Ignoring the good news on Iraq

The signing of Iraq’s interim constitution by the Iraqi Governing Council is great news for everyone who sincerely hopes that the US intervention in Iraq will result in positive, liberal-democratic reform in that war-ravaged country. Although it’s by definition a political compromise between competing forces within Iraq (see article and analysis from The Guardian), my preliminary assessment is that the interim constitution is an impressive first step towards a viable democratic structure. It’s a classically liberal democratic and federalist document, with a strong commitment to fundamental civil and political rights, enshrining an independent judiciary and separation of powers between the legislative, executive and judicial arms of government. Article 4 provides:

The system of government in Iraq shall be republican, federal, democratic, and pluralistic, and powers shall be shared between the federal government and the regional governments, governorates, municipalities, and local administrations. The federal system shall be based upon geographic and historical realities and the separation of powers, and not upon origin, race, ethnicity, nationality, or confession.


Islam is enshrined as the official State religion (Article 7), but religious freedom is also guaranteed:

Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice..

Rather worryingly, exactly who decides what are “universally agreed tenets of Islam” isn’t clearly defined. Presumably it’s the secular and independent Federal Supreme Court, which has a pretty clear and exclusive constitutional jurisdiction (see especially Article 44(B)(2)). Hopefully the Supreme Court won’t simply defer to sharia courts dominated by conservative ayatollahs. The constitutional requirement for “universal” agreement and the sheer variety of Islamic sects in Iraq, as well as judges’ universal instinct to enhance their own power and prestige, will probably ensure that the judiciary won’t adopt an attitude of wholesale deference to clerical authority. Nevertheless, this aspect remains the most likely source of destabilisation, along with the current marginalised role of the Sunnis.

Purist critics who argue that there’s an inherent contradiction between the constitution’s commitment to non-ethnic-based federalism and preservation of Kurdish autonomy simply don’t live in the real world. Just about every constitution ever created contains expedient contradictions designed to maintain stability and accommodate unavoidable political realities, and no constitution in Iraq would have been acceptable to the large Kurdish minority unless their existing high degree of self-governing autonomy was mostly preserved. Similarly with complaints by Human Rights Watch that the interim constitution doesn’t go far enough in protecting women’s rights: in a Middle Eastern Islamic country it’s remarkable that the document goes as far as it does in a liberal rights-guaranteeing direction.

The most reassuring aspect of the interim constitution is its clear, strong commitment to a timetable for democratic elections and constitutional development leading to full sovereign control:

  • Elections for the National Assembly shall take place by 31 December 2004 if possible, and in any case no later than by 31 January 2005. (Article 30(D))
  • The National Assembly shall write the draft of the permanent constitution by no later than 15 August 2005. (Article 61(A))
  • The draft permanent constitution shall be presented to the Iraqi people for approval in a general referendum to be held no later than 15 October 2005. (Article 61(B))
  • If the permanent constitution is approved in the referendum, elections for a permanent government shall be held no later than 15 December 2005 and the new government shall assume office no later than 31 December 2005. (Article 61(D))

That’s a very specific and tight timetable, and compares more than favourably with the UN-supervised constitutional development process in East Timor, which also took around 3 years despite the fact that East Timor is geographically tiny, has about 1/20th of Iraq’s population and a much more ethnically and religiously homogeneous makeup. Moreover, anyone who’s recently attempted to deal with the East Timor government on just about any level is well aware of its almost complete paralysis and hopeless ineptitude in most areas: in most practical respects UNTAET’s democracy-fostering efforts have been anything but a triumph. It would be difficult for the Americans to fail to do better.

In the circumstances, it’s both noteworthy and somewhat pathetic that as far as I can see not a single left-leaning Australian blogger has to date written a single word about the signing of Iraq’s interim constitution. For lefties, post-US intervention Iraq is conclusively assumed to be an unremitting succession of negative stories with the evil American imperialists getting their just desserts. Any information to the contrary is simply ignored. John Quiggin, for example, had no hesitation in blogging repetitively on his theory that the Bush administration had no intention of fostering democracy in Iraq, claiming misleadingly that “the rejection of “democratization” [by Bush] is clear-cut”. I wonder whether he’ll now admit that he was simply wrong (as I pointed out to him at the time by reference to various statements from Administration figures)?

PS- In fairness I should acknowledge that the typical embarrassed silence of most RWDBs about the failure to find WOMD in Iraq is equally pathetic.

