1. Part 1
2. Fundamental Law—MacLean just doesn't get it
3. Iraq and the Law—Once More into the Breach

Most notably, this involves the role of Islam. Your humble correspondent notes that most constitutions in the Muslim world include some such clause:

• Iraq, 1925: Art. 13. Islam is the official religion of the State. Freedom to practise the rites; of the different sects of that religion, as observed in Iraq, is guaranteed. Complete... freedom to practise the various forms of worship, in conformity with accepted customs, is guaranteed to all inhabitants of the country provided that such forms of worship do not conflict with the maintenance of order and discipline or public morality. (The 1990 constitution says merely, in Article 4, "Islam is the religion of the state."—JRM)
• Syria, 1973 Article 3: (1) The religion of the President of the Republic has to be Islam.
  (2) Islamic jurisprudence is a main source of legislation.
• Yemen, 1994 Article 2 Islam is the religion of the state, and Arabic is its official language.
  Article 3 Islamic Shari'ah is the source of all legislation. (The text is identical in the 1991 constitution—JRM)
• Qatar, 2003 Article 1: Qatar is an independent sovereign Arab State. Its religion is Islam and Shari'a law shall be a main source of its legislations. Its political system is democratic. (Qatar is a monarchy—JRM)

Article 1 Afghanistan is an Islamic Republic, independent, unitary and indivisible state. Article 2 (1) The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam. (2) Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law. Article 3: In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam

• Article 2: Islam is the sacred religion of Afghanistan. Religious rites performed by the state shall be according to the provisions of the Hanafi doctrine. Non-Muslim citizens shall be free to perform their rituals within the limits determined by laws for public decency and public peace.

(Riverbend hasn't actually posted on the Fundamental Law yet.)

Today Just World News weighs in again; in retrospect, her response is rather what I would have expected: it's not really terribly awful, except for federalism (in my experience, federalism is an unpopular idea with Britons). Even there, the constitution is not as bad as she feared; Chapter 3, 25(e) ensures that:

Managing the natural resources of Iraq, which belongs to all the people of all the regions and governorates of Iraq, in consultation with the governments of the regions and the administrations of the governorates, and distributing the revenues resulting from their sale through the national budget in an equitable manner proportional to the distribution of population throughout the country, and with due regard for areas that were unjustly deprived of these revenues by the previous regime, for dealing with their situations in a positive way, for their needs, and for the degree of development of the different areas of the country

Prof. Cole and his wife, Shahin Malik Cole, published an article on the new basic law which doesn't have anything specific to say. As I attempted to demonstrate, the constitutional provisions favoring Islam are countered more firmly by guaranteed rights than is the case in other constitutions in the region. Prof. Cole linked to Houzan Mahmud's article in the Guardian, which says nothing about the fundamental law and complains intead that the IGC is bad because it includes clergy and Kurdish nationalists. Her real grievance is that the IGC is appointed, which certainly is valid, and slanted towards the conservative members of her country, which must be frustrating after the period 1968-1979 when Iraq used its immense oil wealth to create a social welfare state. But that phase was possible because of historic highs in the price of petroleum plus an absolute dictatorship. If the US were under foreign occupation and the occupation force appointed George W Bush, I can understand hating the occupiers—how can they think we the people of the USA are such reactionary clods? But the opposition to the IGC is chiefly from the right, and the Fundamental Law is not a reactionary document.

I say this not out of affection for the Bush Administration or approval of what is being done in Iraq, but because I hope my readers expect more of me than a knee-jerk response. In this case, I cannot find any explicit evidence of a scam, not in the constitution; and the criticism of it is really directed against the conduct of the CPA instead. As mentioned earlier, the constitution empowers the regions to elect governors and initiate projects, but there isn't anything like the US Constitution's 10th Amendment ("states's rights"). Juan Cole—actually, the Government of Turkey—found something specific to object to in the relative autonomy the Kurds are to enjoy; but I'm not sure that's such a compelling argument. Perhaps I'm wrong, but after independence many of the African countries were or became unitary states. Their components were generally very weak anyway, in favor of the center. At once political parties took on an ethnic character. If Iraqi Kurds live in semi-autonomous regions they will probably develop multipolar politics—no, wait, since the Iraqi Kurds live in a semi-autonomous region, they have developed multipolar politics. Unfortunately, during the period 1991 and 2003 that meant warfare, but since shortly before the Invasion, that has been confined to a simmering battle between the PUK and Ansar al-Islam.

NOTE: * Error corrected Thursday: it was the Hague Convention, not the Geneva Convention that prohibits these modifications.

UPDATE: Juan Cole does post something specific that is wrong with the Fundamental Law and I must agree with him:

Informed Comment: Roger Myerson, a professor of economics at the University of Chicago, shared with me the following on the Interim Constitution, and has kindly consented to my reprinting it here:

Article 55 . . .may be a key to the evolution of power in Iraq. This article specifies that any group that has taken control of a Governate Council before 1 July 2004 under the CPA can retain control "until free, direct, and full elections, conducted pursuant to the law, are held." There is no indication of when such Governate elections may occur. [...] As I read it, the suggestion is that local elections may not be generally required until a final constitution is approved. Article 56 also promises that these Governate councils will get a significant role in administering the country.

