March 19, 2004, 9:20 a.m.
The Rights Way
The Republic of Fear becomes the Republic of Hope.

By Nina Shea

Under Saddam Hussein, Iraq was the "Republic of Fear," to borrow the title of the seminal human-rights critique by Iraqi dissident and intellectual Kanan Makiya. One year later, it has become the "Republic of Hope."

Multiple layers of secret police, state security, military intelligence, and party militias were employed to insure that Iraq served the will and whim of Saddam Hussein, his sons Uday and Qusay, his Tikriti clan, and trusted Baath-party aides.

As we all now know, its chamber of horrors included a children's prison, torture and rape rooms, nationwide dungeons, and hundreds of thousands of mass graves.

There was no freedom of expression, association, or assembly. The status of press freedom was personified by Mohammed Saeed al-Sahhaf, better known as "Baghdad Bob." Clergy, sermons, religious literature, and ceremonies of all religious groups were closely circumscribed. There were no rights to due process or fair trial. Freedom House's annual survey of civil and political freedom ranked Iraq at the very bottom in both categories.

Its Kurdish and Shiite populations had suffered monstrous persecution at the hands of the government. Women's rights were largely an illusion (Senator Clinton's claims not withstanding). As Makiya wrote in 1989: "[W]omen...gain somewhat in status in relation to these particular groups of men [kinsmen], only what they must lose in freedom to the Ba'ath.... Male domination has not been done away with; it has found a substitute in the all-male Revolutionary Command Council, the higher army command, and the ever-so-male person of Saddam Hussein."

The jackboot lifted when the Hussein regime fell last April. The state's instruments of violence were no more.

The country continues to suffer from economic underdevelopment, elections are still a year off, and civilian casualties mount from a guerrilla Baathist insurgency and Islamist terror. Despite all this, under the sovereignty of the Coalition authority, Iraqis have been enjoying unprecedented individual freedom and human rights. Appreciation of this fact can only account for the results of last month's poll by Oxford Research International, in which 70 percent of the Iraqi respondents said that things in their lives were going "very" or "quite" good.

The single most significant human-rights advance since the toppling of Hussein himself was the adoption of an interim constitution on March 8. Its underlying philosophy — devolving the centralization of governance through individual rights, minority protections, a weak presidency with a strong legislature, and federalism — is the diametric opposite of anything that ever existed in Iraq or now exists in the Arab world. Its powerful bill-of-rights section grants all the human rights and freedoms denied by Saddam Hussein.

The most revolutionary among them is the guarantee of individual religious freedom found in Article 13. In granting religious freedom to the individual, and in specifying both freedom of belief and religious practice, this provision:

Protects women from having their legal rights — such as matters of inheritance, marriage, dress, or even the extent of their participation in public life — determined by religious clergy;

Protects reformers and (political) dissidents from being prosecuted for blasphemy and apostasy crimes such as in Pakistan, Iran, Saudi Arabia, and even in today's Afghanistan;

Grants non-Muslim minorities a full religious life beyond worship services within church confines and releases them from the traditional second-class dhimmi status;

Grants all Muslim sects legitimacy and non-discrimination, the absence of which has been a persistent problem throughout the Middle East.

Some ambiguities concerning the role of Islam are raised in Article 7, which declares Islam as the state religion and "a source" of legislation and provides that no law can contradict "the universally agreed tenets of Islam." I had feared that the vague wording of an earlier draft raised the possibility that unelected clerics could hold veto power over the legislature in determining what is "Islamically correct." However, Article 7 in its final form also bars laws that contradict " the principles of democracy," and the Bill of Rights, two conditions that would serve as checks on Islamic sharia law. Furthermore, in its overall context, no fair reading of the interim law could find a basis for an Islamist state. Over a dozen other constitutional provisions reinforce the Bill of Rights, including ones stating that 1) a federal system is not to be based on "confession"; 2) the Bill of Rights is binding on local authorities; and 3) no one may be detained for reason of political or religious beliefs.

This is a forward-looking democratic constitution that properly distinguishes religion from the state; it shows respect for Islam while leaving no question that the rights and freedoms of the individual are protected.

This democratic milestone of a constitution has been given short shrift in the American media (but not NRO). News of its signing shared headlines with announcements that Grand Ayatollah Sistani disapproved of it. American pundits spoke of it with a tone of anxious propitiation — will the ayatollah allow it to stand? No doubt that among the liberal media there is a reluctance to credit anything the Bush administration accomplishes in Iraq. But, there is also a genuine uncertainty about the importance of the document given its interim, temporary status.

This is a mistake. Here are five reasons why this document matters:

As seen in South Africa, interim constitutions tend to have staying power. Since amending this constitution will be procedurally difficult, it will likely be the principal template for the permanent constitution.

The drafting process has forced the 25 disparate members of the Iraqi Governing Council to develop some democratic habits in short order — several told how they learned to work together and to compromise. It also has begun a debate among the populace. It is beginning to serve the function of the Helsinki Accords in the former Soviet bloc in arming human-rights proponents with ideas and legitimacy.

It shifts the debating advantage. Those who propose to alter its Bill of Rights for the permanent constitution will have to explain why they oppose individual freedoms, minority rights, or women's equality. Conversely, human-rights advocates will not be put in the untenable position of having to argue against a document that established the supremacy of Islamic law.

Its mere existence challenges the region, particularly the people of Iran who long for such a constitution.

It is a signal event for U.S. foreign policy. It is the first time that the U.S. confronted the question of sharia and affirmed the overriding importance of individual freedom, particularly religious freedom in the Muslim world. It missed this opportunity in Afghanistan, allowing the explicit incorporation of Islamic Hanafi jurisprudence in that founding document.

It is crucial to raise the profile of this interim constitution and explain the significance of its provisions at every opportunity. To ignore it or be ambivalent about it risks feeding the perception that it can be easily dismissed — that it is only a piece of paper. Coalition Administrator Paul Bremer and the Iraqi Governing Council have produced a historic achievement giving a strong foundation for human rights, freedom, and democracy in Iraq.

— Nina Shea is the director of Freedom House's Center for Religious Freedom and serves as a commissioner on the U.S. Commission on International Religious Freedom.

*   *   *

YOU’RE NOT A SUBSCRIBER TO NATIONAL REVIEW? Sign up right now! It’s easy: Subscribe to National Review here, or to the digital version of the magazine here. You can even order a subscription as a gift: print or digital!