PPS – Alan from Southerly Buster raises an especially interesting aspect of the interim constitution: the Transitional Executive Authority, which “consist(s) of the Presidency Council, the Council of Ministers, and its presiding Prime Minister.” Alan suggests the structure is likely to prove “unworkable”. Articles 35-40 create a structure that’s a unique hybrid of US-style separation of executive power with British-style responsible government, but that seems to me to be reassuringly democratic and accountable and by no means necessarily unworkable. The Presidency Council (President of the State and two Deputies) is elected by a 2/3 majority of the National Assembly, and then enjoys a partial legislative veto power almost identical to that of the US President. The Presidency Council must then unanimously appoint a Prime Minister, and then appoint a Council of Ministers on the advice of that Prime Minister. The requirement for unanimity on Prime Ministerial appointment may at first glance appear to contain the seeds of unworkability, but there’s a default provision for the PM to be appointed by a 2/3 majority of the National Assembly. That will still require a consensus/compromise candidate broadly acceptable to most major groups, but I see no reason why it shouldn’t be achievable. Given the strongly religiously and ethnically divided nature of Iraq, some such model aiming at engineering a degree of consensus (as opposed to the more typically “winner take all” approach applying in the US and Australia) was almost certainly the only way it proved possible to achieve a constitution that all groups were prepared to sign on and accept.

The PM and Council of Ministers exercise day-to-day executive power. Their selection by the Presidency Council is subject to “a vote of confidence by simple majority from the National Assembly prior to commencing their work as a government”, thus introducing an element of UK-style responsible government on top of the otherwise mostly US-style model of executive government. This formal UK-style accountability of the executive government to parliament is further enhanced by Article 40(A):

The Prime Minister and the ministers shall be responsible before the National Assembly, and this Assembly shall have the right to withdraw its confidence either in the Prime Minister or in the ministers collectively or individually. In the event that confidence in the Prime Minister is withdrawn, the entire Council of Ministers shall be dissolved, and Article 40(B), below, shall become operative.

All in all, a fascinating exercise in constitutional modelling, and in many respects reminiscent of our own Australian Constitution, which is also a hybrid of US and UK constitutional features. We can only hope that the Iraqi experiment will prove every bit as successful.

Update – Tim Dunlop has now posted on the Iraq constitution, and Alan from Southerly Buster and John Quiggin are both threatening to do so at any moment. I’ll link them from here as soon as they do. Tim’s post contains quite a few useful links to media, blogosphere and regional government reaction to the signing of the interim constitution.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Alan
Alan
2022 years ago

I’ve been working on an analysis of the constitution today. I’m not as enthusiastic about it as you are but I do think it’s an important first step, especially with its guarantees of human rights.

I suspect the Presidency Council (Articles 36 through 39) will prove unworkable. I think Article 59 is highly problematic as is the whole idea of constitution-making by an unelected body.

But I’ll address it in detail within the next day or so.

Ken Parish
Ken Parish
2022 years ago

Alan,

I’ve responded to your point about executive government in an addendum to my main post. Your other point, that constitutional development will be by a non-elected National Assembly, is mostly misconceived. There will be a fully elected National Assembly by 31 January 2005 at latest. The permanent constitution doesn’t need to be drafted until 15 August 2005. Clearly most of the constitutional drafting work will be done by a fully democratically elected National Assembly. At the very least any early drafting work by the appointed body will be subject to veto/overhaul by the popularly elected Assembly. It’s a bit rich to complain about this, when even the UN has concluded that it isn’t feasible to hold popular elections any earlier than that. It’s even richer when one recalls that Australia’s Constitution was drafted at a series of conventions many/most of the delegates to which were also appointed rather than popularly elected. Your criticism smacks of kneejerk nitpicking.

Alan
Alan
2022 years ago

Ken

The 1897/8 convention was entirely elected by the people. Its predecessors were elected by the colonial parliaments. The constitution itself was ratified by referendum in each colony. That is a radically different process from mere enactment by a council of CPA appointees. It’s probably best not to charge nitpicking when you’ve calmly conflated the Iraqi and Australian processes by an inaccurate declaration that the elected Australian delegates were appointed.

The UN found that popular elections could not be held in time for the interim constitution to be enacted by an elected assembly. That is a result of the security situation, a responsibility of the occupation, and also of the occupation’s failure to pursue the electoral register plan put forward by the Iraqi planning ministry (but not reported to the IGC) before the November agreement was signed.

I’ll keep my comments on the other matters for a longer piece at my own blog.