So if an aspiring national leader can develop a factional network that has widespread control of Governate councils (established without elections under the CPA), then that leader may be able to control local elections to the National Assembly in these Governates and may dominate the national political process thereafter

(emphasis mine—JRM)

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Ms. Cobbam has responded here. Please observe I overestimated her objection to federalism. As near as I can adduce, what she believes is required is the imprimatur of the UN. Logically, this puts me in an awkward position:

I was opposed to the war because it was based on a long menu of spurious motives. I was not making my support contingent upon UN SC approval, which I doubted would come, and which I thought was not justified if it were given.

But those who did had this argument: that a UN SC vote in favor of ousting Saddam Hussein would be a minimal requirement of legitimacy because the Coalition was invading on the basis of UN SCR 1441 and other resolutions. That failing, there was no figleaf at all, unless one adopts the extreme philosophical position that a state with the power to do so should use military might to enforce maximalist outcomes. Translated out of econo-speak, the maximalist doctrine holds that some entity, usually a "vanguard dictatorship" should dictate outcomes which are ideal rather than respect process or patience; usually it is based on leftist appeals since conservatives tend to disapprove of liquidating social relations in order to get some idealized outcome.

An example of maximalist thinking may be seen in Richard Perle and David Frum's book, The End of Evil (NYT Review):

"There is no middle way for Americans," they write in the opening chapter. "It is victory or holocaust. This book is a manual for victory." Discussing rulers like Fidel Castro and Ayatollah Ali Khamenei, they declare that "when it is in our power and our interest, we should toss dictators aside with no more compunction than a police sharpshooter feels when he downs a hostage-taker." Of the United Nations, another one of their nemeses, they write, "The U.N. regularly broadcasts a spectacle as dishonest and morally deadening as a Stalinist show trial, a televised ritual of condemnation that inflames hatreds and sustains quarrels that might otherwise fade away." Mr. Perle and Mr. Frum argue that America "should force European governments to choose between Paris and Washington," and they assert that Iran is "the world's least trustworthy regime," ominously adding, "The regime must go." (Emphasis added#8212;JRM)

To top it off, Frum and Perle propose to decree an end to evil—an abolition of sovereignty, everywhere, is a small price to pay.

HELENA (ex commentia): Firstly, unlike many of my friends, I don't think that a military occupation is in itself illegal. Many things that an occupying power may do are illegal under the Hague and Geneva Conventions; but an occupation in itself is not illegal. It happens. If it happens as a result of an illegitimate war, that may taint the way it is viewed, certainly.

So a governing council that is appointed by an occupying power is not in itself illegal (though things that it does may, as above, be illegal.) Illegal, however, is different from "illegitimate", which in this context is mainly a political judgment, deriving principally from the way this or any other body is viewed by the people of the occupying country.

I agree with you that a framework for the transition to a legitimate indigenous government is needed ASAP. But this framework itself can be viewed as legitimate or illegitimate—both by the Iraqis themselves and by the UN. For example, most Iraqis (and most outsiders, myself included) considered the framework for transition crafted last November to be quite illegitimate [QV this post—JRM].

Luckily, for now, both the UN and apparently most of the Iraqi people seem to agree on what constitutes the "legitimacy" of a government and the legitimacy of the framework for getting there. This is more or less the Lockean view that to be legitimate a government must have the consent of the governed. Brahimi's view (and my own) is that getting this process of discerning the will of the people re their government right is better than doing a hasty, botched job.

I have noted before (hit "Namibia" in the JWN Search box) that the UN has actually faced very similar problems before— in both Namibia and East Timor. In both those cases there was a foreign power ruling over a territory in a situation where its right to do so indefinitely was contested both by the indigenes and by a clear majority of the other governments of the world; and where the indigenous constitutional structures themselves did not exist and had to be created from the ground up. (At least in Iraq there are some constitutional precedents to draw on.)

In both those other cases, the occupying power came to see that it needed the symbolic legitimacy that the UN can confer (as well as the UN's undoubted expertise in organizing elections in difficult places) in order to midwife the process of transition from their own rule to democratic indigenous rule. Who else could do it? If the occupying power were to organize the elections itself, any losers would immediately claim that the winners were mere Quislings... You need, if you like, a neutral external "referee" for the process.

I certainly know that in E. Timor, the aftermath of the elections was horrendous for the Timoreans because of massive Indonesian non-compliance, the local Indonesian commanders' organizing of terror mobs, etc etc. But still, the fact that Fretilin had indubitably won in that election (which was a referendum on independence vs. a limited "autonomy", as I recall), and that that poll had been organized by the UN, gave Fretilin the unassailable right to request the assistance of the UN and of its member states in order to oust the Indonesians from the territory. Which the UN—led in that case by Australia— did through a lot of diplomatic arm-twisting and some threat of force but not the actual use of force...

And yes, in both those previous, successful cases of the UN organizing a transition from foreign military rule to indigenous democracy, the approach the UN used was to build up the different levels of consensus among the potential voters slowly, one step at a time. NOT to come right on in with its own formulas for federalism or anything else.

