TCS Daily

Constitutional Crisis

By Carroll Andrew - September 14, 2005 12:00 AM

There is a palpable disappointment with the new Iraqi constitution, a feeling that it will not sufficiently protect individual rights from the more illiberal traditions of Muslim culture. The concern may be legitimate, but the blame is misplaced. The problem is not that Muslim or Arab or Shiite culture is incompatible with a democratic political system. The problem is that the West is about to export yet another defective political construct to Iraq.

The West has been shipping bad political ideas to the Middle East, and to Iraq in particular, for almost a century. In the 1920s, the West sent Iraq the idea that defined borders were enough to establish a nation state, even if the people within had never agreed amongst themselves to get along. A few decades later, the West sent European fascism to Iraq as a brutal but superficially efficient method for dealing with the lack of an Iraqi national identity. Now the West seems poised to send Iraq a third defective political export: its confusion about the nature of constitutionalism, a political export not anywhere near as noxious as fascism, but still dangerously flawed.

Originally, constitutions restricted governments. Constitutions laid out procedures that government had to follow when the freedom of the individual was to be limited in the name of the greater good and constitutions checked the power of government by enumerating actions that government could not take. Constitutions did not focus on affirming the existence of rights; individual rights originated from a higher source than government. Note the first amendment to the American constitution. Its language of "Congress shall make no law..." skips any affirmation of rights, and goes right to imposing limits on the power of government.

Under two major historical influences, constitutions became broader than limitations on the government. At the start of the twentieth century, Soviet-style constitutions began to promise all kinds of rights to citizens, without bothering with any mechanism to guarantee or enforce them. Then, after World War II, governments began building de-Nazification protections into rights declarations. Adolph Hitler had come to power using democratic, constitutional means. To preempt the possibility of another Hitler, the Germans included Article 21(2) in their 1949 constitution,

        Parties which, by reason of their aims or the behavior of their adherents, 
        seek or impair or destroy the free democratic basic order or to endanger the 
        existence of the Federal Republic of Germany shall be unconstitutional. 
        The Federal Constitutional Court decides on the question of unconstitutionality.

With Article 21(2) enlightened European constitutions moved beyond putting restrictions on governments and into the business of putting restrictions on citizens.

The broader notion of constitutionalism had serious flaws. Guarantees of rights became so broad, and so ignored, they undermined public faith that a written constitution meant anything. And the merging of affirmative rights declarations with de-Nazification restrictions created a broad new class of government restrictions on individual freedom. Euro-style constitutions and human rights documents began restricting individuals not just from attacking the democratic order, but from engaging in any activity that conflicted with an enumerated right. Here is Article 30 of Universal Declaration on Human Rights, written in the same era as the German Constitution,

        Nothing in this Declaration may be interpreted as implying for any State, group 
        or person any right to engage in any activity or to perform any act aimed at 
        the destruction of any of the rights and freedoms set forth herein.

This type of vague limitation on the rights of groups and persons has become a fundamental building block of supranational constitutional law. Article II-114 from the recently proposed European Constitution echoes Article 30 almost exactly,

        Nothing in this Charter shall be interpreted as implying any right to engage in 
        any activity or to perform any act aimed at the destruction of any of the 
        rights and freedoms recognized in this Charter or at their limitation to 
        a greater extent than is provided for herein.

Western complacency towards the acceptance of broadly defined constitutional restrictions on individuals has infected the proposed Iraqi constitution. Here is an example, from Article 66(3),

        The candidate for the president's post must...have a good reputation 
        and political experience and be known for his integrity, rectitude, justice and 
        devotion to the homeland.

Article 66(3) may open the door for Iranian-style theocracy in Iraq. Iran's Council of Guardians maintains control over the Iranian political system, in part, by routinely disqualifying hundreds, even thousands of opposition candidates from participating in national elections. It is possible that an Iraqi government could use Article 66(3) to justify a similar practice in Iraq.

But the problem with Article 66(3) does not originate with a uniquely Islamic idea of restricting who can run for President. The problem originates with the absence of expressed limits on how government may enforce those restrictions. A more prudent version of Article 66(3), based on the original, more disciplined notion of constitutionalism, would have taken the right to good government and the right to run for President as unstated assumptions and focused on specific rules that the government had to obey when balancing them, something like,

        No Iraqi citizen who has been deemed fit for federal office by a simple 
        majority in at least six provincial legislatures shall be disqualified from running 
        for federal office.

It is unconscionable cultural arrogance to assume that potential abuse of Article 66(3), or any similar article of the Iraqi constitution, is a problem unique to Muslim or Arab culture. Preventing unaccountable elites from picking and choosing amongst rights in order to engineer societal "progress" is a problem the West has not yet solved for itself. The gravest danger facing Iraqi democracy is not that Iraqi culture is unready for democracy, but that Iraqi culture may expose weaknesses of modern Western political thought that have too long been ignored.

The author is a TCS contributing writer.


TCS Daily Archives