"Justice without force is impotent, force without justice is tyranny. Unable to make what is just strong, we have made what is strong just." ~ Blaise Pascal
Washington on the Tigris
World War I, at the time known as 'the war to end all wars,' was one of the most horrific events in world history. America 's entry into the war was driven by Woodrow Wilson's progressive idealism, whereby an Allied victory would 'make the world safe for democracy.' After the war, the failure of the League of Nations and other subsequent events combined to take the shine off the great victory for democracy.
In 1928, however, the nations of the world ratified the Kellogg-Briand Pact, which renounced war as an instrument of national policy. Thus, as bad as the war had been, the glorious flowering of peace and freedom which would result from the pact, itself a latter-day outgrowth of the conflict, would surely make it all seem worthwhile.
Eleven years, almost to the day, after the signing of the Kellogg-Briand Pact, Hitler invaded Poland ; and yet another document supposedly guaranteeing peace and freedom proved to be worth less than the paper on which it was printed.
In like fashion, these days it is the U.S. war on Iraq which is being portrayed as the new flowering of democracy. Regardless of how bad the war was'and its greatest partisans refuse to admit that there were any negatives to it at all'the result is now that Iraq has been liberated from an evil dictator. The latest evidence of the advancement of Iraqi freedom is the interim Iraqi constitution, ratified on March 8, and the subject of much crowing among the war cheerleaders of the official Right. (One local conservative talk-show host referred to it as 'history with the accelerator pushed all the way to the floor' and applauded the Iraqis for being able to come up with a constitution while still fighting off terrorists and dead-enders.) This constitution, we are told, created entirely by nonpartisan Iraqis, guarantees that Iraq will have a democratic government with all of the freedoms we Americans (used to) enjoy.
The first point to make here is that a constitution is nothing more than a piece of paper with some ink on it. It doesn't guarantee anything. It is up to the citizens of the country to force their government to abide by it. Let us not forget that the Soviet Union had a constitution which guaranteed such things as equal rights for all citizens, freedom of religion, freedom of speech, and so on'and a fat lot of good that did the poor comrades outside of the Kremlin. For that matter, the U.S. has a constitution which supposedly limits the federal government to a few specific functions and guarantees similar freedoms to us, and that document has been utterly ignored by the feds since 1861.
Nevertheless, for the sake of argument, let's assume that the Iraqi constitution will actually be followed by the interim government. What, then, can be said about it?
For one thing, it is fairly clear that most of this document was drawn up in Washington , D.C. , not in Baghdad . The language involved and the concerns addressed (Article 1, Section B, states: 'Gender-specific language shall apply equally to male and female') are certainly those of the Western political classes, not those of ordinary Iraqis. This should not be surprising. After all, what government would take over another country only to let it go its own way? Furthermore, since this document is as much for Western media consumption as it is for actual governance, it is only natural that it be written to address the concerns of the opinion-makers in New York , Washington , London , Paris , Berlin , and other prominent cities.
Much of the constitution is modeled on the U.S. Constitution, with familiar protections for 'free expression,' 'peaceable assembly,' 'freedom of . . . religious belief,' and even the 'penumbra' of the 'right to privacy.' (Does this mean Iraqis get abortion-on-demand, too?) There is a prohibition of ex post facto laws. There is a stipulation that a warrant must be obtained before searching someone's house. There are even guarantees of the rights to be notified of the charges under which one is being held, to remain silent, and to have a 'fair, speedy, and open trial.' On the face of it, then, it would appear that a Jeffersonian republic is indeed being planted in the fertile soil of Mesopotamia .
However, a closer examination of some of the provisions of the constitution makes it clear that this is more a document for a modern total state, on the model of Europe or the present-day U.S. , than it is a constitution of a truly free country. No doubt this will come as a surprise to those conservatives who believed their professed allies in the Bush administration were bringing a new birth of freedom to Iraq .
The high-flying rhetoric of the preamble gets things off to a roaring start and is itself good for a few laughs. It begins:
The people of Iraq, striving to reclaim their freedom, which was usurped by the previous tyrannical regime, rejecting violence and coercion in all their forms, and particularly when used as instruments of governance, have determined that they shall hereafter remain a free people governed under the rule of law.
