioned that thing about federal $$$ being chewed up by the constitution? Well, here’s another shot. Guaranteeing a free education to anyone that wants it is a definite way to pack your colleges with people who really don’t want to work and farming that financial burden off onto the taxpayer.
Article (36): The state guarantees, as long as it does not violate public order and morality:
1st – the freedom of expressing opinion by all means.
2nd – the freedom of press, publishing, media and distribution.
3rd – freedom of assembly and peaceful protest will be organized by law.
The “public order and morality†clause effectively annihilates those rights. Declaring something immoral (which is a highly subjective categorization) can prevent opinion, the press and assembly. In other words, you don’t have those rights at all.
Article (38): The freedom of communications and exchanges by post, telegraph, telephone and by electronic and other means is guaranteed. They will not be monitored or spied upon or revealed except for legal and security necessity in accordance with the law.
Again, the “except…†clause means the right is non-existant. It’s just fluff to make it look good without actually being good.
Article (45): Restricting or limiting any of the freedoms and liberties stated in this constitution may only happen by, or according to, law and as long as this restriction or limitation does not undermine the essence of the right or freedom.
In other words, the freedoms enumerated only mean the “essence†of the freedoms and not the actual enumerations. This article virtually nullifies the entire section as it reduces everything to this ephermal “essence†and that’s what the Iraqi Supreme Court is going to have to decide on every single issue.
I’m leaving out Chapter 3 onwards in the analysis because that’s essentially the part that is just the formalized structure of government. If you read through it, it’s rather complex – especially at the federal/state interaction level but probably workable, at least if it wasn’t hamstrug with the largely half-baked ideas on freedom and non-freedom.
To summarize, the Iraqi draft constitution should be sent back for a rethink. Constitutions should be short and to the point, not some rambling document with a bunch of “wouldn’t it be nice†ideas tossed in. If this constitution passes then Iraq isn’t going to become any sort of shining democratic light in the Middle East. It will be a tar-pit of legal and administrative nightmares that will leave the people yearning for the days of simpler governance.