Saturday, July 30, 2005

Leaked Iraqi Constitution (answering comments)

I had a few comments on my post regarding the Iraqi constitution, but earlier today, my friend Fayrouz wrote one that I think deserves a detailed reply. In part, she wrote:
"I read the Arabic version and it stinks. It will send Iraqi women to the dark ages. That's the least I can say."
Fay has me at a bit of a disadvantage in that I don't read Arabic, and am dependent on English translations. However, I have seen a few English translations of the leaked constitution, one of which was posted by Omar at Iraq the Model. Omar's concerns were similar to Fay's, and I am hoping his translation included the paragraphs Fay was concerned about (Fay, if there is something I'm missing that was not translated or was mistranslated, I'd appreciate your insight).

Here are the specific areas of concern that Omar had raised in ITM, and why I personally think these paragraphs are more benign than some people think they are.

1-the republic of Iraq (the Islamic, federal) is a sovereign, independent country and the governing system is a democratic, republican, federal one.

In the words of William Shakespeare, "a rose by any other name would smell as sweet." It really doesn't matter what you call the country, it's what you do with it that is important.

Personally, I'm from Canada, which is legally known as the "Dominion of Canada". Likewise, Mexico is legally known as the "United States of Mexico". Of course, most people don't know either of these names, they just know these places as Canada and Mexico, just like they will always know Iraq as Iraq, no matter what other extraneous words you put in front of it.

2-Islam is the official religion of the state and it is the main source of legislations and it is not allowed to make laws that contradict the fundamental teachings of Islam and its rules (the ones agreed upon by all Muslims) and this constitution shall preserve the Islamic identity of the majority of the Iraqi people (with its Shea't majority and its Sunni component) and respect the rights of all other religions.

I would personally prefer this paragraph not to be there at all, but if it stays, it would not be a big concern to me if I was living in Iraq. For my reasoning, let's consider what a constitution is, and what it is not.

A constitution is not a law, it is the foundation upon which laws are built. How it is used is if the government passes a law that violates the constitution, someone may challenge that law in court as being unconstitutional, and if the court agrees, the offending law may be voided.

The way this paragraph #2 is written is vague and probably unenforceable (especially when they put the "agreed upon by all Muslims" condition). Saying that Islam is the official religion of the state has no more effect than saying the Bald Eagle is the official bird of the United States. Likewise saying that Islam is the "main source of legislation" has no real legal meaning either.

The second part of that sentence has a bit more punch in that it stipulates that the government may not pass a law that goes against the fundamental teachings of Islam and its rules. Let's think about this - laws generally stipulate what you are not allowed to do - in the absence of a law prohibiting an activity, you're allowed to do that activity. Thus, the only real effect of this paragraph is if the Iraqi government were to pass a law banning something required by Islam (daily prayers, etc.) this provision could be used to get that law thrown out.

3-The Iraqi community is made of two main ethnicities; these are Arabic and Kurdish and of other main ethnicities; these are Turkmen, Chalideans, Assyrian, Armenian, Shabak and (Persian) and Yazidi and Mendayeen, all of which are equal in rights and duties of citizenship.

All this paragraph is doing is saying that Iraq is made up of a number of different ethnicities, but each of these ethnicities are equal in rights and duties of citizenship. The main effect of this paragraph would be to preclude someone arguing in court, "I don't need to pay taxes to the Iraqi government because I'm not Iraqi, I'm Kurdish (or Chaldean, or Yazidi, or Turkoman, etc.)" This paragraph specifically states that all of those various ethnic groups in Iraq are Iraqi citizens and subject to the same duties (taxes, military service, etc.).

6-The state protects the basic rights of women including equality with men in accordance to the Islamic share'at and the state helps the women in creating balance between their duties within their families and their duties within the community.

One could argue here that men and women are not equal under Islamic share'at, but this would not matter because in either case this paragraph #6 does clearly state women are equal to men. In addition, paragraph #1 in the Bill of Rights says, "all Iraqis are equal before the law regardless of gender..." That paragraph #1 is VERY specific, and does not mention anything about "according to share'at".

This paragraph #6 actually seems to guarantee some extra rights to women in "creating balance between their duties within their families and their duties within the community." Duties within their family suggest raising children, and duties within the community suggests their work. I personally read this as guaranteeing women certain rights with respect to childbirth.

We all know that women bear the brunt of the load in raising a family. They have to carry the fetus around with them for nine months, then risk their lives giving birth, and spend the first few months recuperating from the birth process and (in many cases) breast-feeding the baby. This can put an undue strain on a woman's career. Here in America, women fought long and hard for the right to maternity leave, where they can take several months away from their job to give birth, and return and be guaranteed their job back. This paragraph appears to guarantee women rights like maternity leave.


In short, some of these paragraphs may seem odious on the surface, but when you look at them further, they seem more benign, at least by my interpretation.

I do hope Iraq does not go down the same road we went down in Canada ten years ago. Ten years ago, we tried to pass a constitutional amendment, it was voted down because of nitpicking over a few sticking points, and the resulting discord almost tore Canada apart. The lesson many of us in Canada learned the hard way is that a constitution does not need to be perfect, it just needs to meet the basic needs of all involved.