Thursday, July 07, 2005

Leaks from the Iraqi constitutional drafting process

Kim Lane Scheppele

Iraq is supposed to have a constitutional draft ready by 15 August, a bit over a month from now. Subcommittees have been meeting to draft different parts of the document, which will be eventually pulled together into a larger whole.

But perhaps it says something very good about the process that those who are proud of their handiwork so far are leaking their drafts to the press (perhaps to leverage public opinion in their favor?) and the Iraqi press is starting to publish these leaks. Even though the English-language press isn’t covering the constitutional drafting process, the Iraqi press is.

Now Nathan Brown (author of the path-breaking Constitutions in a Non-Constitutional World: Arab Basic Laws and the Prospects for Accountable Government) has provided a translation of the biggest leak so far – the draft bill of rights for the Iraqi constitution. He has also provided a wonderful commentary on the text.

The highlights? Strongly stated protections for speech, religious liberty, equality under the law, science. Relatively robust protections for women, though more in their capacities as mothers than anything else. A strong prohibition on torture, including an absolute ban on using confessions acquired by torture in court. Many social rights. Very little mention of Shari’a. All in all, this is a very interesting document and shows that the Iraqis are not just copying other countries’ constitutions – but also that they are not just copying international human rights agreements either.


This development is indeed interesting, but more intriguing is whether or not the eventual Iraqi Constitution will evolve into something engendering what Jürgen Habermas termed "constitutional patriotism". Judge Oakes in his Madison Lecture on our Bill of Rights said that it is "a document that embodies as close as we may come to a national religion."

It seems to me that the real challenge lies not in the specific words of a constitution and its bill of rights, but in whether or not a society is structured such that the words in the constitution become something affirmatively aspirational.

Otherwise, many nations have constitutions with very nice but mostly meaningless words, which are honored mostly in the breach. For example, Iraq's 1990 Constitution provided in Article 22(a) that "[t]he dignity of man is safeguarded. It is inadmissible to cause any physical or psychological harm."

The words of a constitution, then, seem to have such meaning as is given to them in their particular (dis)use across diverse contextual situations.

I'm left to speculate whether the drafting of the Iraqi Constitution under the American Transitional Administrative Law will tend to delegitimize it as a (neo-)colonialist/imperialist thing, especially given continuing occupation by American forces, which has no end in sight.

Of course, given the recent optimism expressed by President Bush in his most recent address to the American people, I'm absolutely confident that events are going quite well in Iraq, maybe enough to excuse my skepticism, above. Maybe not.

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