Conveniently, this paragraph neglects to mention that the foreign government imposing this constitution on the people of Iraq wholeheartedly supported 'the previous tyrannical regime' for years and is employing 'violence and coercion' in several forms to install this government in Iraq.
The preamble is three wordy paragraphs long. Compare that to the simplicity of the preamble to the U.S. Constitution; then compare it to the even more wordy preamble to the 1977 Soviet constitution, which begins:
The Great October Socialist Revolution, made by the workers and peasants of Russia under the leadership of the Communist Party headed by Lenin, overthrew capitalist and landowner rule, broke the fetters of oppression, established the dictatorship of the proletariat, and created the Soviet state, a new type of state, the basic instrument for defending the gains of the revolution . . . .
Now which constitution does the new Iraqi constitution more resemble in its preamble?
The Iraqi constitution, as we are told, is only an interim document, to be employed until a new government can be elected. Fortunately for the Iraqis' colonial masters, it contains this text in Article 2:
The first phase shall begin with the formation of a fully sovereign Iraqi Interim Government that takes power on 30 June 2004 . This government shall be constituted in accordance with a process of extensive deliberations and consultations with cross-sections of the Iraqi people conducted by the Governing Council and the Coalition Provisional Authority and possibly in consultation with the United Nations. This government shall exercise authority in accordance with this Law . . . .
In other words, until the first elections occur (and they can take place as late as January 30, 2005) all the laws, including those governing how future elections will be conducted and how voting districts will be drawn, will be made by a government chosen by the U.S. and its handpicked Governing Council. This gives the U.S. plenty of time to set things up so that the outcomes of elections are in its favor and that the 'wrong' people don't get elected. There's liberation for you!
Article 7 states that 'Islam is the official religion of the State and is to be considered a source of legislation.' Well, at least we can say the Iraqis have been liberated from secular government! 'No law,' it continues, '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.'
First of all, what exactly are the 'principles of democracy'? Second, what happens when Islam, the 'principles of democracy,' and 'this Law' come into conflict? Who wins? Third, after the 'transitional period,' is it then permitted to make laws that contradict the constitution? That will surely make it easier for the new government to overlook any restrictions placed upon it by this document, not to mention making it easier for an Islamic government to be imposed, since the blather that follows about 'freedom of religious belief and practice' is then no longer in force, either. The whole paragraph is vague and thus satisfies neither those who want an Islamic state nor those who want a wholly secular one; but it does enhance the power of the new government at the expense of the people. Yes, this part definitely came from Washington .
The earlier enumerated freedoms often come with caveats and loopholes.
The prohibition of ex post facto laws, for example, nevertheless permits a law to be retroactive if 'the law so stipulates.' Well, then, why bother prohibiting them in the first place?
Article 15, Section B, requires the government to obtain a search warrant to 'violate the sanctity of private residences.' Later in the same paragraph, however, it adds that '[e]xtreme exigent circumstances . . . may justify a warrantless search'; and while the evidence seized in a warrantless search under circumstances that are not extremely exigent 'shall be inadmissible in connection with a criminal charge,' it may still be admissible if 'the court determines that the person who carried out the warrantless search believed reasonably and in good faith that the search was in accordance with the law.' Whew! If I were an Iraqi, I'd feel secure now!
Similarly, actions brought against government officials for violating the constitution and laws pursuant to it are permitted under Article 22, but if 'the court decides that the official had acted with a sufficient degree of good faith and in the belief that his actions were consistent with the law, then he is not required to pay compensation.' Makes you feel all warm and fuzzy, huh?
On the other hand, there are many provisions of this constitution that are downright socialist in nature, and some that could be construed to be socialist as well.
