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Commentary: An Iraqi constitution

By JOHN ARMOR   |   April 27, 2003 at 5:39 PM   |   Comments

HIGHLANDS, N.C., April 27 (UPI) -- What are the essentials for the Iraqis to write a new constitution -- one that has a chance of taking root in that beleaguered nation?

First, we look at geopolitical realities. Some critics of nation building in Iraq claim that it is "an artificial nation" with borders that were drawn "arbitrarily by colonial powers." Therefore, they conclude that it is unlikely to survive as a single nation. The critics ignore the fact that every nation in the world except Australia, New Zealand and Japan has at least one artificial international border, drawn as a result of military or political machinations.

Only those three, of the 193 nations in the world, have borders that are entirely natural -- the oceans and seas that surround them. For example, the United States conducted one war against Mexico and threatened another against Canada, before its respective southern and northern borders were fixed as they exist today. (As Casey Stengel used to say, "You could look it up").

There are sound reasons for maintaining Iraq with its present borders, regardless of how arbitrary they may have been initially. Turkey seeks to encroach on northern Iraq, Syria on central Iraq, and Iran on southern Iraq and the Shiite areas of Baghdad. Only guaranteed borders for Iraq can shut down those respective foreign ambitions.

Accept the idea that Iraq should continue to exist. What form of government must it have, and how can that be guaranteed by its new constitution?

The religious and ethnic diversity and hostility among the people of Iraq is evident for all to see. What examples are there to show how these can be peacefully accommodated?

For an end to the religious battles and murders that have marked the history of Iraq, one conclusion is obvious. The new Iraq cannot be a theocracy, giving primacy to any religion, specifically to the Shiites comprising about 60 percent of its population, who until the American-led liberation were brutally repressed by the Sunnis under Saddam Hussein. How can any nation, through its constitution, prevent the majority religion(s) from dominating the minority ones?

Three examples are available. The first is the United States, which forbids any official religion and guarantees the freedom of worship of all religions. The example at the opposite end of the scale is India. Its constitution recognizes 16 official languages, seven official religions (plus hundreds of official sects), and specifies in detail the powers of all its constituent states. That is why its constitution is the longest in the world, running to thousands of pages. Though India is a secular state, it guarantees the religious freedom of its citizens by explicit guarantees extended to each. Either the U.S. or Indian method would work for Iraq.

The third good example is Switzerland. It is divided into cantons, each of which is dominated by one of its linguistic, ethnic and religious components -- those are the Germans, French, Italians and Romanch. The Swiss government is a "loose federation" in which all its cantons ("states" in the United States, or "provinces" in other nations) have a very high degree of autonomy, with only minimal functions reserved to the national government.

All three of these nations are constitutional republics. Though all are generally referred to as democracies, the constitutions of all three forbid a simple majority from changing the accommodations made for their religious or other minorities. All three constitutions forbid amendment except through various types of supra-majority decisions.

Exactly the same MUST be done in the new Iraqi constitution. For legitimacy, it must be approved by the people of Iraq. But it MUST NOT be a pure democracy.

Few nations in the world have ever attempted to establish themselves as a pure democracy. And all that have tried have failed. Athens is cited as the first democracy. But it had a limited franchise. Only native citizens who were male and not slaves were allowed to vote. They amounted to about 10 percent of the population. And even that small group still was sufficient to permit the demagoguery that led to its destruction.

From 447 to 404 B.C., Athens had its "Golden Age" under Pericles. It had democracy, peace, and prosperity. But when, by democratic vote, the Athenians banished Gen. Alcibiades, it sealed its own doom. He left Athens, briefly joined the Spartans, and that contributed to the defeat of Athens in the Second Peloponnesian War.

Aristotle's treatise, "On Politics," defined democracy as one of the corrupt forms of government. His conclusion was that any pure democracy would eventually vote itself into failure. He was right about Athens; he has been right since then, with the most recent example being France.

After its revolution, France established a pure democracy. Its government quickly degenerated into a tyranny, with each new set of elected leaders feeding their predecessors to the guillotine. Applying this lesson to Iraq leads to the conclusion that Iraq should not be established as a pure democracy, but as a constitutional republic. Leaders might be elected democratically, but their powers must be circumscribed by the constitution. And the constitution itself must be protected by a supra-majority requirement for ratification of any amendment.

Again, the lessons of history are clear. As Madison, Hamilton and Jay wrote in the Federalist, the U.S. Constitution should not be amendable "by the mere whim of a majority." The same applies to any constitution in any country, including Iraq. Only a constitution that offers protection to minorities of any type -- religious, ethnic, linguistic, etc. -- is worthy of the name "constitution." And only a supra-majority requirement can prevent any constitution from self-destruction at the hands of a temporary majority.

