Wednesday, July 27, 2005

Constitutions - are they worth the paper they are written on?

Matthias rung mailed again. He's posted about the constitution, and finds it suspicious. So do I. Does the constitution protect bloggers from being arrested?

And more importantly - how to hold a constitution accountable. Afterall, the US and UK have constitutions, but their governments still send their own citizens offshore to outsourced interrogation centres, and they still run Abu Ghraib in an uncouth manner unbecoming the nuances of civil aesthetism.

The whole thing sounds like a rush job to me.

10 Comments

#7/28/2005 10:47:00 am Assalam Aleikom Blogger richsanter

emigre, the UK doesnt have a written constitution like the US and like iraq is forming now. do your homework, whore. im sick of you saying bizarre jackass things about western society when you have no clue what you're talking about. go screw a camel.

 
#7/29/2005 04:09:00 am Assalam Aleikom Blogger emigre

Dear richsanter,

A salient point. No less because Australia (military antagonist albeit with minor troop contribution) doesn't even have a bill of human rights.

Isn't it odd how all these countries with half-baked constitutions (or none at all) and falling apart ideologies are so keen to liberate foreign places with lots of crude oil.

Thank you for bringing this to our attention, again.

As soon as the imediasphere achieves global peace we will look into a treatment for that tourettes ailment, Coprolalia, which you have suffered so valiantly and without complaint, for so long, from.

 
#7/29/2005 08:31:00 pm Assalam Aleikom Blogger Mad Canuck

Hi emigre,

If you haven't already, you may want to read the full text of the actual constitution draft. To me, it seems a lot of the concerns some people have around it are overstated.

I read through the full text I saw in detail, and wrote a post earlier this week on my blog about it as well. I was actually quite surprised at how good this draft looks. For the most part, it seems to be well balanced and to provide a lot of protections: (equal rights for all, freedom of speech, property ownership rights, etc.) and stipulates an independent judiciary (which is the real safeguard).

As I mentioned in my blog, I hope Iraq doesn't learn the same lesson we learned the hard way in Canada ten years ago about how much discord you can produce by voting "no" on a constitution over one or two sticking points. A constitution doesn't have to be perfect, it just has to meet the basic needs of all parties. If you refuse to compromise and try to haggle until it's perfect, you'll never reach agreement on it. Personally, I think this draft Iraqi constitution looks very good.

 
#8/01/2005 02:56:00 am Assalam Aleikom Blogger emigre

Mad Canuck

It might sound ok to you, but you seem to be a man.

Read this article.

According to this draft, the new Iraqi transitional government acknowledges the equal rights of men and women in all fields -- ”as long as it doesn't contradict with sharia law.”

If implemented, the proposed new laws will restrict women's rights, specifically in matters relating to marriage, divorce and family inheritance.


Hardly an overstated concern.

There is no point rushing through a constitution just to make certain administrations "look good in a hurry".

If a constitution is supposed to be "worth the paper it's written on" it needs to protect the civil liberties of all citizens, not just half the population.

 
#8/02/2005 07:52:00 am Assalam Aleikom Blogger Mad Canuck

Hi emigre,

To answer your question, yes I am a man, but I am a firm believer in equal rights for women.

I know there have been some articles that disagree with me on this, but I stand by my opinion that this draft constitution looks good. My opinion is not based on any article I've read, it's based on me reading the draft myself and comparing it with other countries' constitutions. Ironically, one of the things I really liked about this draft is the statement that "all Iraqis are equal before the law regardless of gender".

Fayrouz had questioned me about what I wrote on this a few days ago (for similar reasons as you), and I wrote a detailed reply explaining why I interpreted this draft the way I did. Here is a link to my reply to Fayrouz if you are interested.

The constitution does not need to be perfect, just "good enough". Iraq needs a constitution in place to move forward from the chaos it is in now. And, in any case, there will always be room to amend the constitution later if there are some things that still need fixing when it's first passed.

 
#8/02/2005 06:59:00 pm Assalam Aleikom Blogger emigre

Hi Mad Canuck

I'm backing Fayrouz on this one "it stinks".

A constitution does need to be perfect. It is a document which is supposed to protect the civil liberties of hundreds of thousands of people for perhaps hundreds of years to come. Or are you proposing people in Iraq are second rate citizens who do not deserve perfection?

The draft as it is now, is a rush job. Administrative investors in (western and perhaps other) armies want to get out of Iraq ASAP while waving a facesaving piece of "liberational" legislature to prove "everything is all better now". Like fun it is.

Do foreign administrators pushing for this hurried draft care about women? No, they do not. They only care about reaching agreement as soon as they can with men who they will be brokering deals with later on.

The portion you quote on protection for women is dangerous;

A). Because it is disguised with benign phrasing like "equality with men" and then promptly cancelled out by the fine print "in accordance to...".