Dave Ricardo
Dave Ricardo
2022 years ago

Ken

“not a single left-leaning Australian blogger has to date written a single word ”

Since this happened overnight, isn’t it a bit soon to be berating anyone for not commenting, “to date”? I know the blog world is more immediate than the mainstream media, but it’s a bit much to expect people to comment on complex events in real time.

The ink isn’t even dry on the document, and you are jumping to, dare I say it, pre-programmed conclusions about other commentators’ motives.

Why don’t you give the lefty bloggers a reasonable period of time to digest and comment on the news – like, say,24 hours – before concluding that they are just being anti-American in not writing anything yet? For all you know, John Quiggin might have had more pressing things to do today.

Ken Parish
Ken Parish
2022 years ago

Alan,

My point was that delegates to Australian constitutional conventions, except the very last one, were apppinted rather than popularly elected. The fact that they were mostly appointed by democratically elected governments isn’t to the point. Moreover, you’ve completely ignored my principal response, namely that most of the constitutional drafting WILL be undertaken by a fully popularly elected National Assembly.

Ken Parish
Ken Parish
2022 years ago

Dave,

You make an entirely valid point, but stirring the possum a bit is usually an effective way to elicit spirited responses. And John Quiggin always takes this sort of cynical stirring in a very gentlemanly way.

Ken Parish
Ken Parish
2022 years ago

Geoff Honnor reckons my responses to Alan were a bit overly aggressive. He’s probably right. Alan is entering into constructive dialogue about important issues that many people regard as a big yawn, and I certainly wouldn’t want to discourage that in any way. Sorry Alan. Your contributions are welcome.

Alan
Alan
2022 years ago

I have to say that ‘Australian constitutional conventions, except the very last one,’ is a tad misleading. There were 2 Australasian federal conventions. The ‘very last one’ of a series of two hardly makes it an exception. Otherwise, this possum is quite unstirred.

Ken Parish
Ken Parish
2022 years ago

Alan,

There were 2 conventions in total: 1891 and 1897-98. The latter was spread over 3 sessions. In addition there were a number of conferences, which also weren’t popularly elected. Hardly misleading. In any event, all this is a red herring. The appointed National Assembly in Iraq will take office some time after 30 June, and then be replaced by a popularly elected Assembly no later than 31 January 2005. Thus the appointed body will have 6 months or less to embark on constitutional drafting. It’s unlikely to get any further than the very early stages, and anything it does can and will be reviewed by the elected National Assembly, which then has a little over 6 months to finalise the constitution. It’s then put to the people by referendum. Are you seriously suggesting this isn’t an extremely democratic process?

Niall
2022 years ago

It’s amazing what silver linings can be found in the darkest clouds when one dearly wants to.

John
John
2022 years ago

Ken, I plan to write something soon, but in the meantime you might want to look at this post from last year which I think gives a pretty accurate forecast of the way the situation has evolved so far. There’s a link, broken for the moment, to an earlier post which says of the (generally unattractive) outcomes that could arise in Iraq, the one with the best chance is a two-state solution, in which a Shiite majority ruled Iraq as a whole, while the Kurds maintained the effective autonomy they have now.Given that this was written when the Americans were still talking about regional caucuses, I think it stands up pretty well.

John
John
2022 years ago

As regards the specific issue of the commitment to democracy by the occupying powers, if elections are held this year or early next year it will be despite their best efforts of the US authorities to prevent them, and to install a compliant government through a ‘guided democracy’ system of caucuses. It was only the refusal of Sistani to acquiesce that killed these plans.

John
John
2022 years ago

The broken link I mentioned should lead here.

Homer Paxton
Homer Paxton
2022 years ago

M’Lord Ken,
what a naive person you are, The best constitution I ever read was that of the late Soviet Union. It was splendid and as can be seen the Soviet Union led the way in human rights!

I think a better judgement would be made is when Iraq is governing Iraq!

Ken Parish
Ken Parish
2022 years ago

Homer,

Your point is a rather glib, facile one, with respect. It’s certainly true that the old Soviet Union constitution contained a plethora of human rights guarantees which were mostly ignored. Respect for the rule of law in any country is created by a range of factors, and the text and structure of the constitution is only one of them. A country’s political history and culture are at least equally important.

