The New Iraq Constitution: “Covering the Sun with a Sieve”

When it shall be said in any country of the world, my poor are happy, neither ignorance or distress is to be found among them; my jails are empty of prisoners, my streets of beggars, the aged are not in want, the taxes are not oppressive…When these things can be said, then that country can boast its constitution and its government.

Thomas Paine, The Rights of Man, 1792

George W Bush and his administration say the new constitution is another turning point in Iraq. Many Iraqis also believe that the new constitution is progressive. Certainly, many, as they did in the 30^th January elections, will opt for a ‘yes’ vote on 15^th October 2005 hoping that the situation in the country will stabilise, as the different factions, supposedly, will “have to abide by the law”. What is evident is that the Shiia and Kurdish leaders will get the constitution approved. However, a glance at the final draft of the constitution and an analysis of the reality on the ground would be necessary in order to grasp how much the document will actually change the situation in Iraq.

According to the BBC Online, “The constitution is flawed, but it represents hope and political option for the majority of Iraqis who want to stop the killing.” (BBC Website, 15 September 2005) UN legal advisers described the drafting process as ‘highly inappropriate’. They argue that a referendum held under the new rules would not meet international standards. The new rules stipulate that “the two-thirds majority needed in three provinces to defeat the constitution will now be counted from all registered – as opposed to actual – voters.” Thus, the possibility of defeating the constitution in the referendum has been made impossible. (BBC Online, Wed, 04 Oct 05) Al-Quds al-Arabi newspaper 11 October stated “the United States played a big role in drawing up the final draft of the constitution.”

This has been confirmed by Justin Alexander, legal affairs officer for the office of constitutional support with the United Nations Assistance Mission to Iraq, who told Inter Press Service (IPS) that Salmay Khalilzad, the US ambassador to Iraq, got the upper hand. Failing to meet the deadline set by the US administration and in order to break the stalemate, Khalilzad even went so far as to circulate at least one US draft.

We can hear George W Bush in another conversation with his God: These bloody Iraqis, Kurds...! We mobilised our troops, our tens of billions of dollars, risked our political careers, sacrificed our boys, and ignored our people’s voice when they opposed the war in order to give them peace, freedom and democracy, and they cannot write a constitution. Well then let’s write it for them.

Even the right-wing magazine The Economist is unable to defend this document. “It was an exceptionally necessary procedure”, says the magazine, “with corners cut, rules broken and little openness or public debate. For instance, after the constitutional drafters missed their deadline on August 15^th, parliament should have been dissolved and a general election called. After a week-long extension, they had still not signed off on a document. Then, days later, under fierce American prodding, a slightly different document was read out to parliament. It was never debated there nor voted upon.” (My emphasis, The Economist, 20 September 2005).

However, the defender of the capitalist market economy with its ‘ifs’, ‘buts’, and ‘yets’ always gives us hope and a light at the end of the tunnel. So in spite of the “tortuous, rushed and murky circumstances of its birth”, the same magazine believes that the text is a plausible and valid one since it reflects a consensus of the Shia Arab and Kurdish leaders. “Yet their main parties’ rank and file had little say in the document as it evolved.” (The Economist, 20 September 2005) The motto then is: ‘better than nothing’.

Undoubtedly, the occupation authorities intervened in the drafting process of the constitution in three ways. First, they selected the make-up of the commission that was to write the document. Second, the occupation authorities set the framework and parameters within which the draft should be written. Third, the US got involved in order to protect its interests; an article that forbids any presence of foreign bases or troops was dropped from the first draft. Article 16, which was in the first draft of the constitution, is amusing:

1. “It is forbidden for Iraq to be used as a base or corridor for foreign troops.

2. “It is forbidden to have foreign military bases in Iraq

3. “The National Assembly can, when necessary, and with a majority of two thirds of its members, allow what is mentioned in 1 and 2 of this article.

In the final draft there is nothing about not having foreign troops in Iraq.

Dr. Marinos Diamantides, senior lecturer of law at the University of London, told Inter Press Service: "One could argue the entire process is against the law. "According to the 1907 Convention for the pacific settlement of disputes, the occupying power has a duty to maintain the legal system of the country it occupies. This is the first time ever that an occupying power has dismantled the internal law system of the country it occupies."