B). Because it is shrouded in indistinct language; "The state protects the basic rights of women".

Basic? What is "basic"? Food, water and shelter? The constitution may as well state women shall be protected as dogs might.

It reminds me of Ukrainian folklore ~ The constitution for pigs (in which a pig fares better then a man manacled by the gendarme).

Don't even get me stated on the rest, say for example, “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.”

Is anyone outside of these ethnicities not equal in rights and duties? It sounds like a recipe for locking Iraq into ethno-centric isolation from the rest of the world. Surely odd in our so-called “global” age.

Defining a community and rights to civil protection by ethnicity, would be outrageous if say, for example, Australia proposed constitutionally (that it already does to some extent is something some people are working to change) to define some members of it’s population worthy of protection by belonging to various European extractions.

I could go on and on, and on.

Changing a constitution, once it is passed, is by design a notoriously long drawn out process made so to discourage meddling with citizens rights and amendments are not always approved. Getting the draft right in the first place would save a lot of strife further down the track.

I thank you for posing an alternative view that I can happily launch into debate on.

 
#8/03/2005 07:29:00 am Assalam Aleikom Blogger Mad Canuck

Hi emigre,

A cordial debate is always enjoyable, especially over an interesting issue like this one.

A constitution does need to be perfect.

When you have different groups with differing interests, what is perfect for one group is flawed to another group Compromise is the process where each group allows the situation to ease off their respective view of perfection in order to accomodate the other group.

When this constitution is agreed on, it is likely that nobody will consider it perfect (that is the nature of compromise). What is important is that it is good enough to meet the basic needs of all.

The draft as it is now, is a rush job.

Indeed it is. The fact they were able to create a draft of this quality in this short a timeframe is a testament to the work ethic of those involved.

Regarding the protection of women, I agree that #6 is a bit vague, but you should also look at paragraph #1 in the bill of rights. That paragraph states quite clearly that all Iraqis are equal under the law regardless of gender. There is no "benign phrasing" or "indistinct language" in that paragraph.

And, as I mentioned on my blog, regarding the paragraph #3 (talking about ethnicity), the intent of this paragraph does not seem to be to exclude people from being considered Iraqi. Rather, it seems to be there to prevent someone from arguing they are not Iraqi (e.g.: a man arguing that he does not have to pay taxes because he is Kurdish (or some other ethnic group) and not Iraqi, etc.). With what is going on in Iraq now, this latter scenario seems much more likely on the short-term than trying to exclude someone, and this does seem the likely reason behind this paragraph.

 
#8/03/2005 03:50:00 pm Assalam Aleikom Blogger emigre

Hello

Cordial, yes. An interesting issue? Well, one holding many people's lives, present and future, in the balance. And we are interested in lives.

“What is important is that it is good enough to meet the basic needs of all.”

And clearly, this constitution does not.

A constitution is supposed to prevent citizen’s rights from being compromised. A compromised constitution is a weak one, ineffectual. Of no use. And this draft compromises both women and “ethnicity”. Should women be compromised? No. Women should never be compromised. Any man who respects his counterparts would agree. Should constitutional protection and duty be defined by genetics? Only a despot with ethnic cleansing on his mind would agree there.

Paragraph #1 in the bill of rights might sound ok to you, but paragraph #6 in the constitution annuls it. To protect citizens effectively a constitution and bill of rights must work as a whole, rather then be full of holes and in contradiction.

As per paragraph #3, yes, as you point out, as well as potentially locking Iraq into an imposed ethno-centric definition “it seems to be there to prevent someone from arguing they are not Iraqi”. And therefore not bound by Iraq’s would be constitutional duties. Bearing in mind the ethnicities listed in the draft, there are some conspicuous absences. This constitution needs a definition that ensures anyone within Iraq’s borders, regardless of ethnicity, upholds and is protected by constitutional obligations. Especially with so many “contractors” running around the place (likely to remain after official armies withdraw) and bound neither by Geneva’s convention nor anybody else’s it seems. A constitution that holds all people within it’s borders accountable is the only bloodless way to end the torture cycle, end war, and shut down Abu Ghraib. Because certain parties don’t seem to be following any other constitutional brief while taking prisoners.

To be effective a constitution does need to be and can be, perfect. That is what people go to law school for years to learn how to do. If a diarist can pick out faults at a glance then the constitution writing team has a lot more work ahead of it. And that is as it should be – what is it that failing imperialist armies like to cite? “Rome was not built in a day.”

 
#8/04/2005 04:04:00 am Assalam Aleikom Blogger Mad Canuck

Hi emigre,

Paragraph #1 in the bill of rights might sound ok to you, but paragraph #6 in the constitution annuls it.