I'm assuming here—and this is not necessarily a valid assumption—that the USG would actually like this transition to indigenous democratic rule to work and to result in the creation of a stable Iraqi administration that effectively protects and represents the interests of (all the different segments of) the Iraqi people. One could easily think of reasons why this might NOT be the preferred outcome of some of the Bush [Administration].

JRM: As you can see, Readers, this is the sort of response I needed. I feel fortified by it because, you see, while Ms. Cobbam and Prof. Cole represent a section of public opinion I trust (especially in terms of expertise) I didn't really understand what they were getting at. Over the long term, she's correct that the UN imprimatur does give a lot of violence-deterring legitimacy to the new state.

We at HC strongly suspect that a stable administration that effectively protects and represents the interests of the people is not the compelling motive in the WH. On the contrary, the fundamental ideology animating the above-mentioned Richard Perle and David Frum was a maximalist denial of sovereignty to a hell of a lot of people. Ironically, I believe it is here that the term "evil" applies: a global dispensation in which only the true believers are held in any regard.

People who believe I'm blinded by a tinfoil hat are earnestly invited to leave comments.

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I feel a little silly stalking one writer like this, and I hope readers will feel I've added something valuable to my analysis. I just read this article in Salon (registration barrier). It's really the best thing I've read anywhere on the subject, and it's such an important matter because this is the test of fire for my allegation that the invasion of Iraq was an imperial venture. I hope I'm wrong, although it'll be humiliating if I am because I'm the only one who actually suspects any such thing. (Dear Readers, that was so sarcastic thunder rumbled outside. I won't be able to do that in Seattle because it might rain if I do, and then Washingtonians will be angry with me!). Prof. Cole's essay in Salon is, in my opinion, so excellent because he actually addresses the proximate causes and rejected options that our leaders faced in Iraq. To me this is very important: to address the question, what else could have been done?

Shiite cleric Abdul Aziz al-Hakim and a member of the Interim Governing Council scheduled a vote at the interim council on the issue of personal status law. Al-Hakim wanted to abolish the 1959 civil code that governs marriage, divorce, inheritance and other such issues and go back to religious law. He held the vote when two women members of the IGC were absent, and it passed 11 to 10.

The new law was highly controversial, especially among women. Most Muslim clerics interpret Islamic personal status law in ways that make women unequal to men. In Iran, a woman receives only half the inheritance that her brother does. Her testimony in court is worth half that of a man (making it impossible for her to convict her own rapist if she has no witnesses). She is not owed alimony on being divorced. A man can take up to four wives, and, in Shiite Islam, can have temporary wives with whom he signs a contract. Women's groups took to the streets in protest, and the only female minister appointed by the IGC, Nasrin Barwari, joined the demonstrations.

In mid-February, the Kurdish regional government presented a blueprint to Baghdad that laid out its aspirations. They want a provincial national guard, which will absorb the Kurdish guerrillas or peshmergas. They declaim, "Except for the Iraqi Kurdistan National Guard ... the Armed Forces of Iraq shall not enter the territory of the Kurdistan Region without the consent of the Kurdistan National Assembly." The latter is not a demand to which any sovereign government could accede, but the Kurds harbor deep bitterness about the history of Baghdad's military interventions in their territory.

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NOTE: * The reason for this is that we can safely assume the Shi'a would have the majority party and they would choose the president. But suppose there are only three candidates, a Shi'a Arab (A_ﺵ), a Sunni Arab (A_ﻄ), and a Sunni Kurd(K_ﻄ). Well, aside from the fact that there will always be two Kurdish candidates, the ruling party would get nothing from being the ruling party—the A_ﻄ and K_ﻄ candidates would have to be chosen regardless. Because of this, there is no reason to imagine the A_ﻄ, K_ﻄ, and A_ﺵ EXECO members could agree on a fourth person whom they really trusted. So let us suppose there is only one A_ﺵ candidate who has a chance, since the majority A_ﺵ party can cut deals with the minority A_ﺵ parties to get sole choice of the president; then there needs to be two each A_ﻄ and K_ﻄ presidential candidates, so that the A_ﺵ party can contrive somehow to get the more harmonious one of each. If this is not possible—gridlock!

Assuming this is so, the A_ﺵ must ensure their own man gets only 22% of the vote. Then #2 gets 21%, #3 gets 20%, and the losers have 37% of the vote among themselves. Any vote above 22% for the winner is, from A_ﺵ's point of view, a total waste since A_ﺵ's share in the parliament minus the vote for #1 is votes available to affect the elections of #2 and #3. In fact, if I were the head of A_ﺵ, I would aim for the vice presidency so that I could use that extra 2% to lock in #1 and #2 even if these were really pliant Sunnis. Number 4 and #5 would grumble that #1 and #2 were my puppets, but what do they know?

In fact, this sort of mini-max thinking would probably require some espionage lest my planned #5 takes a dive on behalf of #4, causing him to win 23%. I might have to bribe #5's party with the promise of a guaranteed seat on the cabinet.