Kim Lane Scheppele on the Dangers of Rushing the Iraqi Constitution

A transfer of sovereignty to a functioning Iraqi government is a prerequisite to an orderly US departure.

The official US policy is that the Iraqi constitution must be drafted before the US can transfer sovereignty back to the Iraqis:

Bush administration officials contend that if they transfer sovereignty before a constitution is drafted and a democratically elected government is seated, the interim political authority could prolong or subvert the process. “If a constitution has to be drafted before there can be a government, you bet we’ll get a constitution.”

Indeed, The US has a lot riding on getting the Iraqis to draft a new constitution quickly. So long as there is no Constitution, and no interim government either, bodies such as the IMF may not recognize the local authorities as a government to which they can give funds. And, so long as the US (or, if you prefer, the “coalition”) remains an occupying power, it has various obligations arising from International law.

Last week Colin Powell optimistically suggested the constitutional drafting might be completed within six months. That idea seems unlikely to survive its encounter with the reality of an Iraqi political scene that is divided and fractious.

Kim Lane Scheppele, Professor of Law and Sociology at the University of Pennsylvania, an expert in comparative constitutional law, is worried about the rush to design an Iraqi constitution, and she's graciously allowed me to reproduce a listserv contribution of hers on the subject:

having observed some constitutional drafting processes at close range and participated in a couple, it seems to me that it's important to start with the history of the place and the specifics of the culture and legal system. Toward that end, I've found the following sources helpful.

The Public International Law and Policy Group and the Century Foundation has produced a sobering report on the major issues involved in drafting a constitution for Iraq. The report can be found at:

http://www.tcf.org/Publications/iraq_report.pdf

The Iraqi constitution of 1990:

http://www.oefre.unibe.ch/law/icl/iz00t___.html

And the Iraqi constitution of 1925 can be found at:

http://www.geocities.com/dagtho/ iraqiconst19250321.html

(For those interested in constitutional borrowing, the 1925 Constitution begins, “We, the King …”

What seems to me most troubling about a future Iraqi constitution is that the country is a cobbled together collection of people and places without a common sense of history or (as far as I can tell) a common sense of the future. Iraq's own brief constitutional history (seen in the documents above) is not particularly promising as a place to start. By contrast, the Afghan constitution started with far more inspiring raw materials — in particular, a 1964 constitution that was a perfectly respectable modern constitution that actually functioned for nearly a decade. As a result, when the war ended in Afghanistan, the 1964 constitution could be restored and used as a starting point for the new drafters. Just where one starts to get a grip on constitutional issues in Iraq will be much harder because there is no such prior text that could provide a point of common reference if the drafting process produces deadlocks. This is one tough place to write a constitution.

Nation-building is hard work. Isn't it good that we have an Administration so fully committed to the project?

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