[staph]

OK, I confess. I'm a law geek.

I've been sitting up reading the BBC's translation of the proposed new Iraqi constitution, and I've got to say that for a country which has been pilloried as a hotbed of Islamic extremism it's a very reasonable and left-wing document indeed.

Particularly impressive are:
� constitutional guarantees of equal opportunity/treatment been genders/races/religions etc;
� incorporation of large parts of the UNCCPR and UNCESCR;
� adoption of a federal structure;
� guarantees of a progressive tax system!
� guarantees of the right to work and the right to organise!
� guarantees of the welfare state
� guarantees of public health for all
� environmental protection
� freedom of the press and of assembly

And I'm only half-way through.

Of course, it might not get passed, but it would be a pity.

You can find the full text here

[Franz Josef]

Thanks - hadn't read this. I hope the country becomes stable enough for a good constitution to be relevant: with the current level of carnage it looks like it will take a while.

The other - more insiduous - issue is that even after stability finally comes (assuming it does) a good judiciary will be needed to interpret the constitution and protect the rights of Iraqi citizens. Before East Germany (=German Democratic Republic) merged with (taken over by?) West Germany, it had a great constitution which in practice protected no-one from oppression by the state because the courts would simply not uphold its provisions.

I'm also struck that countries such as Thailand and South Korea which have been stable (ish) democracies (ish) for a while would often be held by commentators to have weak and / or corrupt judiciaries so even after Iraq is up and running properly, it may be a long time before Iraqis can benefit from their rights.

Having said that, better than living in daily dread of their ex-leader and his informants.

[turtle]

Originally Posted by Franz Josef Having said that, better than living in daily dread of their ex-leader and his informants.

Isn't that the truth! I was once told that when America banned slavery that most of the slaves were still slaves. Not due to the war, but ignorance. They couldn't read and did get the paper in the morning. Those who owned slaves knew that you wanted the keep them ignorant to prevent them from learning "too much" and knowing there is a better life for them out there. When you wake up the next day eating the same slop, having slept in the same bed and working in the same field, you're still a slave. Well I pray the people of Iraq will learn what they will have their hands on and stand up for it. All it would take for everything to go back the way it was would be for good men to do nothing.

[Swing]

Like most everyone, I hope Iraq stabilizes and prospers.

However, I am not hopeful. Article 2 of the Constitution is the problem, or one of the problems. Creation of a state under which religion is fundamental to the law of the state has not been successful. A goal of Islamic states has been to create life as it existed under Mohammed thousands of years ago (hence the Taliban's laws of no education for women and no images of human form). Pakistan was segregated from British India, in part to form a fundamental Muslim state. Afghanistan and the Taliban were a complete disaster, not only to its people but to its wealth of archaeological treasure (and to the United States too). And Iran is a closed society with a poor record of minority and other rights. None have equal rights for women, all suffer from general lack of education, all have economic and other problems largely a result of their effort to recreate what they perceive to be the religious past.

With the US influence in Iraq I doubt the Iraqis will become extremely fundamentally Islamic, at least in the very immediate term, but Article 2 leaves the door open and, at minimum, negates the realistic possibility for other religions to peacefully coexist. At this point, the US is accepting much less in terms of a truly secular democratic state than it intended at the beginning of the war.

In 1981 V.S. Naipaul wrote Among the Believers, a book about the societal problems in Iran and Pakistan (and also Malaysia and Indonesia) caused by these attempts to recreate a supposed past. In 1995 he wrote Beyond Belief, a book explaining his experience in going back to the same countries and viewing the intervening changes, which were not for the better. These are not law books but do illustrate what has happened in countries trying to live under sacral law in a secular world.

Even if the Sunnis sign on and the violence decreases, which it looks like they will not and it will not, life in countries dominated by Islamic law is a failed experiment several times over.

[Amadeus]

I wish the citizens of Iraq all the best. What they are trying to do is a very tough job. Something worth while is never easy.

[staph]

Swing, I think you're misreading that Article.

The text is as follows:

Article (2): 1st - Islam is the official religion of the state and is a basic source of legislation: (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. 2nd - This constitution guarantees the Islamic identity of the majority of the Iraqi people and the full religious rights for all individuals and the freedom of creed and religious practices. Article (3): Iraq is a multiethnic, multi-religious and multi-sect country. It is part of the Islamic world and its Arab people are part of the Arab nation.

I take it that you're concerned by 2(1) and 2(1)(a). It seems pretty clear to me that so were the drafters of the constitution � and hence the prominence of 2(1)(b) and (c), the inclusion of "full religious rights for all individuals in 2(2), and the existence of Article 3 � you can't get more explicit than "Iraq is a multiethnic, multi-religious and multi-sect country". The inclusion of "undisputed" in 2(1)(a) is interesting as well� and indicates that they want to exclude extremists, and only work on the common ground between Shiite and Sunni creeds.

In the form stated, the establishment of Islam in the constitution seems to be no more and no less invidious than the establishment of the CofE in the UK (probably less so, in fact). They've gone out of their way to make it clear that fundamental rights (guaranteed in the constitution) won't be trespassed on, and that religious toleration is the order of the day.

[Swing]

staph, I had read the whole constitution. The proposed Iraqi constitution does create a sacral state and that has proven unworkable. As to the result of this latest attempt in Iraq I hope you are right and I am wrong.

[staph]

Originally Posted by Swing staph, I had read the whole constitution. The proposed Iraqi constitution does create a sacral state and that has proven unworkable. As to the result of this latest attempt in Iraq I hope you are right and I am wrong.

