Politics & Policy

Constitutional Crossroads

Rights and wrongs.

Iraq stands at a crossroads. Its leadership can create a just, free, and prosperous society on a constitutional foundation of individual rights and limited government, or it can pave the way back to dictatorship by exacerbating group tensions and recreating the fascist economic system over which the Baath party ruled for decades.

The moment of truth is drawing near. Iraq’s drafting committee will soon report out a proposed constitution with a bill of rights. The national assembly will debate the new constitution (scheduled to end today) and then pass it on to the people for approval.

Many dictatorships have promulgated “bills of rights,” but they have been hollow and useless. Mere declarations of rights are less important to the protection of liberty than separation of powers and checks and balances among powers. Nonetheless, when combined with institutional means to enforce them (such as independent judiciary), statements of rights help entrench the rights of individuals, especially for members of minority groups.

The most recent draft of Iraq’s bill of rights is particularly strong in a few areas. Torture is prohibited and government officials can be held responsible for violations of constitutional rights against torture, arbitrary imprisonment, or abuse. “Iraqis,” the draft states, “are all equal before the law without regard to gender, opinion, belief, nationality, religion, sect, or origin” and citizens are guaranteed “complete and unconditional right to ownership in all parts of Iraq without limitation.”

Earlier drafts of the bill of rights that subordinated individual rights to “virtue” and mandated a special role for women in family life have been amended. The earlier draft said, “The state shall take responsibility for combating moral and behavioral depravity and encourage people and agencies to spread virtue, providing it help and support.” The exercise of coercive state power in this regard would have likely been counterproductive and destabilizing. Although still far from ideal, the current draft has softened this provision: The government will simply work to “preserve [the family’s] authentic Iraqi nature.”

Also, references to “social justice” have thankfully been eliminated. Prior drafts stated that “Social justice is the basis of building the [Iraqi] society” and that the “basis of the national economy is social justice.” The drafting committee seems to have realized that “social justice” can become a replacement for real justice. Real justice means rendering to every person his due. A rhetoric of social justice sets the stage for conflict among groups over privileges. That was Iraq’s unhappy history under the Baath party.

That’s progress, but there is much in the draft that would hinder the move towards a free society.

Finally, earlier drafts conflated a constitution and a legal code, and frequently subjected constitutional rights to legislative discretion through phrases such as “except by law” and “exercised in accordance with law.” That was even true of the treatment of slavery, which was prohibited, “except where allowed by law.” The new draft is legally much more clear: “Corvee [forced labor], slavery and the slave trade, and compulsory work are forbidden.”

This problem must be cleared up. A constitution enumerates and distributes powers and protects rights; legal codes organize legislation. An independent judiciary can determine whether a legislative measure or the action of a government body or official has violated those rights; stating in the constitution that the rights are only valid in so far as legislation does not abrogate them is to risk turning the bill of rights into a dead letter before it is even ratified.

Further, this draft bill of rights is in parts at war with itself. On the one hand, individual rights are asserted, including the right to ownership of property. Such ownership is capable of clear and complete definition and enforcement. On the other hand, it claims that “Iraqi citizens have the right to enjoy security, education in all its stages, health care, and social insurance.”

This raises crucial questions. What exactly is “security”? Does “security” trump individual rights?

Vague promises of “security” could perpetuate the worst aspects of the Baathist regime. Expansive promises are dangerous in a multi-ethnic, multi-religious society such as Iraq. A government that has billions of dollars to dispense in benefits will have to make decisions that will impact groups differently. An effusive promise of security is a recipe for conflict.

The rich array of cultures in Iraq, with crisscrossing patterns of ethnicity and religion (notably Muslim and Christian, Arab, Kurd, and Turkmen) can be either a source of wealth and cultural enrichment or a source of violent conflict and cultural degradation. It depends on whether a constitutional order generates social harmony through justice and freedom, or social conflict through predation and tyranny.

Can Iraq rise to this constitutional occasion?

Williamson M. Evers is a political scientist at Stanford University’s Hoover Institution and served in Iraq in 2003 as a senior adviser to Ambassador L. Paul Bremer. Tom G. Palmer, a senior fellow at the Cato Institute, has been involved with educational reform in Iraq and addressed members of the Iraqi parliament in April on the constitutional process.

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