How long will it take for Iraq to develop and put in place a democratic government under a constitution that limits the powers of its government? Again, history provides solid answers. It took two years for Japan to put in place its new government under its new constitution after World War II. That process was, of course, strongly guided by Gen. Douglas MacArthur. It took India two years to put in place its own constitution, with its elaborate protections for religions, languages, and its constituent states.

It took the United States less than a year to write its first constitution. But that constitution, called the Articles of Confederation, failed utterly within 11 years for political and economic reasons. That failure led five states to call the Constitutional Convention in Philadelphia in 1787. In turn, that convention drafted the Constitution, which, as amended, has remained in place longer than any other constitution ever written for any other nation in history.

The United States provided in those events another critical example for those who will write the new Iraqi constitution. They should pay attention to the failure of the first American constitution.

There is no room for constitutional failure in Iraq. Its first effort must be successful. It does not have the luxury of a second chance or more, as the United States and most other nations have had. If the first Iraqi constitution fails, Turkey's influence will reach in from the north, Syria's from the west, and Iran's from the east. Iraq will then have a tripartite dictatorship to replace the single one from Saddam. The historical example here is Lebanon.

Originally, Lebanon was accurately described as the "Switzerland of the Middle East." Its divergent ethnic and religious groups existed peacefully side by side. Despite its lack of oil, it was one of the most prosperous nations in that region. When it degenerated into guerilla warfare between those factions, Syria moved into the power vacuum that resulted. Syria still dominates Lebanon, and its troops occupy the Bekaa Valley, the center of agriculture -- and terrorism -- in Lebanon.

Notice I am not suggesting that Iraq would benefit from adoption of the U.S. Constitution as is, suitably translated. That would most assuredly fail. I suggest that the Iraqis spend substantial time with the histories of constitution writing, across many societies and across the centuries. It is a record mostly of failure, but from that the Iraqis can learn what not to do.

They should take their time. Two years is not an unreasonable time for such an effort. Furthermore, the re-establishment of Iraqi government for Iraqis should not be done from the top down. A democratic republic is best established from the bottom up. The Kurdish areas in the north already have a functioning elected government. Basra should be next, since it has a relatively homogenous population. Mosul and then Baghdad should follow, because the principles of multi-ethnic and multi-religious government must and can be worked out there.

Should the United Nations be involved in the process of Iraqi constitution writing? Absolutely not. A majority of the nations of the United Nations have no use for religious or political freedom, or honest and fair courts of justice, or respect for basic human rights. Furthermore, some of its nations which are themselves highly civilized, have economic or political reasons for interfering in Iraq -- such as Germany and France.

Regardless of what the process is labeled, the umbrella of American and coalition power should be the guarantee of Iraqi borders and Iraqi freedom of movement, of religion, of the press, etc., until the new Iraqi constitution is completed and a new national government is established and, most importantly, functioning. All criticisms opposing that policy should be summarily rejected.

Looking at history, the odds are against Iraq succeeding in establishing a constitutional republic on the first effort, and having it survive. The best chance they have depends on the coalition maintaining the stability of Iraq until that moment. Coalition involvement in the peace is equally as important as its involvement in the war. The proper and circumscribed use of American power for a few years is essential to the long-term success of Iraq.

And lastly, as for those who accuse the United States of imperialism, those charges should be rejected summarily. As in Japan and Germany after World War II, after the war is won, and after the peace is won, the United States will not only withdraw but provide such aid as is needed. Imperial powers do not voluntarily withdraw. Throughout history, no empire has ever shrunk by choice. Once the United States withdraws from Iraq, it will prove, once again, that it is not an imperial power interested in empire.

The current "empire" of the United States consists of Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands and American Samoa. The largest of these, Puerto Rico, has repeatedly decided by referendum to remain a territory, rejecting both independence and a petition to become a state. Some "empire." Those who accuse the United States of creating an empire are geopolitically ignorant. So they must learn the truth again, from the Iraqi history now playing out.

The first great task that America committed itself to in Iraq was the elimination of the brutal dictatorship of Saddam. Many lesser tasks remain, from restoring power and water to finding illegal weapons and patrolling the streets. Just one critical task remains -- helping the Iraqis arrive at a constitution that can establish an honest and effective government for all the Iraqi people -- one that can endure. Just as we rewrote the history of warfare in freeing Iraq, we must help the Iraqis rewrite the history of constitution drafting in creating their own constitution.

--

(About the author: John Armor practices law in the U.S. Supreme Court and is a scholar of comparative constitutions. One of his seven books and two dozen of his articles are on constitutions).

© 2003 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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