August 29, 2005

The Iraqi Draft Constitution
— Ace

... is translated here.

I'm not done with it yet, but the early bits of it seem more of an expression of principles and desires than an actual blueprint for governance. I assume the "crunchy bits" come later.

I think this is interesting:

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.

Note that the document is vague in that (a) clause. Does (a) mean no law can contradict the rules of Islam, all of which which are undisputed, or does it mean -- hope, hope -- that no law can contradict the rules of Islam which are in fact found to be "undisputed," whereas the "disputed" rules can be contradicted by law? Seems it could be read either way.

In any event, (b) and (c) seem to guarantee democracy and freedom, and if there's a tension between democracy and freedom and the rules of Islam, the document doesn't, by its own express terms, state which will have the higher priority.

As has been pointed out, these sorts of vaguaries are common in constitutions. Ultimately most questions are settled by political/popular means, not by recourse to a previously-written guarantee. If the Iraqis want a theocratic Shari'a based state, they'll have it, whatever the constitution may say, and if they want a secular state that pays respect to Islam while not being dictated to by Islam, they'll have that too.

Posted by: Ace at 08:23 AM | Comments (10)
Post contains 287 words, total size 2 kb.

1 Ace,

If this constitution is adopted, I think there can be some positive developments that, like Instapundit likes to say, are a feature and not a bug. Being that the constitution is heavily weights lawmaking towards being driven by the legislature, and not a clerical elite, the debate of the rule of Islam will enter public debate for the first time. I think this is a positive development.

I argue the point in further detailhere.

However, after my original post, it looks as if the Sunnis are going to back out, and federalism may crumble. This could change the calculus greatly, and making my argument moot.

Posted by: TF6S at August 29, 2005 08:35 AM (ll107)

2 This tends to suggest a "lowest common denominator" form of lawmaking to me. For instance, a law mandating prayer 5 times per day would violate the "rights and basic freedoms" clause. So would a law mandating that women wear the abaya, or a law making possession of a Christian Bible illegal.

On the other hand, this does leave open areas where they're in basic conflict e.g. divorce law. A strict reading of this would suggest that there are going to be large areas where the Parliament is not capable of writing law at all, even areas where law is generally accepted as being needed.

Posted by: Steven Den Beste at August 29, 2005 08:46 AM (CJBEv)

3 Great. 1900 soldiers dead for an Islamic constitution and a civil war. And, most of you support this policy hook, line and sinker.

Posted by: Bill at August 29, 2005 08:46 AM (Wq3Yh)

4 (what I SHOULDA told him was) a thought occurred to me just after I posted the last comment:

To me as an engineer, a thing is what a thing does. That's certainly the case here. In practice we're going to have to wait and see just what this constitution really does mean.

Posted by: Steven Den Beste at August 29, 2005 08:47 AM (CJBEv)

5 Great. 1900 soldiers dead for an Islamic constitution and a civil war. And, most of you support this policy hook, line and sinker.

Self-determination is a bitch, I'll grant you that.

Posted by: ace at August 29, 2005 08:53 AM (W7JEQ)

6 I got problems with Islam having any part of the constitution, but its their constitution. They've got to write it, they've got to vote on it, and they've got to live with it.
Personally I was for making Iraq into "New Texas" but what they're doing is better than what they had.
Besides, its written on paper, not carved in stone.

Posted by: Iblis at August 29, 2005 08:56 AM (9221z)

7 It's called kicking the can down the road so the next guy has to deal with it, meanwhile hoping for the best. You know, like most of real life.

Posted by: Mikey at August 29, 2005 09:08 AM (O9Cc8)

8 (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.


Hmmm . . . on the upside, there won't be too much legislation at all if this is interpretted literally.



It's called kicking the can down the road so the next guy has to deal with it, meanwhile hoping for the best.

Hey - this isn't supposed to be about Clinton's approach to terrorism, Iran and North Korea!

Posted by: holdfast at August 29, 2005 12:46 PM (jvO9O)

9 "A strict reading of this would suggest that there are going to be large areas where the Parliament is not capable of writing law at all, even areas where law is generally accepted as being needed."

Fine. So there was in evrey 19th century parliamentary democracy.

Baby steps, people. (What *about* Bob?) Not to infantilize. But this is the first pluralist constitutional negotioation between the Pillars of Hercules and the Hindu Kush to get this far and mean this much. Flashing on T.E. Lawrence here.

The more and the more freely they talk, the less they will fight. Juan Cole, for once, has it right - only people with no concept of true civil war claim one is going on already.

Posted by: Knemon at August 29, 2005 03:04 PM (mx24J)

10 The more laws a constitution prevents, the better.

It worked for us for 140 years.

Posted by: Bob Hawkins at August 30, 2005 05:23 AM (2LKPp)

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