This guy is usually right on the money, and has great insights on the Middle East. Enjoy. :)
IRAQ'S CONSTITUTIONAL CHOICES
by Amir Taheri
New York Post
August 26, 2005
August 26, 2005 -- EVEN before its publication, the draft Iraqi constitution had been attacked by those who had opposed the liberation of Iraq in the first place.
The main attacks have focused on two issues:
Sunni outrage: The draft has angered Arab Sunni elites by proposing a federal structure for the new democratic state. But this is no way related to religious differences, as some nostalgics of Saddam Hussein in the West pretend.
The Arab Sunni elites believe that a federal structure makes it harder for them to, one day perhaps, regain the dominance they once enjoyed. A highly centralized state in which power is concentrated in Baghdad would be more vulnerable to a military coup d'etat or a fascist-style putsch through which the Sunni elites could seize power when and if the opportunity arises.
But when all is said and done, the fact remains that a majority of Iraqis seem to prefer a federal structure — if only because they fear the return of despotism based on a strong central power in Baghdad. The least that anyone can do is to respect their views, even if one does not agree with them.
What of the claim, made in so many articles in the Western press in the past few days, that the Sunnis are enraged with the draft? The truth is that we do not know. Unlike the Shiite and Kurdish representatives, who were elected members of parliament, the Sunni politicians in the drafting committee were government appointees. (Having boycotted January's general election, the Sunnis didn't have enough parliamentarians to dispatch to the drafting committee.)
We shall have to wait until the Oct. 15 referendum on the constitution to find out whether a majority of Sunnis share the apprehensions of the Sunni politicos in the drafting committee. If they do, they could block the draft by voting against it: Four of Iraq's 18 provinces have Arab Sunni majorities, and any two provinces can stop ratification by voting "no."
The role of Islam: Many members of the drafting committee wanted Iraq to be re-named "The Islamic Republic of Iraq" — thus joining Pakistan, Iran, Sudan and Mauritania. The Iraqis, however, decided not to use the label "Islamic," a sign that they don't wish to set up a theocracy.
They did, however, acknowledge Islam as the religion of the state and a main source of legislation. Had they not done so, it would have been virtually impossible to persuade a majority of the Iraqis to vote for the new constitution.
Does this mean that the new constitution cannot be democratic? Not at all.
The draft recommits the nation to the Universal Declaration of Human Rights (of which Iraq was one of the original signatories). While no legislation could directly contravene the principles of Islam, it is also clear that there could be no laws that violate basic human rights as spelled out in the Universal Declaration.
There is a wealth of Islamic jurisprudence spanning almost 14 centuries. And there is no reason why parts that may still be relevant and useful should not be taken into consideration in drafting modern laws.
One key concept of Islamic jurisprudence is maslehah, which roughly translates as "the common good." Any legislation that contravenes maslehah is regarded as "doubtful" (mashkuk) and cannot be applied. In any case, the last word on lawmaking will remain with an elected parliament and not (as is the case in neighboring Iran) with a group of self-appointed theocrats.
As far as laws relating to economic and trade matters are concerned, many of the doctrines that Islamic jurisprudence has developed over centuries have been quietly ditched in the past decades.
For example, Islamic jurisprudence bans both banking and insurance. But the Muslim world today is full of banks and insurance companies. Why? Because maslehah demands it. Charging interests is also banned in Islamic jurisprudence. In real life, however, interest is paid and received in every single Muslim country every day, albeit under a different label.
Even where Islamic jurisprudence is crystal clear, for example on taxes, not a single Muslim state today bases its fiscal policies on such traditions.
Some critics are concerned that giving Islam a prominent place in the constitution could lead to "reactionary legislation" on such issues as marriage and divorce and the status of women.
That concern, although understandable, may be exaggerated. Politically, all parties are agreed that women should retain their newly won quotas and thus maintain a strong presence in political life, especially in the parliament.
When it comes to issues of personal life, notably marriage, divorce and inheritance, traditional Islamic jurisprudence is slanted against women. But it is important to remember one fact: All issues of personal life in Islam are regarded as contractual matters, and thus could be handled in many different ways.
For example, marriage — seen as a sacrament in Christianity — is no more than a civil contract (aqd-e-nikah) in Islam. A woman can't abrogate the general right of polygamy for all men, but she can stipulate in her marriage contract that her future husband will not take any other wife. (Indeed, even traditional Islamic law is clear that no man may take an another wife without the willing consent of his first spouse.)
As for inheritances, while an individual cannot annul the Islamic rule in general, he is free to write a testament the way he likes — e.g., by leaving any portion of his property to his daughters.
On such issues of personal life, the best course is not to pit the state against religion, while making it clear that the state will not tolerate the unjust treatment of any citizen against his or her will.
THE Iraqi draft is not ideal. It won't turn Iraq into the Switzerland of the Mid dle East overnight. It includes articles that one could not accept without holding one's nose. But the fact remains that this is still the most democratic constitution offered to any Muslim nation so far.
And the people of Iraq have the chance to reject it if they feel it doesn't reflect their wishes. That, too, is a chance that few Muslim nations have enjoyed.
With the new constitution, Iraq is taking a giant leap away from despotism. Many had hoped that Iraq would take a bigger leap. But wishes, alas, are not horses, at least not in politics.
Iranian author Amir Taheri is a member of Benador Associates.
This author talks about how the consitution is stinky in places and still might fail. We lost 1900 troops for this?
Regardless whether this constitution passes or fails the essential problem is you have 3 ethnic groups and only 2 have bought into the process. The third is ready to go to the mattresses. How is this a positive outcome?
the author doesn't even seem to be hopeful of a positive conclusion. He's more informative and declarative - which is pretty weak.