'Constitution' unveiled by occupier allies

Mike Macnair takes a detailed look at the proposed constitution for Iraq, which exposes as utterly false and self-deluding the ideas of the Alliance for Workers' Liberty and the pro-war left that the occupiers are in the midst of creating democracy in the Middle East, or that the workers' movement in Iraq is developing under the protection of the occupying troops

Sunday August 28 in Baghdad's green zone the majority of the 'drafting committee' finally presented a draft Iraqi constitution to the 'constitutional assembly' elected on January 29-30. Negotiations to complete this draft were characterised by brinkmanship. After a series of delays beyond the deadline mandated by the 'transitional administrative law' setting up the whole process, the majority bloc of Kurdish nationalist and shia islamist parties has decided on a new piece of brinkmanship. The 'constitutional assembly' did not vote on the draft, but it will nonetheless be presented for a vote in a national referendum on October 15. My apologies for the number of scare quote marks in this article. The problem is that there is so much fakery and spin in both the ostensible arrangements created by the occupiers, and in media coverage of Iraqi politics, that almost everything needs to be marked in this way. Within the 'law' the 'constitution' cannot be brought into effect if there are two-thirds majorities against it in three provinces. Religious leaders in the 'sunni' provinces are already calling on their congregations to register to vote (and to vote 'no'). In addition, Iraqi nationalist shia radical cleric Muqtada Sadr has resurfaced from a period of relative silence to denounce the draft, calling mass demonstrations in several cities on August 26. His supporters fought small battles with the Badr Brigade militia of the Iranian-sponsored Supreme Council for the Islamic Revolution in Iraq (SCIRI) (or its reincarnation as 'Iraqi police') in several southern cities on August 24. With this background, the 'draft constitution' is only likely to be 'passed' in the referendum if there is massive US military intervention against the sunni areas and the Sadrists between now and October, coupled with ballot-rigging on an even larger scale. It is far from clear, however, that the occupiers and their allies actually propose to respect the 'law' in relation to the referendum and the three-province veto at all. They have already ignored their own legal deadlines for the presentation of the draft. If the draft obtained a bare majority, it could be spun as having democratic legitimacy as the will of the Iraqi majority and the three-province veto could be overridden like the time deadlines. For this purpose a 'majority' can probably be faked without too much difficulty. On this basis the occupiers could announce "victory" and begin to withdraw troops: this kite has already been flown (AP, August 8). 'Shia'-Kurd deal The real content of the 'draft constitution' is thus not the legalities, nor the garbage produced by Bush and co and their supporters making an analogy with the framing of the US constitution. The draft expresses a deal between some of the shia islamists and the Kurdish nationalist parties, who were not willing to make the sort of concessions to the 'sunnis' which the US administration wanted to keep 'sunni' collaborators on board in order to undermine the guerrillas. The shia islamist collaborator groups and the Kurds can hence no longer be characterised as simple US puppets: they are now, in effect, US subordinate allies who are able to pursue their own purposes under the US umbrella. The significance of the 'draft constitution' is that it gives us some idea what these purposes may be. A translation of the document as it stood on August 24 by Associated Press can be found on several US news websites (search "Iraqi constitution text"). Juan Cole in his 'Informed Comment' web blog (www.juancole.com) remarked that an earlier version of the AP translation was inaccurate, since it translates Arabic legal terms of art as if they were colloquial: this is most relevant to the question of the status of islamic law. The mistakes Cole identified appear still to be present in the full translation. A small example is that the immunity of elected representatives is removable if they are charged with a 'felony', a term of art of American law which is very unlikely to have any meaning in Iraqi law. This may cause us to doubt whether the translation means what is says when it describes one of the main courts as one of 'cassation', a term of art in French law. If 'cassation' is an accurate translation, it says something significant about the intended constitutional role of the judiciary, but in the light of 'felony' the translation does not seem reliable enough for this level of analysis. There is nonetheless enough information to allow an assessment. Much of the document consists of the standard features of post-war European constitutions. There is to be separation of powers: the judiciary is declared to be independent, and elected representatives are not to hold any other public office. The president is primarily ceremonial, but has some reserve functions; he, and the prime minister and cabinet, are to be elected by the single-chamber parliament ('council of representatives'). There are a series of wish-lists as to rights and freedoms and the purposes of the state. These display a mix of vague aspirations to rights to work, education and a health service for all, environmental protection, etc, with a clear and unambiguous entrenchment of the right to private property, and some slightly less clear commitments to promoting "the most modern economic theory": ie, neoliberalism and privatisation. This combination is like the EU draft constitution, but (as translated) is less carefully drafted. In the EU draft it was clear that the commitments to neoliberal economics were tightly defined