- The Washington Times - Monday, July 28, 2003

Most Americans would like to see us out of Iraq as soon as our goals for democracy and an economic recovery not solely dependent on oil have been realized. We all know by now, the task of rebuilding Iraq will be more costly than anyone thought, and it will take time. As U.N. Secretary General Kofi Annan has observed, “Democracy can’t be imposed from the outside.”

Rebuilding Iraq has many facets. Security surely is the cornerstone. We read of a greater Iraqi role in structuring a police force, a civil-defense militia and border guards to work with the coalition military in protecting the infrastructure, quelling the disruptive violence and restoring order. But there is another key issue central to the mosaic of building a new Iraq: the need for a new constitution.

Last Tuesday, three members of Iraq’s 25-member interim governing council arrived in New York to meet with the Council on Foreign Relations and then U.N. Security Council officials. They received a guarded welcome. Secretary General Annan said the American-appointed body was an “important step toward the full restoration of Iraqi sovereignty.” And the U.N. special representative to Iraq, veteran Brazilian diplomat Sergio Viera de Mallo, referring to the interim council, proclaimed, “We have now an institution that, while not democratically elected, can be viewed as broadly representative of the various constituencies in Iraq.” Of course, the interim council has no real power.

A key member of the group, Adnan Pachachi, a foreign minister in the Iraqi government preceding Saddam Hussein, stressed that the council’s “primary goal is to shorten the duration of the interim administration.” Mr. Pachachi also uttered the most un-Arab view that the socialist foundation of Iraqi politics must change to a more liberal one (i.e., valuing the individual over the group).

But Mr. Pachachi prioritized the drafting of a new constitution that would establish the institutions of government and protect the basic rights of individuals as the first order of business. And, as any lawyer knows, the drafting of a constitution takes time and thoughtful attention.

In point of fact, Iraq has a constitution which King Faisal I drafted for the country in 1925. That constitution, finding its roots in the British system and indeed the U.S. constitution, deserves serious consideration as the basis for Iraq’s new charter. While that constitution provides for a monarchy and establishes Islam as the state religion, it could be quickly adapted to today’s realities.

Resonating with basic values imbedded in the U.S. Constitution, the 1925 charter provides, among other things, for civilian control of the military; freedom of expression, of religion, of the press and of assembly; equal justice under law without discrimination on the basis of language, race or creed; and protection of personal liberties. It guarantees freedom from unreasonable searches and seizures; access to the courts; property rights; the right to petition the government for redress of grievances; and privacy in communications by mail, telephone or telegraph. It outlaws torture and deportation.

The 1925 constitution also provides for a prime minister and a Cabinet, a bicameral legislature with the power to tax and appropriate funds, and an independent court system. It expresses the authority of the judiciary to declare an act of the legislature unconstitutional.

In certain respects, the 1925 constitution is superior to the U.S. constitution. It provides that no person may “become a member of the Senate or Chamber of Deputies … who is a lunatic or an idiot.”

The 1925 constitution is a good start. King Faisal was attempting to build a modern democratic country. In only 11 years, he managed to achieve the independence of Iraq, which became the first Arab country recognized as a member of the League of Nations. More importantly, it is a jump start. While the document may need some fine tuning, its undeniable virtue is that it is quintessentially Iraqi, having been drafted by Iraqis, for Iraqis and of Iraqis. It was drafted years before the Americans got there. And it is readily available.

It was surprising Mr. Pachachi expressed no enthusiasm for the 1925 constitution. If any Iraqi should have thought highly of it, he would be the one. He served the governments in the 1950s and 1960s that would have based their legitimacy in part on that constitution, before it was utterly subverted and repealed by Saddam. He would have been politically active at that brief moment in 1958 when it looked like Iraq might actually move toward a more democratic future.

Mr. Pachachi gave as his reason that the world has changed dramatically since 1925. This is obviously no answer. The United States Constitution was adopted in 1789 and remains vital. Indeed, we have found the need to amend it only 27 times since.

James D. Zirin is a lawyer in the New York office of Sidley Austin Brown & Wood LLP. He is a member of the Council on Foreign Relations.


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