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Writing A Constitution For Post-War Iraq - 2003-04-07


The Bush Administration says it wants Iraq to become a democratic country after the fall of Saddam Hussein. One of the main challenges then in a post-war Iraq could be the writing of a new constitution. Some constitutional law experts are lookin at the challenges facing Iraq.

A constitution is described as a system of laws and principles that lays out the functions and limits of the government, as well as the rights of the citizens. However, Iraq is country with no history of liberal constitutional democracy.

Dick Howard - professor of law at the University of Virginia - says one of the first things that must be done is to create – what he calls – a “constitutional culture.” He says it is this “sense of restraint, tolerance or forbearance” that makes constitutional systems work.

Professor Howard says, "Iraq is a country, which certainly in modern times and indeed historically, had a very sophisticated elite, a professional class. A number of people who though economically they may be suffering these days, they certainly have a high level of education. I think these are people who have some sense of what it means to be a state in the modern world. I think beyond that, one has the challenge of trying to create means of, in effect, bringing ordinary people into touch with democratic norms."

Professor Hugh Corder – dean of the faculty of law at the University of Cape Town – says it’s important to have a broad spectrum of opinion.

He says, "Based upon my experience of being an adviser in the process of drafting the democratic constitution of South Africa in 1993, I think that the most important issue would be to ensure that as full a representation as possible of the spread of opinion in society was gathered together. I suppose, without preconditions, in order to begin to discuss the fundamental principles on which any constitutional arrangement should be based."

Georgetown University professor of constitutional Law, Mark Tushnet, says there are a number of ways that the various groups in Iraq could be brought together.

He says, "Part of the effort has to be to get the different elements to sit around the table and talk about how they want to organize the society. That can take place through leadership provided by the occupation forces, as occurred in Japan and Germany after World War Two. Or it can take place in a sort of self-generated fashion by those groups themselves."

Nevertheless, Professor Tushnet says, “Drafting a constitution that will simultaneously be democratic and keep the nation together is going to be an extraordinarily difficult task.”

He says,"The divisions within Iraq, even taking the existing regime out of the picture, seem to be quite substantial and deep rooted. The notion of independence for the Kurds, for example, is going to be a difficult problem for any constitution in Iraq to deal with."

One way such divisions might be overcome, according to University of Cape Town’s Hugh Corder, is a two-stage approach to drafting a constitution. He says the method worked well in South Africa.

He says, "First of all, putting in place a popularly elected group, which functioned both as government as well as constitutional assembly. And which, as well as governing, passing new laws and acting as the executive also spent a two-year period drafting a final constitution."

But Professor Tushnet says it does not necessarily matter which comes first – the constitution or the elected government.

He say, "There’s no special priority to having elections and then a constitution and / or some occupation force and then a constituent assembly drafting a constitution and then elections. Either way can succeed, either way can fail. It will depend on the particular of the circumstances."

One of those particulars may be the influence of Islam. University of Virginia law professor Dick Howard says there’s been a great deal of debate over whether “Islam is fundamentally compatible with western ideals of constitutional liberal democracy.”

He says, "I’ve heard that argued by both sides by Islamic scholars. There are those who point to a long and early tradition of pluralism and toleration in places like the Spanish peninsula in the Ninth and Tenth Centuries. There are other people who say modern Islam has become radicalized, fundamentalist in a way that makes it more difficult to have what we think of as a secular democracy side by side with a theocratic impulse."

Many who support the Bush Administration’s policy on Iraq point to the US success in Japan after World War Two. A military led government, headed by general Douglas Macarthur, ruled over Japan. And the Administration plans to do something similar for the interim in Iraq.

Professor Howard says, "The Japanese parallel comes to mind when you think about Americans as a military government, in effect, writing a constitution for a conquered country. The Japanese constitution, which was actually written in about seven days by Macarthur’s military government, and interestingly enough that constitution is still in place."

He adds, “It will take some doing to convince Arabs, not only in Iraq but throughout the Middle East, that America is not trying to be simply a cultural imperialist.” He says it’s important that the people who live with a constitutional system “feel that it really flows from their own history and their own traditions.”

South Africa’s Professor Corder also has some words of caution. He says when his country became democratic, the “world climate” was very different than it is today for Iraq. Professor Corder says, "In the late 80’s, early 90’s, one had the fall of the Berlin Wall and the democratization of Central and Eastern Europe – and nearly a wave of democratization moving through many parts of the developing world, including many parts of Africa. And lots of rewriting of constitutions and drawing up of bills of rights, etc, etc. And I think it was a very, very – and I hesitate to use the word – but hopeful decade for the development of limited government and government under the rule of law."

All agree that Muslim nations will scrutinize any new constitution to see whether it is “sufficiently respectful of the Muslim character of Iraq.”