Iraqi Constitution: Better than Feared?

Amir Taheri believes most of the journalistic analysis of the Iraqi draft constitution suffers from pre-conceived bias against the war as well as a flawed understanding of Iraqi public opinion.


Even before its publication, the draft Iraqi constitution had been attacked by those who had opposed the liberation of Iraq in the first place.

The main attacks have focused on two issues:

Sunni outrage: The draft has angered Arab Sunni elites by proposing a federal structure for the new democratic state. But this is no way related to religious differences, as some nostalgics of Saddam Hussein in the West pretend.


But when all is said and done, the fact remains that a majority of Iraqis seem to prefer a federal structure — if only because they fear the return of despotism based on a strong central power in Baghdad. The least that anyone can do is to respect their views, even if one does not agree with them.

What of the claim, made in so many articles in the Western press in the past few days, that the Sunnis are enraged with the draft? The truth is that we do not know. Unlike the Shiite and Kurdish representatives, who were elected members of parliament, the Sunni politicians in the drafting committee were government appointees. (Having boycotted January’s general election, the Sunnis didn’t have enough parliamentarians to dispatch to the drafting committee.)

We shall have to wait until the Oct. 15 referendum on the constitution to find out whether a majority of Sunnis share the apprehensions of the Sunni politicos in the drafting committee. If they do, they could block the draft by voting against it: Four of Iraq’s 18 provinces have Arab Sunni majorities, and any two provinces can stop ratification by voting “no.”

The role of Islam: Many members of the drafting committee wanted Iraq to be re-named “The Islamic Republic of Iraq” — thus joining Pakistan, Iran, Sudan and Mauritania. The Iraqis, however, decided not to use the label “Islamic,” a sign that they don’t wish to set up a theocracy.

They did, however, acknowledge Islam as the religion of the state and a main source of legislation. Had they not done so, it would have been virtually impossible to persuade a majority of the Iraqis to vote for the new constitution.

Does this mean that the new constitution cannot be democratic? Not at all.

The draft recommits the nation to the Universal Declaration of Human Rights (of which Iraq was one of the original signatories). While no legislation could directly contravene the principles of Islam, it is also clear that there could be no laws that violate basic human rights as spelled out in the Universal Declaration.


THE Iraqi draft is not ideal. It won’t turn Iraq into the Switzerland of the Mid dle East overnight. It includes articles that one could not accept without holding one’s nose. But the fact remains that this is still the most democratic constitution offered to any Muslim nation so far.

And the people of Iraq have the chance to reject it if they feel it doesn’t reflect their wishes. That, too, is a chance that few Muslim nations have enjoyed.

With the new constitution, Iraq is taking a giant leap away from despotism. Many had hoped that Iraq would take a bigger leap. But wishes, alas, are not horses, at least not in politics.

Michael Barone also points to some other articles by experts seemingly without a political axe to grind that are more optimistic than most press accounts (for an example of the less optimistic, see “Bush Steps In as Charter Talks in Iraq Reach Breaking Point” in today’s NYT).

Excellent pieces of the proposed Iraqi constitution [yesterday]—a column by David Brooks in the New York Times, and an editorial in the Wall Street Journal. Brooks points to the favorable opinions of Clinton administration Ambassador Peter Galbraith, who has worked hard for freedom for the Kurds for many years, and former CIA agent and American Enterprise Institute scholar Reuel Marc Gerecht, who knows Iraq well. Many in mainstream media profess to be fearful that the constitution will lead to theocracy in Iraq. Galbraith, who has been scathingly critical of the Bush administration on many counts, and Gerecht, who has been critical on occasion also, disagree.

They make the point that Iraqis are not necessarily going to make the same constitutional and policy choices that Americans would. This is of course true of other democracies. Britain has an established Church of England, and the prime minister effectively (and the Queen formally) chooses the Archbishop of Canterbury. Canada provides public funding for Catholic and other religious schools. France bans girls from wearing headscarves in schools. Germany prohibits the publication of Nazi materials. We don’t do any of these things, and most Americans wouldn’t want to. But who would argue that Britain, Canada, France, and Germany are not acceptable representative democracies with acceptable levels of human rights? They just have different histories and different traditions, and have made different choices.

I agree that many are holding the Iraqi constitutional convention to unreasonable standards given the country’s history, ethnic and regional squabbles, and lack of institutionalization. Still, the lack of backing by key Sunni leaders could be fatal. With the deadline extended yet another day, there’s still time.