“A goat even if she flies.” So runs an Arab saying. It is flawed, illegal and a ‘partly’ imposed document in the context of a country under occupation and on the verge of a civil war. Yet, the Iraqi people are asked to vote on it. More and more Iraqis are dying everyday and the Iraqi government is incapable of protecting the people. The number of the American soldiers killed so far is nearing two thousand, not to speak of the tens of thousands injured and maimed for life. The anti-war movement inside the US is getting stronger by the day. Obviously, as they did with the elections, both the occupation authorities and the Iraqi government are desperately looking for a ‘victory’ in order to save their faces in the United States and in Iraq respectively.

“A Progressive Constitution”

Let us for a moment put aside the main argument for the war according to George W Bush and Tony Blair - the weapons of mass destruction threat by Saddam Hussein’s regime - and go along with the rhetoric of democracy that has been resonating in our ears since they found the dictator in a hole with one gun and some cash in dollars. We are told that the warmongers are hell-bent on installing ‘democracy’ in Iraq. How will this new constitution achieve such a noble aim?

Article 2 of the ‘final’ draft constitution states that,

“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.

2^nd, This Constitution guarantees the Islamic identity of the Iraqi people…”

Is this what the US and Britain have gone into Iraq for? It is obvious to anyone who knows the general ideas of the Islamic Shari’a [Islamic law] that Islam contradicts the principle of democracy, even bourgeois democracy, in elections, in freedom of speech and expression, in freedom of association, in inheritance, in women’s rights, in art, etc.

Article 12 asserts: “The religious Marja’ia is respected for its spiritual role and it is a prominent religious symbol on the national and Islamic fronts; and the state cannot tamper with its private affairs.” In Iraq the word Marja’ia is used in allusion to the Shia religious figures like Sistani and other Marja’is figures in Najaf and Karbala. “Why is it,” asks a Muslim woman on http://riverbendblog.blogspot.com, “that the state can have no influence on the Marja’ia but there is no clause saying that in return, the Marja’ia cannot tamper in matters of state or constitution?” We should conclude that the ‘laws’ of Marja’ia could supersede the laws of the state.

Thus, laws such as banning boys and girls from mixing, like what happened when Mukta al-Sadr’s Mahdi Army attacked a group of students in a park, which resulted in the death of a boy, would be the business of Marja’ia. All this makes all the other articles speaking about freedom and civil rights merely ink on paper. In fact, the Marja’ia would be able to regulate relations between individuals as well as between religious groups as stipulated in Islam and interpreted by the religious leaders and mainly be the Shiia clergy.

Charles Krauthammer, from The Washington Post, blindly, or deliberately, omits the word ‘Islamic’, from the constitution. He wrote: “The idea that it [the constitution] creates an Islamic theocracy is simply false. Its Islamist influence is relatively mild…The word Islamic is deliberately and importantly omitted.” “The constitution writers in Iraq finessed the question of Islam by posing it as a thou-shalt-not. No law may contradict Islam…”(The Washington Post, www.washingtonpost.com, 2 September 2005) Again, Charles insists that though the animal flies, it is a goat. Why? Because there are articles that he agrees with. These article are more important because they deal with the property relations, the crux of the matter in our view.

A professor of modern Middle Eastern and South Asian history of the University of Michigan, and a Middle East scholar, Juan Cole, argues that the Iraqi constitution “is deeply self-contradictory and makes no provision for adjudicating the legal conflicts it sets up. For instance, it says parliament cannot pass civil legislation that contravenes Islamic law. But it also provides for freedom of speech, religion, and the press. So will blasphemy be punishable? There is no indication in the text of how conflicts like that would be adjudicated.” (www.foreignpolicy.com, 05 September 2005)

In article 25 we read: “The state shall guarantee the reforming of the Iraqi economy according to modern economic bases, in a way that ensures complete investment of its resources, diversifying its sources and encouraging and developing the private sector.” Compare this with articles 13, 14 and 15 in the old constitution:

Article 13: “National resources and basic means of production are owned by the people.”

Article 14: “The State secures, encourages, and supports all types of cooperation in production, distribution, and consumption.”

