The Lichfield Group

This article appeared in the September 7, 2005 issue of the Washington Times.

The draft Iraqi constitution is not worth the last full measure of devotion President George W. Bush is demanding of the brave men and women serving in Iraq. The proposed charter for a post-Saddam Iraq is a joke. It betrays a political amateurism and immaturity destined to shipwreck unity and democracy in Iraq.

The United States long ago reached the high water mark of the good it has done there. It should adopt the least bad exit strategy: a punctual and orderly departure. Better a misfortune in Iraq than a calamity.

Four glaring flaws bedevil the draft Iraqi document. It proclaims a cornucopia of social welfare rights more akin to a child’s Christmas list than enforceable law. Its celebration of the “undisputed rules of Islam” contradicts its enshrinement of individual freedoms. Its equivalent to the United States’ Bill of Rights is largely an illusion, like a munificent bequest in a pauper’s will. And its empowerment of regional authority to trump national power guarantees the disintegration of Iraq.

A constitution earns public contempt by proclaiming utopian rights ineluctably to be honored in the breach rather than the observance. Articles 29-34 of the draft constitution are exemplary. Article 29 guarantees family bliss. “Motherhood, childhood, and old age” are protected by the state. Juveniles and youths are crowned with a right to “care” and “agreeable conditions to develop their capabilities.” Children command a “right to upbringing, education and care from their parents,” while parents reciprocally enjoy a “right to respect and care from their children, especially in times of want, disability, or old age.” And every person is laurelled with a right to be free from “[v]iolence and abuse in the family, school and society….”

But none of these constitutional rights are plausibly enforceable in courts of law. For example, there are no manageable legal yardsticks to determine whether a parent has provided a proper upbringing or education to a child, or whether a child has given due respect and care to his parents. And if such yardsticks could be fashioned, the government of Iraq would be permanently bankrupt and the energies of its citizens would be squandered in endless litigation.

Like Article 29, Articles 30-34 proclaim rights to a heavenly existence: free education in all its stages; social well-being and health care, including social and health insurance; housing and rehabilitation; freedom from ignorance, fear and poverty; protection against old age, sickness, disability, unemployment or becoming a refugee or orphan; and, a “right to live in a correct environmental atmosphere,” with “biological diversity.” These are magnificent ambitions. But they are legal delusions.

Self-contradictions plague Iraq’s draft charter, making the law unknowable to citizens, lawyers and judges alike. Article 14, for instance, prohibits gender discrimination. But Article 2 prohibits any law that transgresses the undisputed rules of Islam. (Article 90 provides that the Supreme Federal Court will consist of “judges and experts in Islamic Jurisprudence.”) The consensus among Islamic scholars is that women are inferior to men in such family law matters as divorce, child custody, and inheritance. Further, Islam generally treats the testimony of women as worth but one-half that of men. The Iraqi constitution is clueless on how to reconcile the contradictions between Article 2 and Article 14. Similarly, the protections of religious freedom and free speech guaranteed in Articles 35 and 36 clash with the prohibitions in Islamic jurisprudence embraced in Article 2 on a Muslim’s conversion to another religion or criticizing the Holy Prophet.

Fundamental freedoms ostensibly safeguarded by the draft constitution are subjected to the whims of parliament. Laws may abridge freedom of expression or association in the name of “public order or morality.” Thus, Salmon Rushdie could be denied the right to sell Satanic Verses on the streets of Baghdad or Najaf on the theory that public order would be threatened by Muslims who believe the book blasphemes the Holy Prophet. Article 38 empowers parliament to enact laws to invade the privacy of communications. Article 17 denies a right to personal privacy for behavior that offends “general morality.” While Article 20 prohibits “[a]rbitrary detention], no threshold of suspicion is required to arrest. Article 23 guarantees freedom to own property only if the owner does not threaten a demographic change, for example, an Arab could not own property in Kurdish provinces.

A nation not contemplating dismemberment subordinates regional authorities to the center in cases of conflict. The United States, for example, makes the constitution and laws enacted by Congress “the supreme law of the land.” America would have dissolved as early as 1815 over trade restrictions with Great Britain and France imposed by the national government if local laws were deemed superior. The draft Iraqi constitution, however, subordinates the center to the regions, except for a handful of matters like national defense, finance, naturalization or broadcasting. Regions are ascendant in administering customs and the environment, health, economic development, electric power, education and water. Police forces, jails, and prisons will be regional. And regional views will triumph in the development of Iraqi’s oil and gas wealth.

President Bush and his Iraqi Ambassador, Zalmay Khalilzad, have in substance applauded Iraq’s draft constitution as an “incomplete success.” Isn’t that the phrase President Jimmy Carter euphemistically employed in characterizing the calamitous failed rescue of American hostages in Tehran?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.