10 March 2004

We the people

The Transitional Administrative Law begins with an untruth. The people of Iraq were involved with drawing up this constitution only in the persons of the 25 IGC members. There are excellent reasons for wide popular participation in constitution-making. They have been ignored in the drafting of this law. The less popular participation there is, the less legitimacy any constitution can enjoy, in Iraq or elsewhere.

The impressive system of institutions and rights is all subject to one very large exception:

Article 59 provides:

(B) Consistent with Iraq's status as a sovereign state, and with its desire to join other nations in helping to maintain peace and security and fight terrorism during the transitional period, the Iraqi Armed Forces will be a principal partner in the multi-national force operating in Iraq under unified command pursuant to the provisions of United Nations Security Council Resolution 1511 (2003) and any subsequent relevant resolutions. This arrangement shall last until the ratification of a permanent constitution and the election of a new government pursuant to that new constitution.

(C) Upon its assumption of authority, and consistent with Iraq's status as a sovereign state, the elected Iraqi Transitional Government shall have the authority to conclude binding international agreements regarding the activities of the multi-national force operating in Iraq under unified command pursuant to the terms of United Nations Security Council Resolution 1511 (2003), and any subsequent relevant United Nations Security Council resolutions. Nothing in this Law shall affect rights and obligations under these agreements, or under United Nations Security Council Resolution 1511 (2003), and any subsequent relevant United Nations Security Council resolutions, which will govern the multi-national force's activities pending the entry into force of these agreements.

Article 59 continues the powers of the military occupation, really the rest of the instrument then becomes a system of camouflage for the continuing occupation. Article 59 means the Iraqi armed forces must take orders from the unified command - the US and not the Iraqi Transitional Government. That is less than sovereignty and less than legitimacy. It is a law that binds the future elected government on the authority of the unelected Iraqi Governing Council. That has been already been denounced in the Sistani fatwa and there are serious questions of whether any future elected government will regard them as binding.

The TAL does not provide for how the Iraqi Transitional Government is to be established. Chapters 1 and 2 set out fundamental principles and a bill of rights. Chapter 3 provides for a transitional legislative authority, but it its election is to be no later than 31 January 2005. There is no provision for a legislative body in the interim between the commencement of the constitution and the election, although that may be covered by the Annex required by Article 2(1) which provides:

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, including the fundamental principles and rights specified herein, and with an annex that shall be agreed upon and issued before the beginning of the transitional period and that shall be an integral part of this Law

Article 29 provides that the Governing Council's work is to end on the assumption of full authority by the Iraqi Transitional Government under the Annex yet to be written. presumably the Annex will also create some kind of interim legislature to substitute for the National Assembly until it is elected. The Annex (my guess is that it will look a lot like the Bonn Agreement brokered by the UN for Afghanistan) is all-important. Until we know what is in the Annex it is hard to envisage what the final shape of the ITG will be and if it can move Iraq successfully towards a democratic, stable and liberal society.

The debates on the TAL were not public. No draft was ever published in advance for public comment. There was no system of public education and consultation. The use of terms characteristic of common law terms like 'eminent domain' in Article 16(B), 'crime involving moral turpitude' in 31(6) confirm that the CPA, admitted or not, was a major player in the constitution-making process. 'Eminent domain' and 'moral turpitude' owe their meanings to a mountain of common law precedent. Whether Iraqis are going to receive that into their legal system remains to be seen. The use of terms of art from the common law in a nation without a common law tradition is probably unwise.

Today's Washington Post confirms the closed nature of the process. In Interviews, Iraqis Profess Ignorance About Law's Details:

In several interviews in Karrada, a crowded commercial district in the Iraqi capital, the dominant theme was ignorance of the interim constitution's basic features, even among those who said they watch and read the news regularly. Those who were familiar with the outline of the new law said they doubted it would produce political stability and democracy after the U.S. civil occupation officially ends on June 30.

Most Iraqis interviewed could not name any of the constitution's 63 articles and did not know that they included a bill of rights or provided for a federalist and republican form of government.

'We must read it first, before we know what to think about it,' said Ahmed Hassan, 35, who runs a small perfume shop.

Hassan said the local news media have provided little information about the constitution. His wife, Khadijah Radhi, 30, agreed. 'It wasn't on television or in the paper,' she said. 'Until now, we didn't know what were the points of disagreement.'

Occupation officials said they hoped to build support for the constitution through outreach. 'There will be an elaborate public information campaign to begin talking about the document in even greater detail,' a senior U.S. official said Monday.

Read the TAL's Preamble (boldface mine):

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.

These people, affirming today their respect for international law, especially having been amongst the founders of the United Nations, working to reclaim their legitimate place among nations, have endeavoured at the same time to preserve the unity of their homeland in a spirit of fraternity and solidarity in order to draw the features of the future new Iraq, and to establish the mechanisms aiming, amongst other aims, to erase the effects of racist and sectarian policies and practices.