Well, it's obviously not a secular constitution in many respects. I just don't think that would make an Iraq governed by this constitution a sacral state � the whole thing is I think fairly carefully framed to encourage toleration and diversity, because there'd be civil war if it didn't. What's more, the guarantees of rights and equality seriously clip the wings of potential hardline religious interpretations of the document.

We'll see. I personally rather doubt that it will be accepted at the referendum.

[Franz Josef]

Originally Posted by staph They've gone out of their way to make it clear that fundamental rights (guaranteed in the constitution) won't be trespassed on, and that religious toleration is the order of the day.

I hope you're right but I couldn't claim to be quite so optimistic. Constitutional debate is enormously difficult even in stable established jurisdictions. Iraq has practically no experience of the rule of law or democracy in its entire history and large swathes of the region would take the rule by popular majority to be incompatible with Islam. Iran would be a case in point - popular votes are held but power in fact resides with a small group of clerics who control both admission to the voting list and which laws can be passed.

To my mind, Article 2 reads like a compromise of essentially incompatible views which has been somewhat cobbled together. I suspect there are going to be a lot of growing pains before everyone accepts pluralism of opinion without calling it apostasy.

One of the real difficulties with the Middle East is that despite the no doubt widespread and sincerely held beliefs of the population of the region, there do not seem to be any stable functioning democracies who enjoy what I would call the rule of law and civil society (the sole reasonable exception to this seems to be Israel) which means Iraq has a mountain to climb to achieve what no-one else in the region has.

[staph]

Originally Posted by Franz Josef To my mind, Article 2 reads like a compromise of essentially incompatible views which has been somewhat cobbled together. I suspect there are going to be a lot of growing pains before everyone accepts pluralism of opinion without calling it apostasy.

I think what I find positive about it is that it would have to be a severely compromised judiciary which could approve intolerant laws in the face of the text of the constitution, and that the compromise, however ugly, really defangs the claims of hardcore Islamists to have a purely Muslim state.

That's not to say that there won't be serious conflict about it � a nation where there are religious fringe groups and guerrillas conducting terrorist campaigns is obviously a pretty polarised one. I wouldn't discount the possibility of a severely compromised judiciary either, come to think of it.

One of the real difficulties with the Middle East is that despite the no doubt widespread and sincerely held beliefs of the population of the region, there do not seem to be any stable functioning democracies who enjoy what I would call the rule of law and civil society (the sole reasonable exception to this seems to be Israel) which means Iraq has a mountain to climb to achieve what no-one else in the region has.

Turkey's pretty stable. It doesn't have a big Sunni/Shi'a divide though, afaik. And I thought Lebanon was reasonably stable these days, or as stable as it can be with Syrian troops inside the borders and the Syrian intelligence forces blowing politicians up.

[Swing]

There seem some parallels between the Islamic nation building examples of the past 60 years and the European middle ages when the Roman Catholic Church and the various monarchical powers were enaged in battles of governance and whether civil or ecclesiastical authorities had the right to rule. In the 12th Century in England there is the example of King Henry II's disputes with Thomas � Becket and the Church of England and Rome. Up through the 15th and 16th centuries in France papal threats of excommunication (which also seriously concerned England's Henry II in the 12th century during the battles with Becket, and especially after Becket's death) were enough to alter the actions of kings (some of whom claimed divinity).

By the time of the American and French Revolutions it seemed clear secular democratic government was the just approach and leading thinkers such as Montesquieu, Rousseau, and Locke had a profound influence on the written constitutions adopted at the time; while England had already had an earlier revolution, less bloody than the French, and which assured continuity of the common law and further refinement of the predominantly secular unwritten English constitution.

Religion is never very far from the political scene. Napoleon (even after the bloody French revolution) found it expedient to induce the pope to travel to Paris and appear at Napoleon's coronation so as to lend legitiMacy from the Church, i.e. God. Napoleon, it is worth noting, was a dictator. And though religion is never very far away from politics even today in Western democracies (indeed it cannot be given that it is a major sociological force) history in both the West and the East seems to teach it is best kept out of the government.

The Imams in Iraq have not learned the lessons of the middle ages or of the recent experiences in Afghanistan, Pakistan, Iran etc. They seek power to impose their view of Islam through a sacral government, and I think that bodes ill for equal rights and just government in Iraq in general. Article 2 of the proposed constitution may merely invite religious war with the winning Imam claiming to be the true and exclusive source of legislation.

I am less familiar with the Turkish Constitution but I believe it expressly defines the state as secular, that legislation is to come only from the National Assembly elected by universal suffrage, and does not expressly give prominence to any religion (or even mention one). Here is an url which may prove me wrong on some of that: http://www.oefre.unibe.ch/law/icl/tu00000_.html#C001_

[Franz Josef]

Originally Posted by staph Turkey's pretty stable. It doesn't have a big Sunni/Shi'a divide though, afaik. And I thought Lebanon was reasonably stable these days, or as stable as it can be with Syrian troops inside the borders and the Syrian intelligence forces blowing politicians up.

Turkey's an interesting case in point - a Muslim country, bridging Europe and the Middle East, and an avowedly secular state to the extent that the military feel the need to act as overt (threatening?) guardians of Ataturk's legacy. Perhaps it's a stable country only because it's secular rather than overtly Islamic?

Here's a copy of the Turkish constitution via the Economist's website. It makes an interesting comparison to the Iraqi constitution and I must say, it uses language I prefer to hear - http://www.tbmm.gov.tr/english/constitution.htm

Edit: Just on your point Swing, yes, a constitutionally secular state.