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” 1 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.
- by Bush