This Law is now established to govern the affairs of Iraq during the transitional period until a duly elected government, operating under a permanent and legitimate constitution achieving full democracy, shall come into being.

The preamble is untrue. The IGC, not the Iraqi people have made this law and their authority comes only from the CPA.

This is not the most liberal constitution in the Middle East. Jordan's constitution is, on its face, a liberal instrument of government. Chapter 2 provides for a bill of rights and Chapter 3 mandates the separation of powers. The document does not make Jordan a liberal democracy. The Egyptian constitution also catalogues rights in Part 3. For example Article 40 guarantees:

All citizens are equal before the law. They have equal public rights and duties without discrimination due to sex, ethnic origin, language, religion or creed.

Egypt's Article 42 provides:
Any citizen arrested, detained or whose freedom is restricted shall be treated in a manner concomitant with the preservation of his dignity. No physical or moral harm is to be inflicted upon him. He may not be detained or imprisoned except in places defined by laws organizing prisons. If a confession is proved to have been made by a person under any of the aforementioned forms of duress or coercion, it shall be considered invalid and futile .

Google 'Egypt' and 'torture'. The results give little comfort to the idea that a constitution, in and of itself, can create a liberal society. Equally the TAL's Article 59 seems to authorise the multinational force to operate outside the ambit of the new Iraqi charter of rights.

The Consultative Committee on an ACT Bill of Rights reported:

2.88 The Consultative Committee acknowledges that the existence of a bill of rights alone would be insufficient to bring about a significant change in the ACT?s culture of respect and observance of rights. As Professor Tom Campbell noted, having a bill of rights is no guarantee that it will be observed.92 Such change would require political will at the highest level. It would mean devoting resources to educating those who administer government programs, from the agency chiefs right through to the newest recruits. It would mean making education a formal, permanent part of each agency's corporate plan. In essence, it would mean building a public sector where a 'rights-respecting culture' would imbue decision-making at every level. While a bill of rights cannot of itself create a human rights culture, it is clear that without such a document a consciousness of rights will never routinely inform the processes of government.

These weaknesses go back to the way that the TAL was drafted and enacted. The constitution-making authority of the IGC is entirely derived from the CPA. Even consultations with civil society were minimal while the entire process was conducted behind closed doors. The attempt to create a liberal society with or without popular consent is contradictory and the TAL does little to advance that project.

The trouble with the US enterprise in Iraq is that if, at any stage, there is a clash of interest between US and Iraqi interests the occupation will naturally uphold US interests. That is unlikely to change under the TAL which authorises and continues the occupation. The Iraqi Transitional Government will be entirely dependent on the occupation for legitimacy and military support. The TAL prescribes that. How then is the ITG really going to be any different from the feeble string of Saigon governments that existed during the Vietnam War?

Last November the International Crisis Group said:

In an ideal world, a broadly interactive process would unfold in which elected representatives actively engaged in civic education concerning issues germane to the drafting of a constitution and invited public debate on its most controversial elements. The situation in Iraq today, as all recognise, is not ideal. Rather than signalling that certain allowances ought, therefore, to be made and a flawed process accepted, however, additional time should be found to permit a solid process to run its natural course. The notion of establishing a more legitimate transitional government responds to that requirement. A critical third element is transparency and public participation. The experience in Iraq so far teaches that lack of openness on the part of the CPA gives rise to damaging rumours, which in turn trigger actions (such as the Sistani fatwa) that, whatever their merits, run counter to professed U.S. objectives. It also compounds alienation and feelings of disenfranchisement among Iraqis and therefore fuels opposition. The sense that Iraqis have no ownership of the political process and are blocked from participation in decisions critical to the future of their country is profound. The work of the CPC, while conducted in relative openness as it visited the governorates in August and September, resulted in a confidential report on an issue that is so important it calls out for public debate. This approach augurs poorly for all the steps that must still be taken in the constitutional process, and must be reversed if the Iraqi public is to gain a sense of ownership over the final product.

In all this, a much greater role must be given to the United Nations, which should play a critical part in overseeing the political transition process, providing Iraqis with the technical expertise they require for the drafting of the constitution and the organisation of voter registration, elections (including the gathering of absentee ballots), a nationwide census and a popular referendum. The UN?s impartiality would do much to mitigate the prevailing impression that the U.S. is engineering the drafting of a constitution to further its own interests, and its experience in other transitional societies is certain to enhance the constitutional process in these difficult times. Baghdad/Brussels, 13 November 2003 135 That said, some Iraqis did note that the UN has perception problems to overcome, especially with regard to corruption charges and the problem of bureaucratic inertia to which Iraqis became acquainted during the sanctions decade. ICG interviews in Baghdad.

Obviously, the adoption of the TAL is a significant victory for the US, and arguably their first political victory since the collapse of the Saddam regime. Whether its short-term advantages outweigh the long-term risks remains to be seen. I have a few thoughts on the actual structure of government under the TAL and I'll post those in the next few days.

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