operative commitments which clearly overrode the vaguer social commitments; in the Iraqi draft it is only the protection of private property from expropriation, and the role of islamic law, which is so tightly drafted. The debated issues are the role of islamic law and 'federalism', which was the issue on which negotiations with the 'sunni representatives' broke down. In these aspects the 'draft constitution' is a clearly contradictory document. I do not mean 'contradictory' in a dialectical sense: ie, as expressing a process of change. This document purports to be a legal instrument, but it is internally contradictory. These contradictions express the fact that that it is to be used as political cover for the different, and opposed, projects of the Kurdish nationalists and the collaborator wing of the shia islamists. Islamism Article 2 (1) says that "Islam is the official religion of the state and is a fundamental [or "basic"] source for legislation". This is the 'compromise' made between the religious parties, who argued that islam should be the source for legislation, and the seculars, who (trying to find a compromise) argued that it should be a source for legislation. Article 2 (1) (a) is translated by AP as saying that "No law can be passed that contravenes the fixed principles of islam." Cole, however, translates as "No law may be legislated that contravenes the essential verities of islamic law". The difference is substantial. "The fixed principles of islam" potentially implies a general and indeterminate commitment. The reference to "islamic law" implies a real control. This implication is cashed in article 90 on the supreme federal court. Article 90 (2) provides that "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." It is not clear whether this is intended to be (1) a combination of some secular jurists with some ulama or (2) a court staffed by people qualified in both sharia and secular law. In the light of articles 2 (1) (a) and 90 (2) it is now possible to revisit article 2 (1) itself. Any legal system whatever requires (a) a hierarchy of sources of law (eg, constitution higher than statutes which are higher than precedents) and/or (b) underlying principles (in effect higher laws) which will allow the court to decide cases where sources of law are in conflict. Article 2 (1) gives islam as the basic principle for this purpose. It then lists as subordinate general authorities (a) islamic law, (b) "the principles of democracy", and (c) "the rights and basic liberties enumerated in this constitution". It has always been clear that the policy of ayatollah Sistani and his co-thinkers was not to take direct control of the state, as the Iranian ayatollahs did, since this has exposed the Iranian clerics to criticism as corrupt and tyrannical exploiters. Instead Sistani has followed the path taken by the sunni ulama after the Abbasid revolution of the 8th century CE (second AH): a coercive state autonomous of the clerics is conceded to exist, but the ulama retain a monopoly of law and its interpretation. In the modern context, this implies that even state law may formally exist, but its content is subject to a veto by the islamic jurists. It is therefore clear that when Bush hails the Iraqi constitution as "an inspiration to all who share the universal values of freedom, democracy and the rule of law" (various media, August 29) what he is actually saying is that the US government will be comfortable if the outcome of its invasion of Iraq is an islamist clericalist regime (at least in the 'shia areas'). Surprise, surprise. The Iraqi shia islamists (except the Sadrists) are currently tactical allies of the occupiers. Islamists in general have historically been allies of local capital and hence directly or indirectly of the imperialists against the workers' movement in the Middle East. 'Anti-imperialist' or 'anti-capitalist' islamism is a fake. Of course, the question this poses is: what sort of sharia? There are four sunni schools of law, with divergent interpretations of sharia; and shia law is different again (even if we limit it to the 'Twelver' shi'ism of Iran and southern Iraq, as opposed to other variants). The present reality in Iraq is that each mosque has its own militia and sharia serves merely as a cover for local gangs of extortionists. No constitution of any sort can have even a degree of reality without the forcible suppression of these gangs and the forcible subordination of the imams who legitimate them to a central state. Democracy and rights As we have already seen, the text also prohibits the passing of legislation inconsistent with "the principles of democracy" and "the rights and basic liberties enumerated in this constitution". "The principles of democracy" mean many things to many people. For the US government they fairly clearly mean 'doing what the US wants'. To most liberals they mean simply 'a parliamentary regime'. To democratic republicans, and hence communists, they imply government in which everyone gets to participate in political decision-making, and hence political freedoms and the accountability of elected representatives, a popular militia and the right to bear arms, trial by jury, etc. To islamists they mean something different again: the principle that the majority should rule, and hence, since the majority are muslims, an islamist state. This can be seen from the islamist essays in John L Esposito and Azzam Tamimi (ed) Islam and secularism in the Middle East (2002). The effect is that the majority get to decide once and once only. Once the majority have decided to create an islamist state, the law will become the exclusive property of the ulama and, even if there are elections, the parliament will have no power over the laws (or, as in Iran, the clerics will control who gets elected). This is 'democracy' in the same sense as the 'democratic' referendum which in 1934 by a 90% majority gave Hitler unlimited powers. "The