- The Washington Times - Monday, March 22, 2004

The appointed and much scorned Iraqi Governing Council promulgated an interim constitution on March 8, 2004. Its defects are alarming. When the Coalition Provisional Authority dissolves on June 30, 2004, Iraq is destined to disintegrate on the installment plan or faster. Styled the “Law of Administration for the State of Iraq for the Transitional Period,” the interim constitution is illegitimate, amateurish and unenforceable.

It was fashioned by unelected Iraqis untutored in the arts of democratic governance and the rule of law. According to some polls, prominent IGC member Ahmed Chalabi commands less popular confidence than Saddam Hussein.

Neither through popular referendum nor elected representatives have the Iraqi people conferred moral legitimacy on the interim charter, which is no more popularly respected than the French Monarchy of Louis XVI. But no constitution consistent with democratic freedoms is worth a farthing unless voluntary compliance and popular veneration are likely to be forthcoming.

The interim constitution neglects to establish rules for creating an Iraqi government entrusted with its enforcement when the CPA dissolves concurrent with the termination of United States sovereignty on June 30, 2004. Article 2 cryptically declares the Iraqi Interim 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.”

Left undecided is whether the Interim Government will be appointed or elected; who will do the appointing or electing; whether members will represent regions, religions, ethnic groups, or equal populations on the one-person-one vote principle. At present, even crumbs of consensus are difficult to discern among Kurds, Sunnis, Shi’ites, Turkmen and other factions with less than 100 days before the June 30 deadline. And eleventh-hour political pacts concluded between sharply divided constituencies typically break at the first serious quarrel.

The unviability of the interim constitution is further established by centerpiece provisions that celebrate an Islamic theocracy and an anemic rule of law unadorned with fundamental freedoms.

Article 7 crowns Islam as the official state religion and a source of legislation. It further ordains that, “No law that contradicts the universally agreed tenets of Islam” is valid. Thus, the Holy Koran is every bit as much the supreme law in Iraq under the interim constitution as the United States Constitution is in the United States.

The Islamic theocracy enshrined in Article 7 mocks the stipulation of Article 12 that religious discrimination is prohibited. If the latter were true, then papal encyclicals would be as legally binding on Iraq as the Holy Koran. To borrow from George Orwell’s “Animal Farm,” all religions are equal in the interim constitution, but Islam is more equal than others.

Article 7 also discredits secular government. To determine the universally agreed tenets of Islam requires the learning of mullahs, not law school graduates. In other words, the interim constitution will be administered by Islamic scholars debating religious points, not by secular judges debating points of law.

Articles 7 and 12 additionally war over equal rights for men and women. Islam discounts the testimonies, inheritance, divorce and child custody rights of women. Four eyewitnesses are generally required to prove rape. These gender discriminations are compelled by the interim constitutional mandate that no law contradict Islamic teachings.

On the other hand, Article 12 insists that, “All Iraqis are equal in their rights without regard to gender.” But to make equality and inequality equally mandatory is to enter the nonsensical domain of “Alice in Wonderland” denuded of legal principles.

The individual rights enumerated in Article 13 are ridiculously empty.

Subsection (A) promises protection of “[p]ublic and private freedoms,” but declines any clues as to their core meanings. For instance, a private freedom might plausibly embrace abortion, polygamy, obscenity, contraceptives, drugs, liquor or prostitution. A judge interpreting the subsection will be unconstrained in imposing an idiosyncratic moral code. A government of men, not of laws, will prevail.

Companion rights enumerated in Article 13 are similarly hopelessly ambiguous or empty.

Subsection (B) protects freedom of expression without limitation. Does that mean defamation, child pornography, incitement to violence or criticism of the Holy Koran is protected?

Subsection (H) provides that, “Each Iraqi has the right of privacy.” It is uninformative, however, on whether that right reaches same-sex marriage, sodomy or protection against wiretapping, electronic surveillance or informants.

Subsection (F) guarantees freedom of religious practice, which would seem to include jihads against Christians, Jews or non-orthodox Muslims.

Other Article 13 rights are illusionary. Freedoms to peacefully assemble, to form political parties, labor unions, or professional associations, or to demonstrate are permitted only to the extent permitted by laws enacted by the Interim Government. Article 14 rights are utopian and unenforceable: namely, individual rights to security, education, health care and social security.

Emblematic of the deep suspicions that the majority Shi’ites will seek to crush minorities, Article 61 empowers Kurds in the north occupying three governorates to block a final constitution by a two-thirds vote.

In sum, the flimsy interim constitution confirms the probability Iraq will be torn asunder after United States control ends on June 30. President George W. Bush will pay a steep political price.

Bruce Fein is a constitutional lawyer at Fein & Fein and international consultant at the Lichfield Group.

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