More likely, though, another round of elections–hopefully with greater Sunni participation–may be needed to break the deadlock. It’s far too early to declare the mission of democratizing Iraq a failure. But let’s not pretend things are going as planned, either.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Anderson says:

    Well, it’s certainly an improvement on our constitution in one respect:

    All forms of torture, mental or physical, and inhuman treatment are forbidden. There is no recognition of any confession extracted by force or threats or torture, and the injured party may seek compensation for any physical or mental injury that is inflicted.

    But I think Taheri is too optimistic re: Islamic law:

    The Supreme Federal Court will be made up of a number of judges and experts in Sharia (Islamic Law) and law, whose number and manner of selection will be defined by a law that should be passed by two-thirds of the
    parliament members

    So exactly how many of their “supreme court justices” will be Islamic clerics is up for grabs? Brrrr.

    And that court is going to have a lot to do:

    (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.

    Will *any* laws be passed? And what would a court made of, say, 2/3 Shi’ite clerics decide are the “principles of democracy”? How big a conflict between Sharia and “rights and basic freedoms” is a “contradiction”?

  2. John Ellis says:

    This article from the New York Post, a publication well known for its seriousness and balance, really is picking pepper out of fly poop to try to convince everyone that everything is going to be alright. In fact as is completely obvious the wheel is well and truly off the constitution cart for the simple reason that there are irreconcilable differences between these ethnic groups. Having invaded Iraq for no good reason Bush and co are desperate to get out and are looking for some fig leaf that will give them some cover. I’m afraid this is a society that is on the edge of a civil war, indeed you could say that it has started already, so our choices are accept that we broke it and have to fix it which means doubling the number of troops we have there or pull the plug and leave them to fight it out. Of course this will make Bush and the US look the greatest fools in the world but I suspect that they are mulling that option.

  3. Anderson, you’ve answered your own question:

    “…whose number and manner of selection will be defined by a law that should be passed by two-thirds of the
    parliament members.”

    If anyone can get 2/3 of the Iraqi Parliament to approve putting a majority of Islamic clerics on the Supreme Federal Court, I’ll eat my hat. Maybe if all the Shi’a were religious it would happen — but they’re NOT all religious, a significant fraction are secular. I predict (if we can get to the point where this constitution is approved) that the Supreme Court will be around 1/4 or 1/3 Islamic — enough that Islam’s voice is heard, but not enough to ram through Islamic family law without acquiescence of some other faction.

    And don’t forget that the Kurds are Sunni! That means about 40% of Iraq is Sunni, which means at least some of the clerics on the court will have to be Sunni. There’s no way they will get along with the boys from Najaf; and once again we have a check and balance built into the system.

    The Iraqi Constitution should be published by Megadodo Publications of Ursa Minor Beta. It needs DON’T PANIC on the cover in large, friendly letters.

  4. Anderson says:

    Well, I hope you’re right, but I suspect that Sunni and Shi’ite clerics (as opposed to rednecks) can probably find lots of common ground v. secularists, when it comes to whether due respect be paid to the Prophet.

    If anyone can explain differences between Sunni & Shi’ite sharia, that would be very interesting.

    Also, however many “secular” Iraqis there may be, will legislators be able to resist a vote for Allah?

    Time will tell.

  5. Jon says:

    The question that nags at me after reading this post is when does reality begin to set in? How many times have Bush supporters continued to say, over the last few years, that things aren’t as bad as they appear? Let me give you an update- all those ‘its not that bad’ assessments over the last few years have been wrong. Better times are not around the corner; the situation continues to deterioriate. As Chuck Hagel, one of the sr. Republican Senators on the Foreign Relations Committe said last week, the U.S. is losing in Iraq by every standard. This constitution is another failure. Our plans for a secular government in Iraq that protects the rights of women and minorities- and keeps the country together- are falling apart. There’s a strong chance that the worst of all possible outcomes is on the verge of becoming a reality: a Shiite, cleric-run state in the southern part of Iraq that’s closely aligned with Iran.

    None of those countries in Europe with state-sponsored religions allow clerics or religious figures to control the supreme court of the land. It’s pointless to try and paint a rosy picture by making frivilous and misleading comparisons between Iraq and the western world. Isn’t it time that we looked at reality?

  6. Christian Cherniss says:

    Oh my god the sky is falling. I think people need to be a little more patient here. There ARE alot of good things going on. However the MSM is to lazy to get out of the bars to go find it. I hear “Oh it’s to dangerous” but they can embed with the military to say go see the major projects in Najaf that aren’t being covered. These projects are being run by the military thus embedded journalists could see the progress made with the teaching hospital, Maternity hospital and the huge power grid upgrades there. However they are so blinded by the if it bleeds it leads philosophy that their slanting the coverage. It’s the same with the constitution. All they want to cover is conflict not the whole story.