March 10, 2004,
A republic, if you can keep it." That's how the 81-year-old Ben Franklin responded to fellow citizens anxious to learn how they would govern themselves under the constitution adopted in Philadelphia in 1787.
Franklin's challenge now applies to the Iraqi people in the shape of a remarkably suitable interim constitution that combines the best of the American Bill of Rights, the British parliamentary system, and Canadian-style federalism, all in an imaginative and practical framework that respects the role of Islam and the realities of Iraqi history.
The basic purpose of the interim constitution is to set down agreed rules of the road for Iraqi self-governance during the period between the transfer of sovereignty on June 30 and the adoption of a permanent constitution by an elected 275-member national assembly in 2005. These procedures and structures are in turn buttressed by a remarkably liberal set of individual rights and minority protections, based on universally agreed standards, that are uniquely suited to Iraq's particular circumstances. "These rights are not the exclusive property of the West, but are universal values," says Adnan Pachachi, the octogenarian Sunni former foreign minister. "They should be followed in every time and place."
Each and every feature of the interim constitution was the subject of hard bargaining among the 25 members of Iraq's Governing Council representing Shiite Muslims (roughly 60 percent of the total population), Sunni Muslims (roughly 20 percent), ethnic Kurds (roughly 20 percent), as well as other religious and ethnic minorities. Each of these groups rightly fears the others, based on unhappy recent experience; and none trusts the others to exercise self-restraint in the absence of guaranteed structural protections and rights.
The end result is a fragile but genuinely Iraqi compromise that offers solid hope for a stable, democratic, and prosperous Iraq at peace within itself and with its neighbors. While it is by no means a guarantee of ultimate success, the interim constitution offers a fighting chance for Iraq to proceed to the next step without dissolving into anarchy or civil war.
By far the two most controversial elements of this grand bargain concern the proper role of religion and the state and the protection of ethnic, religious and political minorities from winner-take-all majoritarianism.
Shiite religious parties and their allies had sought to make Islam (however defined) the principal or even the sole basis for all legislation and likewise prohibit any law deemed contrary to Islam. This approach would constitutionalize some version of Islamic law or sharia (there are competing interpretations within both the Sunni and Shiite traditions) as the main or only touchstone for deciding public policy and claim for state the competence to determine and enforce religious truth. It would also set unacceptably narrow and unworkable parameters for democratic discourse by ruling out whole categories of issues and arguments as "un-Islamic." A spokesman for the principal Islamist party, SCIRI (Supreme Council for the Islamic Revolution in Iraq) summed up how this approach would work in practice: "To say that Islam should be the main source of legislation does not negate the fact that other sources will have to be used but only in a way that they do not violate the Islamic codes (i.e., sharia)."
The GC instead adopted this careful compromise in article 7 of the interim constitution:
Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice.
This novel and imaginative formulation rightly puts "the principles of democracy" and Iraq's bill of rights on a par with "the universally agreed tenets of Islam" a far more expansive and generous set of values than those confined to any legal system, including sharia. At a minimum, these values include solidarity, equality and open-handed generosity (all of which the author experienced while living and working in the Arab world). And the careful balance established in article 7 goes a long way toward avoiding the political misuse of religion that the authors of U.N.'s Arab Human Development Reports rightly deplore.
"We're happy with the wording," says Entifadh Qanbar, a senior aide to GC member Ahmed Chalabi, a Shiite increasingly allied with the Shiite religious parties. "We got what we wanted, which is that there should be no laws against Islam." Another of the principal drafters, Adnan Pachachi's chief aide Faisal Istrabi, agreed: "No one has any intention of insulting Islam. Many of us who are deeply devout, but are [also] liberal, are very pleased with the agreement we have worked out with our brethren."
The other fraught issue federalism goes to the heart of the structural limitations necessary for the success of any properly constitutional and therefore limited state. The relevant limitations govern three sets of relationships: between the citizen and the state (individual rights); within the state itself (separation of powers and checks and balances); and between the center and the regions (federalism).
Federalism poses in the most acute form the most pressing issue that Free Iraq faces: Will Iraq's overwhelming Shiite majority accept structural restraints in the form of guaranteed protections for others? Or does the majority see its demographic predominance as a mandate to exercise a monopoly of political power? Does a 60-percent majority translate into 100 percent of the political pie?
These questions underlie the dispute over minority rights that broke out after the GC had unanimously approved the interim constitution on March 2. At issue are the provisions for amending the interim constitution itself (a three-fourths legislative majority and unanimous consent of three-man presidency council, which in turn will likely include at least one non-Shiite); and the approval requirements for the permanent constitution (subject to a de facto Kurdish veto by a negative two-thirds vote in any three of Iraq's 18 provinces, notwithstanding a simple majority nationwide).
The Kurds in particular regard these agreed safeguards as the sine qua non for their own protection and participation in Free Iraq. But the issue of minority rights is by no means a solely Kurdish issue. "The majority must not be allowed to usurp the rights of others," says Naseer Kamel al-Chaderchi of the Sunni National Democratic party. Indeed, it is above all on the basis of these protections that another Sunni GC member Sheikh Ghazi al-Yawer recommends that his constituents accept the interim constitution: "They are sensible and see what is in their best interests." As U.S proconsul Jerry Bremer rightly puts it, "the fundamental issue is the protection of minority rights, whether they're Kurds or Shiites or Sunnis or someone who's on the wrong end of a vote." In Iraq's unhappy history, someone on the wrong end of a vote was likely to end up at the short end of a rope. That's what these vital safeguards are designed to prevent.
These minority protections, which were agreed to unanimously as part of a package deal, are now the subject of second thoughts on the part of Shiite religious parties. How far their belated objections represent political posturing and face-saving atmospherics remains to be seen. Much depends on whether Shiite leaders elect to prepare their followers to accept less than a monopoly of political power in the new Iraq.
"A republic, if you can keep it." That's the hope embodied by Iraq's fragile new political dispensation. And it calls to mind Seamus Heaney's timely reflections on a very similar challenge:
History says, 'Don't hope On this side of the grave.' But then, once in a lifetime The longed-for tidal wave Of justice can rise up, And hope and history rhyme.
EXTRA: Click here for Freedom House's preliminary analysis of the Iraqi bill of rights.
John F. Cullinan formerly served as a senior foreign-policy adviser to the U.S. Catholic bishops. His responsibilities included the peace process in Northern Ireland.