The failure of the Iraqi Constitution

Noah Feldman wrote an interesting piece on the Iraq's Constitution in the NYT, today. His main point is the following: the constitution is a good enough document, the problem is that american pressures to respect the deadline has created frictions between the Shiite majority and the Sunnis minority, in particular relating to the issue of federalism (repartition of Iraq between kurds, shiites and sunnis).

As a senior adviser for consitutional law to the Coalition provisional authority in Iraq, one feels that his final judgement on the constitution itself is slightly biased, however. He says that improvement have been made throughout the whole process, and eventually "the text strives to balance democratic equality with the Islamic values."

I disagree. If balancing competing values simply means asserting them one after the other, as I pointed out yesterday in another post, then this strikes as a badly concocted compromise which merely postpones constitutional dilemmas involving the interplay of islamic values with other occidental ideals.

Let's face it, democracy is not a neutral value, but it is only perceived as good if it helps enhancing certain basic values of the community. For example, american conceptions of democracy are at odds with european conception of democracy in a number of cases (e.g when free speech trumps privacy without appeal). Islamic conceptions of democracy will tend to be even more remote from western interpretations. I am not saying that this is a bad thing. All I am saying is that the "balance" striken by the Iraqi Constitution between Islamic values and democratic values is bound to collapse any time after the, unlikely, approval of the Constitution.

Hence, the text is not particularly good, and it has not necessarily improved over time as Feldman insists. For one, its internationalist element has lessened considerably if you compare the transitional law with the draft constitution.

Other aspect of the constitution are disappointing as Feldman himself acknowledges. For example, the constitution is very ambiguous as to the composition of its federal court. The way in which this will be worked out, is likely to have a huge impact on the substantive constitutional issues that have been left unanswered. In particular, as Feldam notes, regarding the issue of federalism.

The issue of federalism, however, is but a window dressing for a much trickier problem, undoubtedly The problem of Iraq: the distribution of revenues coming from oil. It is on this point that the poor sunnis minority is not likely to bow to any constitutional balance or compromise. They are afraid to be left out and kept outside any major political deal on oil revenues. They feel, as Feldman puts it, that politics is useless if you are in the minority.

Day-to-day politics, and especially oil politics, is all that matter, Feldman seems to say. So why bother having a carefully cooked constitution, one wonders? Feldmand's answer is surprisingly frank: "A constitution is just a piece of paper, no better than the underlying consensus- or lack thereof- that it memorializes."

This is the ultimate sign that there is something wrong with the 'balances' and 'compromises' reached by the constitution. They are only smoke in the eyes, and the constitution is failing to address the most important problems, which will not be solved without an open confrontation on values and procedures to enhance them. But, as already pointed out, the Iraqui constitution fails to do so.