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Iraq: Interim Constitution Mixes South Africa, Eastern Europe, And A Little 'Kojak'

  • Mark Baker

Iraqis involved in drafting their new interim constitution were clearly impressed by South Africa's postapartheid constitution. They also obviously admired the postcommunist constitutions from Eastern Europe. And it appears that some even had a soft spot for American television, particularly detective shows.

Prague, 11 March 2004 (RFE/RL) -- Iraq's new interim constitution looks like no constitution the world has ever seen.

Far from being merely a brushed-up version of Iraq's former constitution or a replica of neighboring constitutions, the new document is a unique hybrid. It draws on influences as diverse as South Africa's struggle with apartheid, Eastern Europe's postcommunist transformation, and even American television detective shows.

That's the opinion of legal scholars who've had a chance to analyze the document since it became public earlier this week. The interim constitution will guide Iraq until a permanent constitution can be approved later next year.

Samuel Issacharoff, a constitutional scholar at New York's Columbia University, says it's not unusual that the Iraqis copied the constitutions of other countries. He says all constitutions, to some extent, borrow from each other. But he says the breadth of the borrowing is remarkable. The drafters -- to their credit -- were clearly looking around the world for the best pieces of law available. He cites South Africa as a major inspiration.

"These constitution drafters really looked around the world because there are all sorts of provisions that [resonate] from other countries. So, for example, the guarantees of union freedoms and the rights of political parties, and the rights to health care and many substantive provisions like that, seem to be drawn from the South African Constitution. That really is the model for that kind of constitutional arrangement at present," Issacharoff said.

"If it works well, we'll see some tendency among Iraqis who are elected to draft the real constitution to adopt it. If, on the other hand, there are provisions that don't work, that look as though they are unconvincing to the vast majority of Iraqis, then I think we'll see change."
The South African Constitution -- drawn up in the 1990s in the aftermath of apartheid -- is widely seen as a success for the way in which it balances the needs of different racial and ethnic groups while safeguarding social and individual rights.

Issacharoff says the Iraqis also appeared to use the experiences of Eastern Europe and the nations of the former Soviet Union as models. Iraq's temporary constitution calls for a strong and independent judiciary -- a dominant feature of nearly all postcommunist constitutions.

"But then [the Iraqis] have taken models of strong judicial review -- that is, a supreme court with the authority to declare statutes unconstitutional. That's based on the strong judicial model that has been written into virtually all the post-Cold War constitutional arrangements in Eastern Europe and across the Central Asian republics," Issacharoff said.

One of the more curious aspects of the new interim constitution comes in the document's second chapter, on "Fundamental Rights." The wording of Article 15 -- concerning individuals accused of committing crimes -- appears to come right out of a U.S. television crime drama. The accused, the document reads, have the "right to remain silent" -- anything they say, apparently, can and will be used against them in a court of law. It continues, "At the time a person is arrested, he must be notified of these rights."

The obligation of police in the United States to remind the accused of their constitutional rights has come to be called the "Miranda warning," after a U.S. Supreme Court case of the same name.

"One of the most curious [things] is that [the Iraqis] have taken the American style of what we call 'Miranda warnings' -- that is, the right to be notified by arresting police officers that you have the right to remain silent and to get a lawyer -- and written that into their constitution. Now, as far as I know, the United States is the only country [where that formulation is used],” Issacharoff said. “[Apparently,] the popular export of American television shows means that people all over the world think that [this type of a clause in a constitution] is the norm, even though it's not."

U.S. advisers close to the drafting process insist that, despite the presence of some obviously U.S.-inspired sections of the document, the role of the Americans was limited.

Noah Feldman, a law professor at New York University, was one of those advisers. He worked initially for the U.S. government and then later directly for the Iraqi Governing Council itself. He said the Iraqis were free to accept or reject his advice as they saw fit. "I think that the Iraqis have had a pretty strong sense that while the U.S. wanted to make sure the document embodied federalism, and embodied basic rights and constitutional guarantees, at the same time it really had to be an Iraqi document because it has to be accepted by the Iraqi people," he said.

The strategy appears to have paid off. The interim constitution is being hailed for the way it balances the rights and needs of Iraq's Shi'a, Sunni, and Kurdish communities. It also guarantees a role for women and attempts to reconcile the needs of Islam with the demands of democracy.

But Feldman says only time will tell whether the temporary draft succeeds or fails -- and whether its more innovative features are eventually incorporated into the permanent constitution next year. "Very much depends on how people perceive the success of the document over the next 18 months," he said. "If it works well, we'll see some tendency among Iraqis who are elected to draft the real constitution to adopt it. If, on the other hand, there are provisions that don't work, that look as though they are unconvincing to the vast majority of Iraqis, then I think we'll see change."

The interim document will serve as a baseline for discussion, but there's no guarantee its wording will prevail in the permanent constitution. The Kurds, for one, are happy with the interim text as it stands, while many in the majority Shi'a population are already calling for changes.
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