rights and basic liberties enumerated in this constitution" are given in chapter two of the draft (articles 14-45). They are broadly liberal in character, but, as has already been said, also include the 'social rights' of post-1945 constitutions and declarations. Like liberal grants of rights - and unlike the categorical entrenchment of islamic law - they have limits attached. Thus by article 14 "Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, colour, religion, sect, belief, opinion or social or economic status." But "equal before the law" means something very limited: that the law applies to everyone equally. Thus if the law gives the husband certain rights over his wife, in enforcing these rights against the wife the court treats husband and wife as equal before the law. By article 17 "each person has the right to personal privacy as long as it does not violate the rights of others or general morality". But "the rights of others" and "general morality" are large general exceptions. The list could be continued. Trade unions under threat A particularly clear example of what this sort of grants of rights may mean in practice is given by the question of trade unions. By article 22 (3) "the state guarantees the right to form or join syndicates or professional unions. This shall be regulated by law." What sort of law? Well, the Iraqi council of ministers on August 8 issued decree 875 on the topic, revoking the 2004 'governing council' decree on trade unions, and providing that: "a new committee [with responsibility for trade union issues] is established comprising the ministers of justice, the interior, finance, the minister of state responsible for the transitional assembly, the minister for civil society, and the minister of national security. "This committee must review all the decisions taken to oversee the implementation of decree No3 since its publication in 2004 and must take control of all monies belonging to the trade unions and prevent them from dispensing any such monies. "In addition I am proposing a new paper on how trade unions should function, operate and organise." Decree No3 was not a provision for freedom to organise trade unions, since it recognised only the Iraqi Federation of Trade Unions (led by the Iraqi Communist Party). But the new decree quite plainly proposes state-controlled trade unions. "Regulated by law" and similar phrases are found in many places in the draft constitution. It renders the rights granted worthless as a control on the laws which are passed. A curious incidental: by article 59 (8) (b) 3 (e) of the draft constitution, the council of representatives "has the right to question and relieve the officials of independent associations from their duties according to the procedures relating to the ministers and by absolute majority": ie, it seems (unless this is another piece of dud translation) the right to remove the officers of parties, trade unions and other voluntary associations. Who rules? Constitutions at the end of the day depend for their interpretation and enforcement on who possesses the military power. Behind possession of the military power lies consent, and behind consent economics: but political power immediately, as Mao put it, "grows out of the barrel of a gun". The present situation in Iraq in this respect is characterised by two facts. The first is that the imperialist occupiers have military veto power. They do not have enough troops to impose their own rule on the society (which would require perhaps a million troops on the ground and the willingness to take heavy casualties in street fighting), and they do not have enough political legitimacy to create an Iraqi puppet state, but they have enough fire-power to stop anyone else creating a state. Second, under the umbrella of this veto there are very broadly three zones: Iraqi Kurdistan in the north-east, the 'sunni area' in the centre and west, and the 'shia area' in the southeast. The Kurdish nationalist parties have been US-British allies since 1991 and have an army or armies in being and embryo party-states in the area they control. The 'sunni area' is also characterised by the presence of a (guerrilla) army in being, reasonably clearly derived from some section of the Ba'athist regime, and capable of sophisticated military operations, but not capable of holding territory against the US forces. The 'shia area' has the numerical majority but lacks an army in being, having instead only local gangs of militia. The evidence so far is that this area is unable to create an army in being, for two reasons. The first is the link to the occupiers: the poor legitimacy of the occupiers means that soldiers recruited to the formal armed forces created by the occupiers are unwilling to fight. The second is that Sistani's strategic line is precisely opposed to creating a shia army in being. This is both because subordination of the state to islamic law under Iraqi conditions tends to create merely local warlordism, and because in order to create a coherent army the clerics would need to preach jihad against someone, and claim the state power directly (as in Iran). This military background has implications for what the draft constitution would mean if it was 'brought into force' by the occupiers and their allies. In the first place, in the 'sunni area' it would have no effect at all: the collaborator regime is unable to impose itself on this area already, except in the form of US search-and-destroy missions. If the occupiers withdrew, some form of the Ba'ath regime with an increased religious tone would reconstitute itself in this area. Second, in the 'shia area' it would serve merely to legitimate what already exists: ie, the occupiers block the formation of a state with real coercive capacities, but preside over mosque-level warlordism and extortion rackets. If the occupiers withdrew, there would be a race between the constitution of a state in this area, reconquest by