Noah Feldman on Iraq's Draft Constitution Noah Feldman, a law professor at NYU and a senior adviser for constitutional law to the Coalition Provisional Authority in Iraq, has an important column on Iraq's constitution in today's NY Times.
Writing about Iraq's draft constitution, Mr Feldman educates the public about the realities of the political drawbacks of the process leading to what he calls the "agreement to disagree", and the potential for sectarian violence as a result of this particular process. He also tells us that the situation is not beyond all hope, but it certainly doesn't sound like success is a given or that the going will be easy in the least. As I have commented about previously, the U.S. pressure and insistence on the August 15th deadline has probably hurt more than helped to convince the Sunni Arabs in Central Iraq that the political process will give them the fair treatment, economic protections, and national unity that they seek:
..just as the train of Sunni rejectionism was gathering momentum, American insistence on meeting an arbitrary deadline was hurtling in the other direction.
What happened could and should have been foreseen:
..when the Shiites and Kurds chose to send the constitution to the public without reaching an agreement with their Sunni partners, the latter had little choice but to publicly condemn the process and the draft.
I'm already skeptical about anyone telling us that women will receive equal treatment under the new law in Iraq, because the line that has been drawn between civil and divine law is so thin, and there's no solid guarantee of civil law trumping Islamic law. It's been left open to anyone's interpretation. If this is only the "jumping off" point for future negotiation and legal interpretation, I suspect women will be among the first of the losers, dumped over the cliff, in this new Iraqi deal. Men have all too long ruled the government roost in Iraq, even when it had a secular constitution.
In a recent Foreign Policy magazine interview about the draft constitution, Juan Cole says:
"It is deeply self-contradictory and makes no provision for adjudicating the legal conflicts it sets up. For instance, it says parliament cannot pass civil legislation that contravenes Islamic law. But it also provides for freedom of speech, religion, and the press. So will blasphemy be punishable? There is no indication in the text of how conflicts like that would be adjudicated. It also creates bureaucratic and judicial nightmares. The draft I saw allows each Iraqi to choose to be under either civil or religious law for purposes of personal status—marriage, divorce, alimony, etc. Say a Shiite man wants to be under Shiite law and his more secular Shiite wife wants to live under civil law. They want a divorce. Do the divorce proceedings go forth under Shiite or civil law? Shiite law makes no provision for alimony. Can she initiate a divorce in the first place? Shiite law would not allow her to do so."
Noah Feldman tells us that's the least of our worries, and this news doesn't bring me a whole lot of comfort. Mr. Feldman said:
The major problem is one of who is agreeing, not what they have agreed on. The flawed negotiations of recent weeks, driven at breakneck pace by American pressure to meet an unnecessary deadline, failed to produce an agreement satisfactory to the Sunni politicians in the talks.
I'm not sure about you, but I do not see the potential for successful progress with this draft constitution. I can see that the United States' great hurry to claim some sort of lofty "victory" has set the peoples of Iraq on a collision course with one another.
I deeply appreciate Mr. Feldman's realistic overview. I have hope for something to go right, even as I think back on all the untruths our President and his administration allowed to flow from their lips to America's ear. They got us into a war we never needed to fight - and failed to plan for a marked success.
Now we have this draft constitution - a new false mark of achievement for Mr. Bush to boast about as if it was a step toward the enemy's surrender.
I ask you: What kind of "victory" is it when you are told that you can expect a great escalation of violence between the very groups of people we are "liberating"?