That’s where Iraq may conceivably run into problems, but I certainly don’t accept the fundamentally pessimistic view of many (especially on the left) that liberal democracy is simply alien to Middle Eastern Muslim values and therefore doomed to fail. Cultures change and evolve over time, and Arabic culture has in any event historically been very advanced and sophisticated. The fact that illiberal, authoritarian systems have been prevalent in the recent past doesn’t mean Iraq can’t readily adopt essential liberal democratic values. Japan managed to do so after the Second World War despite having no such history, and many European countries successfully moved from monarchical, authoritarian rule to liberal democracy in the first half of the twentieth century. There is no reason to think that Iraq’s culture and history render that sort of development implausible, although the fact that it’s in considerable part being externally drive by the Americans is an obvious point of distinction with the European examples (though not Japan).

There’s going to be a process over a couple of years whereby Iraqis will become accustomed to electing representatives and being consulted over constitutional development. Democratic habits and assumptions will hopefully develop and become ingrained and durable by the time the Americans withdraw after the final constitution is adopted.

Moreover, the federal nature of the constitution, with the central government having carefully circumscribed powers and with much power devolved to the regions, should help to ensure a durable form of liberal democracy able to mould itself to diverse religious and ethnic sensitivities.

Returning to the Soviet example, apart from entrenched human rights protections (which, as you point out, can often be flouted in practice), the important features of a durable constitutional text include separation of powers (so no single arm of government can gain excessive power and each acts as a check on the other); an independent judiciary; and respect for property rights. All these features are present in the interim Iraq constitution, but were not (mostly) present in the Soviet model. Hence my tentative optimism is conditioned by:
(a) the fact that this is an excellent “best practice” liberal democratic constitutional text;
(b) there’s going to be a democracy-building process that will hopefully develop inherent respect for liberal democratic values and practices; and
(c) Iraq’s history and culture are not as inimical to liberal democracy as some assert.
A favourable outcome is a long way from being certain, and there are lots of things that might derail the process, but it’s an excellent first step.

Gary
2022 years ago

Ken

“PS- In fairness I should acknowledge that the typical embarrassed silence of most RWDBs about the failure to find WOMD in Iraq is equally pathetic.”

So do you think RWDBs are the only ones the should be embarrassed about the “failure to find WOMD”. That’s fair to exclude every body else with the same assumptions. pfft. Is some body going to advocate improving Intelligents gathering or continue the “Lie” meme.

Homer Paxton
Homer Paxton
2022 years ago

M’Lord Ken, Is it possible you could enlarge on the Iraq’s political history and culture which leads you to think democracy will triumph.

There are some glib and facile readers who fail to see these admirable qualties in Iraq.

Ken Parish
Ken Parish
2022 years ago

Homer,

Compared with most other third world countries (including those in the Middle East), Iraq has a fairly large educated middle class, as well as a sizeable competent bureaucrat class which, though no doubt imbued with authoritarian, illiberal tendencies, seems to be relatively free of corruption. It’s also a fairly urbanised society by third world standards, another factor which should assist in the development of an Islamic version of liberal democratic capitalism.

On the other hand, the stark tensions between Shia Sunni and Kurds present serious problems, which I don’t mean to minimise. I’m hopeful that a carefully designed federal structure, and an inclusive, democratic constitutional development process, will allow those tensions to be accommodated and dissipated over time. It certainly won’t be easy, however.

Sistani appears primarily concerned by the reassurances to the Kurds found predominantly in Article 53. Read in isolation it seems to create an autonomous Kurdish state within the state of Iraq. However, I think the proper reading (and one which will ultimately be adopted by the Supreme Court when it is established) is that the Kurdish regional/state government is clearly intended to be subject to the federal division of powers found elsewhere in the constitution. That includes exclusive federal government control of “resources” (i.e. oil) and arguably taxation (although that’s less clear – see Article 25(E)). It’s likely that, as occurred in the Australian federation, federal control of the purse-strings will give the national government significantly more power than appears from a superficial reading of the constitution. Since the Shiites will certainly be by far the strongest voice in the National Assembly and executive government, they are likely to be able to exercise much more effective practical control over the Kurdish regional government than Sistani probably realises at present. Hopefully the Americans can keep Sistani onside by emphasising these aspects, while avoiding terminally alienating the Kurds by stressing the formal preservation of their regional autonomy.

John
John
2022 years ago

Ken, since I’m the only blogger mentioned by name in your post, I’d be interested in your reaction to my response. In particular, do you think the now-aborted proposal for a government selected by regional caucuses, selected in turn by the occupying authorities, indicated strong support for democracy on the part of the Bush Administration?

