A Brief Criticism of the Iraqi Interim Constitution

Constitutional Republic: “A [society in which a] private individual may do anything except that which is legally forbidden; a government official may do nothing except that which is legally permitted.” Ayn Rand, The Virtue of Selfishness

A constitutional republican form of government is not perfect. It is only infinitely better than all the others.

However, the mere presence of a document chartering the government is not enough.

The sole function of a constitution is to limit the powers of the government. The American Constitution, the most perfect, grants the federal government only 17 powers and the ability to make any laws which serve those 17 powers. These 17 powers, being consonant with individual rights, cannot yield laws contrary to freedom unless the Constitution is ignored.

A constitution limits the power of the government. By definition, then, a constitutional republic is not a democracy. In a democracy, the will of the people is unlimited; such was the lot of Socrates and hunting/gathering societies. In a constitutional republic, the will of the people is limited to the enaction of laws consistent with individual rights.

A constitution is incompatible with democracy, for democracy does not admit of such limitations. It is therefore a grave error to confuse the two forms of government: to the degree that one believes a government is a democracy, one will reject the constitution.

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The Iraqi Interim Constitution is the first step of a people seeking freedom. It will, mistakes and truths, become the precedent for the Iraqis themselves and other newly freed people. It deserves the strictest attention to its faults to ensure that future generations in Iraq and elsewhere will not see reason to regret the formation of their government. I will here examine only a few of the largest faults. Go to the link and read it for yourself, and determine the faults for yourself. The Iraqis deserve the most acute criticism of this document possible.

Article Four of the Iraqi Interim Constitution states that:

The system of government in Iraqi shall be republican, federal, democratic, and pluralistic, and powers shall be shared between the federal government and regional governments.

This is not a redundant statement. A republican form of government necessarily possesses democratic institutions, yet differs significantly in its use of these institutions. Note that, unlike the American Constitution, this principle is stated, rather than shown through a description of how the government shall be composed.

Article Seven states that “Islam is the official religion of the state and is to be considered a source of legislation.” The horrors of this statement and others in this article defy expression, for several reasons.

First. As the only function of a government is forcible use of restraint, what then must occur to those who possess different beliefs? If, as Article Four states,

the federal system shall be based upon geographic and historical realities and separation of powers, and not on origin, race, ethnicity, nationality, or confession,

then what does this statement mean? The previous statement declared that the government remains independent of one’s “confessions,” this statement declares openly that the government not only will recognize such beliefs, but embodies them. Which will yield, the pronouncement against religious institutional bias, or the constitutional guarantee of religious bias?

Second. The article further states,

no law that contradicts the universally agreed tenets of Islam…the rights cited in chapter two… 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 statement thus indicates that all laws will cohere with Islam, that none will contradict Islamic law. What would then occur to those individuals who violate Islamic tenets, if not a rejection of their laws? What of Jewish Talmud, or Classical Liberalism, which contradicts Islamic Sharia? By definition, Iraqi law cannot recognize Talmudic law, and thus may forcibly prevent Jewish actions.

The statement refers to an “Islamic identity of the majority of the Iraqi people.” This can only mean that the non-Islamic minority, possessing contradictory principles, cannot exert legislative influence.

The statement, after declaring that it will produce a government which, by its Islamic law, will legally oppress contradictory beliefs, and will silence the non-Islamic minority in politics, declares that it “guarantees the full religious rights of all individuals to freedom of religious belief and practice.” What can this mean? If a rabbi by law is unable to be protected in some matter of his religion, how can he enjoy full religious rights? If a religious minority possesses legal beliefs opposing Islamic law, and is constitutionally unable to exert those beliefs, how is that an expression of political rights?

Article Twelve states that

all Iraqis are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion, or origin, and they are equal before the law.

First: how can one be equal in rights yet not in law? Is not the law the means of protecting rights, those rights being denied which are not protected by law?

Second: why even mention differences? If the law said merely, “all humans possess equal rights afforded equal protection under the Iraqi government,” not a single female Sunni Marxian Deterministic Scandinavian from Canada would be oppressed.

Third: the article later states that “everyone has the right to life, liberty, and the security of his person.” This is a noble sentiment, yet how does it reconcile with clause D of Article 25, which states the government may “[regulate] weights and measures and [formulate] a general policy on wages.”? Or for that matter, clause A of Article 15, which declares that “no civil law shall have retroactive effect unless the law so stipulates.” The liberty of the employer to pay the cost of labor has been removed constitutionally in the former, all pretense at preserving rights has been destroyed in the latter.

Fourth: the article later states that “all are equal before the courts.” Is not the judicial system the ground for law? How may one be equal in law yet not in court? This redundancy serves no purpose but distraction from nearby contradictions.

Clause A of Article 13 states that “public and private freedoms shall be protected.”
This bifurcation is illogical. By definition, freedom cannot admit of degrees: any imposition of physical force against the innocent removes the condition of freedom. There can be no such thing as seperate freedoms.

Clause C states that “the right to form and join unions and political parties freely, in accordance with the law, shall be guaranteed.” The right of free association derives from the concept of self—ownership. Implicit in the concept of self-ownership is the restraint upon the use of force. Thus, I am free to do anything except that which violates the rights of another. I am thus bound by the laws in regard to the initiation of physical force. Since these laws are the only function of the government, why bring mention to the above? All social interaction is restrained by the government’s delegated right to defend individuals against the initiation of physical force; this needless redundancy can only cause confusion.

Article Fourteen states that “The individual has the right to security, education, healthcare, and social security.” The right to security is explicitly descended from the condition of liberty. The only purpose of government is to protect individuals from any imposition of physical force, thus this statement is redundant.

The “right to education” cannot be a right. A right which imposes obligations upon another, in this case teachers, can only abrogate individual rights. How else but by force can a child’s “right to education” be obtained?

The “right to healthcare” imposes a similar abrogation of individual rights. First, such healthcare must be funded; this expropriation of property is a violation of individual rights. Second, this “right” constitutes a claim upon doctors, a claim which is enforced by the legal use of force.
The “right to social security” can only mean that some individuals will be supported at the expense of others. This expense will be gained through the forcible expropriation of money through taxes. Since individuals do not have a right to steal money, they cannot delegate it to government; this thus constitutes robbery. Since the only function of government is protection of individual rights, and this “right” removes the right to property, this constitutes theft.

The Iraqi State… shall strive to provide prosperity and employment opportunities to the people.

First. I must note that every dollar of “prosperity” the government gives to its citizens is one dollar taken by force from the citizens.

Second. The purpose of government is to remove the initiation of force from human relationships. Since such “prosperity” can only be gained by forcible expropriation of property, the government therefore has exceeded its powers and has become a thief.