the 'sunnis' and a tendency towards annexation by Iran. The shia parties' strategic need for Iranian military support is reflected in the agreement reached in July for the Iranian armed forces to assist in training and re-equipping the 'Iraqi army' (BBC news, July 7, http://news.bbc.co.uk/2/hi/middle_east/4659287.stm). Kurdistan Third, in Iraqi Kurdistan the constitution would be interpreted by judges tied to the Kurdish nationalist parties. The proto-party-state character of the Kurdish nationalist parties' regimes means that the guarantees of rights, etc would have the same practical significance (or lack of it) as those in the Soviet and eastern European states before 1989. Islamic law would not rule and there is no reason to expect that inconvenient rulings by a 'federal supreme court' dominated by islamic legal experts would be respected by local courts or by the bodies on the ground capable of enforcing court judgements. Thus Kurdish nationalist leader Massud Barzani commented in an interview with La Repubblica on August 22 that "we categorically reject a state that is based on islamist principles" (http://kurdistanobserver.servehttp.com/22-8-05-barzani-rejects-islam-law.htm). If the occupiers withdrew altogether, the Kurdish nationalist parties would need to find another military sponsor. There is some evidence of Israel playing this role already (Seymour Hersh in the New Yorker June 28 2004 - http://www.newyorker.com/fact/content/?040628fa_fact), though this may be merely an effect of US policy. However, a fully independent Kurdistan would result in Turkish military intervention to suppress it. Way back in 2002 the then Turkish prime minister commented that "Even though they say, 'We are against founding a Kurdish state,' a de facto state is already on the way to being formed. If this becomes official, there will be serious problems." The Israelis are unlikely to be willing to threaten to nuke Ankara in defence of Kurdistan, and this is the only military means realistically available to them to stop a Turkish intervention. The Kurds therefore need at least a fig leaf of the existence of Iraq as a united sovereign state. They also, more than anyone else, need the imperialist troops to stay. For this reason (and because of US arm-twisting) Kurdish negotiators have made substantial concessions to the islamists in the production of the draft constitution. Their major gain from it is 'federalism'. 'Federalism' The draft constitution in article 108 specifies that the central federal authorities have exclusive powers in relation to: foreign policy; defence policy and border defence; financial, customs and trade policy, money and the central bank; weights and measures; nationality, residence and asylum; broadcast wavelengths and mail; water resources from outside Iraq; and the general census. By article 112 the federal authorities are given shared competence with the regions in relation to customs; electrical power supply; environmental policy; general planning and development policy; general health policy; and general education and childcare policy. By article 111 all other powers belong to the regions, and in the area of shared powers "priority will be given to the region's law in case of dispute". This is a broad empowerment of the regions. By article 129, for example, "the region's government is responsible for all that is required to manage the region, in particular establishing and organising internal security forces for the region such as police, security and regional guards". The regions can thus have their own military forces. By article 109, in a nicely ambiguous formulation (at least as translated) "oil and gas is the property of all the Iraqi people in all the regions and provinces". In the context of the limited powers of the federal government and the general vesting of all other powers in the regions in article 111, this seems to imply that oil and gas resources will vest in the regions and provinces. By article 110, however: "The federal government will administer oil and gas extracted from current fields in cooperation with the governments of the producing regions and provinces, on condition that the revenues will be distributed fairly in a manner compatible with the demographical distribution all over the country. A quota should be defined for a specified time for affected regions that were deprived in an unfair way by the former regime or later on, in a way to ensure balanced development in different parts of the country. This should be regulated by law." It should be noted that this provision affects only current fields: fields discovered by future exploration (if the government ever acquires sufficient military control to allow exploration and exploitation of oil and gas) will belong to the regions and provinces. 'Regions' are to be created by the agreement of one or more province, by referendum, to form a region (article 114). There is no limit on the number of provinces (there are currently 18 provinces in Iraq) who can join together in a region. Provinces can elect to continue as provinces without jointing a region. But if they do so they do not have the broad powers given to regions by the draft constitution. Rather, under article 132, they "are given extensive administrative and financial authorities to enable them to self-manage according to the principle of administrative decentralisation, and this is regulated by law". In other words, the question of what powers provinces will get is up for grabs in a future legislature. The effect of these provisions is, first, that there is a clear incentive for provinces to join together to form regions. Second, since there is no limit on the size of these regions, the natural course of action will be for there to emerge one 'shia' region in the south-east and one 'Kurdish' region in the north-east; the 'sunni' provinces of the centre and west will then be forced to band together in a region if they