Article 15: “Public ownership and properties of the Public Sector are inviolable…”

Here we come to the ‘real democracy’ the ruling class in America wants to see not only in Iraq but also in the entire region. It is the ‘democracy’ of privatisation, the fundamentalism of the free market. As long as the American corporations are benefiting from the plunder of the country’s resources, the so-called democracy preached by the Oval Office and Downing Street will not bother itself with whether the Islamic laws are democratic or not. After all, we have to find a compromise and conciliation between all the groups. Has not Gadhafi of Libya been ‘forgiven’ though he was involved in killing ‘our own people’? Have not the regimes in both Algeria and Uzbekistan been our friends and allies in ‘the war on terror’?

In dealing with a constitution of any country, one should not ignore the social and economic factors that govern that country. Otherwise, we remain in the realm of law as taught at universities: a purely academic subject. Another glance at the new constitution and we see that it not only asserts the role of the private sector that will in the long term dominate the economy but also exposes the ambiguity and contradiction that some parts of the constitution entail. In education for example, the writers of the constitution are aware that moving from a free education for all under the former regime to a sort of an education run by both public and private sectors would cause a lot of damage and discontent. Thus we read in article 34,

2^nd, “Free education is a right for Iraqis in all its stages

4^th, Private and national education is guaranteed and regulated by law.”

Was not the old constitution the most progressive constitution in the Middle East, at least on paper? We do not wish to discuss the so-called ‘scientific socialism’ (and ‘Arab socialism’) preached by the dictatorship in this article of the constitution, as this is a separate topic. But let us again compare the two documents. In the old constitution we find the following:

Article 1: “Iraq is a Sovereign People’s Democratic Republic. Its basic objective is the realisation of one Arab state and the building up of the socialist system.”

Article 2: “The people are the source of authority and its legitimacy.”

Article 12: “The State assumes the responsibility for planning, directing and steering the national economy for the purpose of:

a) Establishing the socialist system on scientific and revolutionary foundations.

b) Realising economic Arab unity.”

The old constitution also asserted that education was compulsory and free of charge at all stages and that medical services were free. (Article 27a, and 33 of the old constitution. www.oefreunibe.ch/law/icl/iz01000.html).

Some commentators argue that some parts of the constitution are ambiguous and open to interpretation and that key passages, such as those dealing with decentralisation and with the responsibility for power taxation, are both vague and ambiguous and so carry the seeds of future discord.

As the Spanish say: “el papel aguanta cualquier cosa” (paper holds anything). What determines the accuracy, validity and the applicability of any constitution, or any law for that matter, is the type of social and economic relationship individuals, groups, tribes and classes have to the means of production. In the case of Iraq, those who will own or have control over the oil industry, the banks, the land and labour will, in conjunction with the international capitalists use, modify, manipulate and implement the law as they see suit their interests and find their representatives whether in al-Sistani or al-Sadr, al-Zarkawi or Shalabi. We would argue in the words of Seneca, “the law is like a spider’s web. The weak get caught in it; the powerful sweeps it away.”

“An occupation constitution”

The supply of electricity in the country is worse than ever, there is a shortage of water; there is fear of terror and kidnapping, and the general collapse of any civilised life. Are we to really believe that the constitution in these circumstances is the first thing on people’s minds?

When asked about the constitution by the British journalist Robert Fisk, an Iraqi replied: “ Sure, it’s important,” he said, “ But my family lives in fear of kidnapping, I’m too afraid to tell my father I work for journalists, and we only have one hour in six of electricity and we can’t even keep our food from going bad in the fridge. Federalism? You can’t eat federalism and you can’t use it to fuel your car and it doesn’t make my fridge work.” (The Independent, UK, 15 September 2005)

Again, undeniable facts make the constitution a mere piece of paper that will not change the fundamentals. On 19 September 2005, The Independent newspaper revealed, “one billion dollars has been plundered from Iraq’s defence ministry in one of the largest thefts in history…” The money was siphoned abroad in cash when it was supposed to be used to buy arms from Poland and Pakistan. “The Iraqi Board of Supreme Audit says in a report to the Iraqi government that US-appointed Iraqi officials in the defence ministry allegedly presided over these dubious transactions…”

“Government officials in Baghdad even suggest that the skill with which the robbery was organised suggests that the Iraqis involved were only front men, and ‘rogue elements’ within the US military or intelligence services may have played a decisive role behind the scenes…The sum missing over an eight month period in 2004 and 2005 is the equivalent of the $1.8 billion that Saddam allegedly received in kick-backs under the UN’s oil-for-food programme between 1997 and 2003.” (The Independent, 19 September 2005) The fraud took place under the notorious government of Iyad Allawi who, with his ministers, were appointed by the US and UN.

