- The Washington Times - Monday, June 2, 2003

The United States and most Iraqis covet a new, transformative, and democratic Constitution for Iraq. The task is daunting, vastly more so than the Miracle at Philadelphia in 1787. But it cannot be avoided if Iraq is to escape the semi-anarchy and chaos of post-Taliban Afghanistan or the de facto partition of Bosnia.

The following is a general blueprint that would seem promising. Iraq would be divided into 150 single-member electoral districts of approximate equal population of 167,000. The boundaries would aim to make districts balanced among ethnic and religious groups to encourage moderate, consensus-building candidates and an ethic of representation that is more national than parochial or clannish. Each district would elect one delegate to an Iraqi constitutional convention. The elections would be held in two years, and the convention 30 days after certification of the electoral results.

The candidate who attracted the greatest number of votes in a district would be elected. A first-past-the-post system discourages a splintering of parties or a multiplication of aspirants. The franchise would be extended to persons 21 years or older who have not been convicted of a serious crime. A minimum age of 30 should be set for candidates. They should also be vetted for past Ba’ath Party membership, crimes of moral turpitude, or adherence to a party or ideology, secular or religious, antagonistic to democratic precepts, including equality and the rule of law.

There is nothing alarming to democracy about excluding candidates pledged to its destruction, including mullahs who would subordinate law to theology. In Germany today, neo-Nazi or other anti-constitutional parties are illegal. It learned a frightful lesson from the Weimar Republic’s toleration of Adolf Hitler’s National Socialists.

To qualify for the ballot, candidates would need supporting petitions signed by 4 percent of voters within their respective districts. An Iraqi Broadcasting Authority would provide free, adequate and equal broadcast or cable time to candidates during the 12 months prior to election. Private stations or newspapers would be free from any equal time or space obligations. Foreign campaign contributions would be prohibited.

The mechanics of the election would be assisted by the expert International Republican Institute and the National Democratic Institute. The elections would be monitored by international observers. Each candidate could field a team of poll watchers.

The United States would develop with untainted Iraqi lawyers and judges consensus principles that would bind the 150 popularly elected delegates to the constitutional convention. This would be no novelty. For example, the United Nations Transition Administration for Cambodia (UNTAC) promulgated six fundamental principles to inform a new constitution for Cambodia, including an independent judiciary empowered to enforce individual rights and protection of private property.

In addition to the latter, the Iraqi principles should include: a prohibition of unreasonable searches and seizures, ex post facto laws, and, retroactive impairments of contract rights; a right to jury trial, unanimous verdicts, and proof beyond a reasonable doubt in criminal cases; freedom of expression and association; a right to petition for redress of grievances; periodic and secret elections to a parliament and president; equality irrespective of ethnicity, gender, religion, nationality, or race; a right to counsel; a right to sue the government and wrongdoing officials for damages for constitutional violations; and, a separation of church and state.

The latter is indispensable for the rule of law and democracy in Iraq with its 60 percent Shi’ite population and mullahs devoted more to the edicts of the Holy Koran than to secular laws ordained by popular and democratic consent. The unbending dogmas of theology and ideological compromises and fuzziness of democratic politics cannot escape clashes. Policy chiaroscuro is the signature of healthy diversity and toleration. In contrast, Islam is taught and practiced in much of Iraq in prime colors intolerant of shades or pastels in culture or ideas. Accordingly, the Iraqi Constitution should prohibit any religious motivation defense to a violation of a valid and evenhandedly applied secular law; and, it should prohibit the enactment of laws whose sole purpose is the promotion of religion with no plausible secular objective. These prescriptions are necessary to insure that women enjoy the same rights as men in matters of domestic relations, including divorce, inheritance, testimonial credibility, child custody, or alimony.

A 30-member drafting committee would be elected from the 150 convention delegates to prepare a constitution following the prescribed principles. Their work sessions should be confidential to facilitate compromise and moderation in emulation of our own spectacularly successful constitutional convention. The draft constitution itself, in contrast, would be debated by the full convention and would be subject to amendment in pubic proceedings. To become effective, the constitution would need a majority of delegate votes, the approval of the United States civilian administrator, and, its ratification in a plebiscite by at least a 60 percent supermajority.

An impeccable constitution, simpliciter, will not transform Iraq into a genuine democracy. It must be complemented by equally transformative changes in Iraq’s political, educational, legal, and religious cultures. That is a subject deserving a separate column.

Bruce Fein is a founding partner of Fein & Fein.

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