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Tuesday, August 23, 2005
So much for democracy
So it seems Iraq has a draft constitution, and as part of that, the Shiite clerics got their wish that Iraqi law be based on Islamic law. In short that means they can enforce the Sharia law, meaning women lose the right to vote, have to wear burkas and can be stoned for not doing so. Its interesting to note that women obviously had more rights than this even under Saddam. Also you're close to the slippery slope of having overthrown the Taliban in Afganistan only to have the same tight Islamic doctrine take hold in Iraq. I have to assume that given that this consitution goes to referendum later in the year, that women will still have the option to vote at that point, and will wholeheartedly reject this consitution. But then where would that leave democracy in Iraq, and when will the US's military role be complete? If I was a Republican running for re-election in 2006 I think I'd be quaking in my boots around about now. Even W seems to be on course to become the most unpopular President in US history.
# posted 8/23/2005 08:11:00 PM |
9 comments
9 Comments:
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If I was a Republican running for re-election in 2006 I think I'd be quaking in my boots around about now.
Uh, why? The latest AP poll I saw put Bush's approval rating among Republicans at 90% and the Democratic disapproval at 80%. Meaning those to groups combined gives him a rating of 55%, which is more than the popular vote was in the 2004 election (51%).
So Republicans like him and Democrats hate him. Nothing new there.
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While your statistics are pretty much correct, duke, I think you're missing some of the other poll numbers. Between NBC, Zogby, NPR, Westhill Partners, CNN, ABC, Gallup, and IPSOS, questions were asked in reference to either a Democrat or Republican controlled congress in 2006. Every single one - EVERY ONE - showed a strong favoring (between 5 and 11 points) for the Democratic candidates; in some cases, even when the opposition candidates were as yet undeclared.
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Hmm. I'm going to have to disagree with you there Re: Women's rights.
A lot of the speculation has been made in the media without reading through the draft constitution at all.
Article 2.1(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.
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Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.
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Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
There's no means by which the operation of Article 2.1a can contradict b and c which would guarantee a woman's right to vote.
Speaking as a lawyer, that's about as watertight on the subject as you could ask a modern-day constitution to be. Albeit a seal which is achieved in a rather roundabout manner.
Finally, the kicker:
1st — The president of the republic and the Cabinet together, or one- fifth of the members of the Council of Representatives, can suggest amending the constitution.
2nd — The basic principles of the constitution mentioned in Chapter One of this constitution cannot be amended, except after two consecutive parliament cycles and based on the consent of two-thirds of the members of the Council of Representatives, a public referendum and the endorsement of the president of the republic within seven days.
In other words, the only way through this is a coup and tbh if that were to happen a Constitution isn't going to do you much good anyhow.
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No probs. It's hardly your fault - you can't realistically be expected to read an entire constitution (even one of these 20th Century concise jobs that every country is obsessed with) I only read it through because I was interested in the new jurisprudence they'll be adopting in Iraq (yeah, I'm a bit of a law geek with a penchant for constitutional law, which suits the profession I guess) - normally we expect experts to deliver their opinion on TV and in newspapers.
Unfortunately most expert analysis gets left behind in favour of posturing and sensationalization.
Heck even the Guardian, one of the only newspapers to include reference to the actual documentary content of the Draft Constitution didn't list all the relevant Articles and filled the rest of their space with speculation.
Oddly, only USA Today included the full text. Not a publication I'm terribly familiar with.
With any luck, Women's rights will be well protected by the legislature - the last thing you want is a legislature who's first bills need to be hauled in front of a constitutional court. Like any country with a formalized constitution Iraq (should the constitution be adopted) now has to deal with how to balance the power required to interpret it.
Keep up the great work with iComic :)
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Question for John, if you don't mind: I read that in another part of the Iraqi constitution, there is a section that makes mention of Sharia law being paramount. Now, Sharia law allows for things such as poor treatment of women. Am I correct in thinking that this point may possibly contradict Articles 14 and 16 (those you mentioned), or do I err?
Cheers!
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You refer to Article 1:
(sorry, no blockquote is allowed by the comments tab so this is going to be fat:)
+++============+++
1st — Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.
+++============+++
Basically, Article 1 pays lipservice to the concept of Shariah's primacy but in itself provides that any legislation passed (even law supposedly 'carrying out the will of Sharia') must protect the basic freedoms outlined in other articles (section (c)).
Legislation which would serve to limit in any way either the democratic rights of any person (as per article 1(b)) or alternately result in the treatment of one group of persons in a manner which is iniquitous (contravening their rights under Article 14, protected by Article 1(c)) would be considered unconstitutional.
This naturally would include matters such as woman's rights.
Thankfully the grounds by which Article 1 may be changed are slight and well protected.
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Hope that helps Fraize :)
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So bottom line is: any law that doesn't conflict with the three basic tenets: not against shariah, not against democracy, and not against the constitution are fair game?
When it's put like that, it seems pretty clear. So, I assume they have a legislative branch to handle the interpretation?
BTW, thanks for clearing this up. I love law, and the language it uses. This stuff is really fascinating to me.
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Well in most countries the interpretation of legislation is a task given to Judges, the extent of this power varies from country to country as do the tools which they are allowed to use (for instance, many countries oddly won't take into account the actual text of the debate which led to legislative action when attempting to divine the legislature's 'intentions' for the new law).
In Iraq, the codified constitution lends itself to a supreme constitutional court and one is provided for by the constitution:
+++ ========== +++
Article (90): 1st - The Supreme Federal Court is an independent judicial
body, financially and administratively, its work and its duties will be defined by
law.
2nd - The Supreme Federal Court will be made up of a number of judges and
experts in Sharia (Islamic Law) and law, whose number and manner of
selection will be defined by a law that should be passed by two-thirds of the
parliament members.
Article (91): The Supreme Federal Court will have the following duties:
1st - overseeing the constitutionality of federal laws before they are issued.
2nd - overseeing the constitutionality of the laws and standing regulations.
+++ ======= +++
There's more to their duties but it's largely matters of civil procedure and I don't want to bog you down. Anyhow, their duty will be akin to the Supreme Court of America's current purview.
Whilst arguably America's supreme court has evolved into a body wielding more power than George Washington and his buddies might have originally intended, the Iraqi body will enjoy the same supremacy over matters of constitutionality which the US Supreme Court currently holds from the word 'go' instead of assuming it over time.
There's an interesting study to be made into the growth of judicial power in developed countries over legislative and executive bodies. The constitutions of 'new' countries exemplify this. If Iraq had its constitution written a few hundred years ago, the powers offered to the judiciary in this constitution would probably be considered excessive, yet in todays climate they're very much the norm.
I may have waffled on a bit there and gotten into a discussion on Judicial Policy - sorry about that :) It's sort of a pet subject.
Hope that helps, the beginning bit at least, heh!
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