I agree that these two paragraphs do overlap, and are not consistent with each other. However, I would suggest #1 is the one that trumps #6, for the simple reason that #6 is vague, and #1 is very clear in its wording.

Bearing in mind the ethnicities listed in the draft, there are some conspicuous absences.

I suspect there may be some cleanup coming on that paragraph. Adding the words "among others" to the end would probably help. Perhaps a better fix (and one which would still address the same issue) would be specifying that anyone born within the borders of Iraq regardless of ethnicity is an Iraqi citizen.

I agree this paragraph could use some work, but I think the intent of it is benign, and I don't think it is a major showstopper.

This constitution needs a definition that ensures anyone within Iraq’s borders, regardless of ethnicity, upholds and is protected by constitutional obligations. Especially with so many “contractors” running around the place (likely to remain after official armies withdraw) and bound neither by Geneva’s convention nor anybody else’s it seems.

Regulating "contractors" and other foreigners within Iraq's borders is not the job of the constitution, it is the job of the laws that are built on top of the constitution. In Canada, the USA, Australia, Britain, etc., crimes like murder, assault, and robbery are part of the criminal code, not the constitution.

The constitution's job is to say what you can do, and what the government can't take away from you. The criminal code's job is to say what you can't do.

The criminal code should be one of the first orders of business after getting the constitution settled, and then this can be applied to regulate "security contractors" along with anyone else. Getting to these next steps of stabilization (criminal code, etc.) is one of the reasons I think it is in Iraq's best interest to get this constitution passed soon.

To be effective a constitution does need to be and can be, perfect. That is what people go to law school for years to learn how to do.

If this were true, we would not have an appeals court, since all our laws would be perfectly written. In actuality, even people who have spent years in law school and even more years in legal practice do not produce perfect legal documents.

In any case, what you may view as perfect, someone with a differing opinion may consider flawed. It is through the process of negotiation and compromise that a document is produced that is perfect for nobody, but acceptable for most of the parties involved. "Most" is a key concept here - there are some extreme-minded people who you will never please - but, if people are willing to compromise, disagreeing parties can find common ground in the middle.

In summary, I do agree this constitution isn't perfect: there are overlapping paragraphs (#1 and #6), paragraphs that could be better worded (#3), and one or two that shouldn't be there at all (#2). But, while it is not perfect, I do think it is a good start, and if the final version looked like this, I would say it was acceptable. Not perfect, and not ideal, but acceptable. Hopefully the next draft will look even better and will have some of these inconsistencies cleaned up.

 
#8/04/2005 04:57:00 pm Assalam Aleikom Blogger emigre

Mad Canuck, hello again,

Now we are getting somewhere. We agree that paragraphs #1 and #6 are inconsistent and that paragraph #3 needs work.

“these two paragraphs (#1 and #6) do overlap, and are not consistent with each other. However, I would suggest #1 is the one that trumps #6, for the simple reason that #6 is vague, and #1 is very clear in its wording.”

Inconsistencies can swing either way. Relying on the “suggestion” that one paragraph might trump another is speculative, unacceptable in law, and does not remove the very real possibility that paragraph #6 can clearly be used to annul paragraph #1 if a despot puts his mind to it. Inconsistency of any sort is unacceptable in a document that is supposed to protect citizens.

“Regulating "contractors" and other foreigners within Iraq's borders is not the job of the constitution, it is the job of the laws that are built on top of the constitution. In Canada, the USA, Australia, Britain, etc”

Theoretically that is how the world has operated up until now, or at least it believed it operated that way. However, it has become patently clear that military and non-military contractors do not follow any conceivable guide to respecting human or constitutional rights when they are in another country. For this reason, I suggest that the writers of this draft take the “revolutionary” opportunity to protect their citizens by considering a “when in Rome” clause. It need only bind "visitors" to appropriate paragraphs in the bill of rights. I suspect such a clause may have a flow on effect in that visitors may become a lot more conscious of what people in other places go through, and may by default demand accountability not only in their own countries, but in those of their neighbors, who they might visit and be “constitutionally” engaged with. I think there is merit in this concept that could work on a larger scale in other countries too. Including western ones.

“even people who have spent years in law school and even more years in legal practice do not produce perfect legal documents”

Agreed, and this is precisely why careful scrutiny of constitutional documents is necessary.

A constitution is intended to, and ought to, be perfect. If a lawyer is aiming for anything less, then that lawyers motives are highly questionable.

Once passed a constitution is incredibly difficult to modify – pointing out again that this is by design, so that certain nefarious interests cannot easily rewrite it. Getting a constitution right before it is passed is crucial. If people cannot agree on it, it is simply not up to scratch. If dissent is not a benchmark, what is.

” Hopefully the next draft will look even better and will have some of these inconsistencies cleaned up”

Indeed. And hopefully there will be people to make sure no new inconsistencies are introduced !

 

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