Ken Parish
Ken Parish
2022 years ago

John,

No, clearly not, although I’m not familiar with the detail of it (which is why I didn’t respond substantively to your comment). However,I don’t believe that it was the only proposal on the table, nor that the only reason we ended up with the current model was Sistani. What we’re seeing is an inevitable dynamic of negotiation, proposal and counter-proposal aiming at achieving the most workable process acceptable to all parties. The fact that the US at one stage suggested an arrangement for selection of an interim government that was much less than optimally democratic doesn’t signify a lack of commitment to democracy: we’re talking about transitional arrangements rather than end outcomes, and there’s room for good faith disagreement about such things. I don’t see how it’s now possible to maintain the belief that the US opposes democratic government in Iraq, given the interim constitution and ongoing democratic transition that has emerged from the US occupation.

What we seem to have at present (and in relation to the events you touch on) is a US flirtation with separate but equal ethnic/religious regions (which would tend to thwart Shiite ambitions to be the dominant influence in post-Saddam Iraq); contrasted with a Shiite insistence led by Sistani, which insists on “one vote one value” and a strong central government.

The Shiite position is certainly “democratic” in the broad sense, but the dominance it potentially gives the 60% Shiite majority is clearly a matter of serious concern to both Sunnis and Kurds (and other smaller groups), who both fear Shiite oppression. American flirting with other (and less democratic) transitional models seems to me to spring from a motivation of keeping the Kurds, Sunnis etc aboard the process, rather than from any lack of commitment to liberal democracy as an end objective.

Nevertheless, I confess I haven’t been watching the evolution of the negotiation process to date as closely as I should have done, so I’m quite prepared to be proven wrong.

John
John
2022 years ago

Ken, I followed the debate reasonably closely, and Administration opposition to elections was consistent from the time of the post you linked to (Feb 2003) until early this year,when it became clear their position was unsustainable. The caucus plan was only dropped when it became clear that Sistani would veto it. There was no ‘dynamic of negotiation’ – Sistani has never recognised the legality of the occupation or negotiated with the occupying authority. In the sense that his opposition to the caucus plan was both necessary and sufficient to kill it, I think its clear, contrary to what you suggest, that Sistani is the only reason we have the current model.

An important problem with the aborted US plan is that the June 30 handover date now makes no sense. Originally, the Administration hoped to have its government in place by then, but now there will be an unstable interregnum until the elections are held.

Alan
Alan
2022 years ago

Compared with most other third world countries (including those in the Middle East), Iraq has a fairly large educated middle class, as well as a sizeable competent bureaucrat class which, though no doubt imbued with authoritarian, illiberal tendencies, seems to be relatively free of corruption. It’s also a fairly urbanised society by third world standards, another factor which should assist in the development of an Islamic version of liberal democratic capitalism.

I did a little research at NationMaster.

Iraq’s average years of schooling is 4 placing it 9th in the Middle East after such bastions of liberalism as Kuwait, Jordan, Bahrain, Syria and Iran.

Iraq is 67% urbanised placing it 11th in the Middle East after such bastions of liberalism as Kuwait, Qatar, Bahrain, Lebanon, the UAE, Saudi Arabia and Oman.

I have not found a stat for number of competent bureaucrats with authoritarian and illiberal tendencies who tend to support democracy.

Homer Paxton
Homer Paxton
2022 years ago

M’Lord Ken, Can I suggest you examine the Asian counties on looking at educational levels and then make some statement on how democracy is going in that sphere. Japan for example is still struggling to get a two party system and that is the most advanced!
Could you also provide an example of an ‘Islamic’ democracy?

Romantic left wingers do write well though!

trackback
2022 years ago

Possum Stirring In Lieu Of Fact Presentation

Ken Parish of Troppoarmadillo writes a typically rosy-glassed piece on the creation of a new Iraqi constitution as an expose`covering…

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2022 years ago

we the people

The Transitional Administrative Law begins with an untruth. The people of Iraq were involved with drawing up this constitution only in the persons of the 25 IGC members.

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2022 years ago

Iraq: Interim Basic Law

Many continue to see the resistance to the US occupation in Iraq as simply consisting of Saddam Hussein’s remnants. That

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2022 years ago

Iraq: Interim Basic Law

Many continue to see the resistance to the US occupation in Iraq as simply consisting of Saddam Hussein’s remnants. That

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2022 years ago

The interregnum

I just attended an interesting seminar at the UQ Law School on the interim Iraqi constitution, a topic that’s been discussed at length by Alan at Southerly Buster, and more briefly by Ken Parish . I learned some interesting things….