are not to be left with the much weaker status of provinces. Since the oil and gas resources are located in the north-east and south-east the 'sunnis' would be cut out of the spoils; and in fact this intention is transparent in the provisions in article 110 for "affected regions that were deprived in an unfair way by the former regime". Not federalism This is not federalism in the US sense. The powers of the federal authorities are in some respects stronger (army, albeit qualified by the power of the regions to have regional armed forces; foreign policy), but in other respects weaker, than those of the European Union institutions. If this constitution was implemented, Iraq would acquire a 'council of union' composed of representatives of regions and provinces "to examine bills related to regions and provinces" (article 63 (1)). Much about this council is left to be "organised by law" (article 63 (2)). But, given that the bulk of Iraq's state revenue before the wars was rents on oil, and these are now in effect to be reserved to the regions, and given that the tendency will be towards three regions, it seems likely that this council would be more like the EU council of ministers than the US Senate or German Bundesrat. In other words, the specific 'federalism' of the draft constitution gives the shia islamists a fig leaf of constitutionalism to cover the existing tendency towards a confederation of sheikhs and mosques in the south; and the Kurdish nationalists a fig leaf of a formal federal state to cover the evolution of a confederation of party-states in the north. It gives the 'sunnis' nothing: or, in fact, less than nothing, because of the policy of bans and proscriptions it contains. Bans and proscriptions By article 7: "(1) Entities or trends that advocate, instigate, justify or propagate racism, terrorism, takfir [declaring someone an infidel], sectarian cleansing, are banned, especially the Saddamist Ba'ath Party in Iraq and its symbols, under any name. It will be not be allowed to be part of the multilateral political system in Iraq, which should be defined according to the law. "(2) The state will be committing to fighting terrorism in all its forms and will work to prevent its territory from being a base or corridor or an arena for its [terrorism's] activities." In the transitional provisions, by article 145 (3) candidates for elective and other public office may not "be included under the provisions of de-Ba'athification". It would be fair enough to disqualify people who had been convicted of crimes committed under the Ba'athist regime, but this provision casts the net so wide as to disenfranchise a large class who are guilty of nothing more than collaboration with this regime. It is expected to hit the 'sunnis' particularly hard. We are familiar with the ambiguities of "terrorism" from British anti-terrorism legislation. As for "racism", communists have been accused of "racism" for opposing the Socialist Workers' Party's attempt to create a political party in alliance with islamists. The islamist essays in Islam and secularism in the Middle East take a similar stance, accusing secularists of indirectly favouring colonialism. The truth is that broad general bans and proscriptions of this type strengthen the bureaucratic-coercive state and undermine political democracy. Balance of forces We communists have argued before - particularly in relation to the EU constitution - that constitutions and the struggles over them express the political balance of forces. In the case of the Iraqi 'draft constitution' it does so in a very indirect way. Apart from the Kurds and the brooding presence of the US, the characters negotiating in the green zone have very little relationship to the real relationship of forces on the ground, and the lofty promises of the draft constitution even less. But the draft constitution does nonetheless indirectly express the relationship of forces on the ground: the Kurdish parties are forced to make concessions on islamism, the seculars get little more than empty words, and the shia islamists have to conceal their project in a verbal smokescreen and in reality claim not to control the country, but only to control the south through the mechanism of 'regions'. The relationship of forces disclosed is a terrible one for the Iraqi working class. It is what the Worker-communist Parties of Iran and Iraq have correctly called a 'dark scenario'. It exposes as utterly false and self-deluding the ideas of the Alliance for Workers' Liberty and the pro-war left that the occupiers are in the midst of creating democracy in the Middle East, or that the workers' movement in Iraq is developing under the protection of the occupying troops. It similarly demonstrates just what the Communist Party of Iraq have got out of their decision to collaborate with the occupiers: an islamist constitution and a decree under which the ministers are to "take control of all monies belonging to the trade unions and prevent them from dispensing any such monies". The underlying relation of forces is a matter of military facts on the ground. At the end of the day the 'constitution process' does not alter this relation one iota. It will only be changed by changing the relation of forces on the ground. What British communists can contribute to this struggle is three things. The first is to fight to get British troops out of Iraq: immediately and unconditionally. The troops are not fighting the islamists: they are supporting them. They are not building democracy, but presiding over petty warlordism. The second - part of the same struggle - is to expose the true character of this 'draft constitution' against the lies of the pro-war media. The third is to give what support we can to those forces in Iraq who are fighting to change the relation of forces on the ground in favour of the workers' movement. Right now that means mainly the small forces of the Worker-communists. Mike Macnair