So the outcome of this so-called referendum will barely change anything. In reality the constitution itself, with the undemocratic process that preceded its drafting and all its contradictions will remain a piece of paper. The mountain was in labour. Zeus was afraid. But the mountain has brought forth a mouse.

In the words of Marx, “Thetis, the sea goddess, had prophesied to Achilles that he would die in the bloom of youth. The constitution, which like Achilles, had its weak spot, had also, like Achilles, its presentiment that it must go to an early death.”(Karl Marx, The Eighteenth of Brumaire of Louis Bonaparte, Marx Engels Selected Works, Progress Publishers and Lawrence & Wishart, UK, 1968, P. 104)

"Covering the sun with a sieve" is the best Arab proverb we can think of to describe this cosmetic constitution. The decisive factors will be on the ground not on paper.

A civil war in waiting?

In its report, Unmasking Iraq: A Constitutional Process Gone Awry, published on 26 September 2005, the pro-USA International Crisis Group says: “Instead of healing the growing divisions between Iraq’s three principal communities – Shiites, Kurds and Sunni Arabs – a rushed constitution process has deepened rifts and hardened feelings. Without a strong US-led initiative to assuage Sunni Arab concerns, the constitution is likely to fuel rather than dampen the insurgency, encourage ethnic and sectarian violence, and hasten the country’s violent break up.” (www.crisisgroup.com)

“The text that has now been accepted by the Transitional National Assembly, in their view [the view of the fifteen Sunni Arab leaders brought by the US onto the Constitutional Committee], threatens their existential interests by implicitly facilitating the country’s dissolution, which would leave them landlocked and bereft of resources…The US has repeatedly stated that it has a strategic interest in Iraq’s territorial integrity but today the situation appears to be heading toward de facto partition and full-scale civil war. Options for salvaging the situation gradually are running out.” (www.crisisgroup.com)

A "yes" vote in the referendum and the subsequent federal constitution will lead to a fundamental shift of power to the Shia south with its lucrative oil-wells and so, for the near future at least, the ‘insurgency’ will not relent. It will grow in power and deliver significant blows against the ‘stability’ of the government as well as to foreign investment. Donald Rumsfeld was right when he suggested that the insurgency could go on for 10 or 12 years.

But does this mean that it will lead to the country’s break up? This is unlikely. It is true, for example, that on 9^th October there was an attempt to kill al-Rashid, whose Badr Brigade is the military wing of the Supreme Council of Islamic Revolution in Iraq (SCIRI), the largest Shia party in the government. Badr Brigade fighters have been skirmishing with the al-Mehdi Army led by the radical Shia cleric, Muqtada al-Sadr. On another occasion, insurgents killed five Shiia teachers in a school.

But unlike Lebanon, Iraq has never had a civil war before. Even in Lebanon, where there were at least two civil wars, the situation did not lead to the country’s break up. Moreover, it is not in the interest of the occupation forces to see such a fate for Iraq as this might endanger their interests. Recently, the American forces, togethere with some Iraqi units, assaulted the village of Tal Afar, another savage military attack, second in scale only to that of Fallujah. In 1920 Tal Afar witnessed a similar attack and an uprising of the people. At that time it was by the British. Lloyd George spoke about Iraq in the same tune as Bush and Blair speak today: if we pull out of Iraq there will be a civil war! It is in fact the same argument repeated time and time again to justify the need for the occupying forces in Iraq.

In due course the pressure inside the United States and Britain and other countries will grow and push new governments to pull their troops out. Public opinion against what is happening in Iraq is shifting more and more against the Bushs and the Blairs. Events taking place in the US are also playing a great role in shaking the consciousness of the working class and the poor and linking American foreign policy with the domestic one.

Once this happens the present piece of paper, the new Iraqi constitution that is being discussed in Iraq, will be ripped to shreds by the real struggle on the ground.