Article 14 bluntly declares: 'The individual has the right to security, education, health care, and social security.' Aside from the issue of security, every one of those is an out-and-out socialist 'right.' None of these rights, of course, can be found in the U.S. Constitution. Sure enough, though, they turn up in Articles 42, 43, and 45 of the Soviet constitution, which read, respectively: 'Citizens . . . have the right to health protection'; 'Citizens . . . have the right to maintenance in old age, in sickness, and in the event of complete or partial disability or loss of the breadwinner'; and 'Citizens . . . have the right to education.'
Article 14 also stipulates that the ' Iraqi State . . . shall strive to provide prosperity and employment opportunities to the people,' which sounds nothing like any part of the U.S. Constitution but conspicuously similar to Article 16, Section 2, of the Soviet constitution: 'The economy is managed on the basis of state plans for economic and social development . . . .' It also resembles Article 23, Section 1: 'The state pursues a steady policy of raising people's pay levels and real incomes through increase in productivity.'
Here's something else you won't find in our Constitution'and, in fact, would be shocked to find in the constitution of any free country: 'Public property is sacrosanct, and its protection is the duty of every citizen' (Article 16, Section A). Guess where a similar provision can be found. Yep, you guessed it: 'Citizens of the USSR are obliged to preserve and protect socialist property. It is the duty of a citizen of the USSR . . . .' (Article 61, Section 1).
The Second Amendment to the U.S. Constitution famously declares that 'the right of the people to keep and bear Arms, shall not be infringed.' One would expect something similar to be found in a constitution drawn up under the direction of a supposedly conservative administration; but one would be disappointed. The Iraqi constitution, in Article 17, states precisely the opposite: 'It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in accordance with the law.' Thus, the Iraqi government is free to disarm the entire citizenry. If it makes you Bush-lovers feel any better, though, please note that there is no article of the Soviet constitution that allows for any private ownership of arms; it was simply assumed to be illegal in the U.S.S.R.
Article 25, Section C, allows for the the 'establishing and administering [of] a central bank' by the Iraqi government, the better to print fiat money and be able to spend and inflate endlessly, just like our own dear government does.
Section D gives the government power to formulate 'a general policy on wages,' which compares nicely to Article 40, Section 1, of the Soviet constitution: 'Citizens have the right to . . . pay in accordance with the quantity and quality of their work, and not below the state-established minimum.'
Section E says the government has 'exclusive competence' in '[m]anaging the natural resources of Iraq [read: oil], which belongs [sic] to all the people of all the regions and governorates of Iraq .' Coincidentally, Article 11, Section 2, of the Soviet constitution agrees: 'The land, its minerals, waters, and forests are the exclusive property of the state.'
Oh, yes! Section G lets the government regulate 'telecommunications policy,' the better to stifle the earlier-promised freedom of speech and permit favored companies to make some moolah off the 'liberated' Iraqis. This will, of course, be nothing new to the Iraqis. Besides Saddam, the CPA has been pretty good at this sort of thing, banning Al Jazeera and other news organizations and giving cell phone contracts to well-connected corporations while preventing independent entrepreneurs from providing the same service.
As to provisions that could be construed as favoring intrusive government, two in particular come to mind:
Article 12 states that '[d]iscrimination against an Iraqi citizen on the basis of gender, nationality, religion, or origin is prohibited.' It could be that this is merely referring to government discrimination since it follows a passage declaring that all Iraqis 'are equal before the law,' but it could just as easily be construed to mean that private discrimination is prohibited as well, which opens up an avenue for affirmative action in Iraq. Article 30, Section C, which requires the 'electoral law [to] aim to achieve the goal of having women constitute no less than one-quarter of the members of the National Assembly and of having fair representation for all communities in Iraq ,' is quite explicit in its quotas.
Thus, were the Iraqi transitional constitution actually to be followed to the letter, the best the Iraqis could hope for is a modern welfare state with more or less unlimited government power'in other words, Washington on the Tigris. The worst is that this constitution, like the Soviet and American constitutions, will be completely ignored and an Islamic state under sharia law will sprout up in Iraq, putting Saddam Hussein to shame with its brutality and intolerance. Whichever should occur, is this what most Americans'and especially those on the Right'who supported the 'liberation' of Iraq hoped to achieve? For the sake of both Americans and Iraqis, I certainly hope not.