August 29, 2005

"This is a living document, as all constitutions are."

Here's an interesting part of Tim Russert's "Meet the Press" interview with the U.S. Ambassador to Iraq, Zalmay Khalilzad:
Mr. Russert: Mr. Ambassador, let me read for you and our viewers this morning something that exists in this draft Constitution. Islam is the official religion of the state, and it is a main source for legislation. No law can be passed that contradicts the fixed principles of Islam's rulings.

Do you believe that the 1800 American men and women who have died in Iraq died for the creation of another Islamic republic in the Middle East?

Amb. Khalizad: No. Those were exactly the same words that were in the constitution of Afghanistan which we celebrated. And also do not forget that immediately after what you just read, there are two other requirements that the draft mentions, one, that no law can be against the practices of democracy and also that no law can be in violation of the human rights enshrined in that constitution.
The requirement of being consistent with three such different sources of law is quite amazing. What happens when there is a conflict? There is no principle of hierarchy as far as I can tell, so is there a requirement that the three things be harmonized? If there is, won't it be necessary to distort and reshape to make the three things fit together?
Amb. Khalizad: What you have, Tim, is a new consensus between the universal principles of democracy and human rights and Iraqi traditions in Islam. And in that, it is an agreement, a compact between the various communities and it sets a new paradigm for this part of the world, a reconciliation, a consensus between the various forces and tendencies that are at work here in Iraq.

Mr. Russert: As you well know, some secular Iraqi leaders disagree with you in terms of the effect of the so-called Islamic influences. This is how The New York Times reported it on Wednesday. "Secular Iraqi leaders complained that the country's nearly finished constitution lays the groundwork for the possible domination of the country by Shiite Islamic clerics, and that it contains specific provisions that could sharply curtail the rights of women. The secular leaders said the draft contains language that not only establishes the primacy of Islam as the country's official religion, but appears to grant judges wide latitude to strike down legislation that may contravene the faith. To interpret such legislation, the constitution calls for the appointment of experts in Shariah, or Islamic law, to preside on the Supreme Federal Court. The draft constitution, these secular Iraqis say, clears the way for religious authorities to adjudicate personal disputes like divorce and inheritance matters by allowing the establishment of religious courts, raising fears that a popularly elected Islamist-minded government could enact legislation and appoint judges who could turn the country into a theocracy. The courts would rely on Shariah, which under most interpretations grants women substantially fewer rights than men."

Amb. Khalizad: Well, let me say several things on each of the points that you've raised. One with regard to women first. This constitution, this draft, recognizes equality between men and women before the law and disallows any discrimination. It also disallows violence in the family. It encourages women's political participation. And it grants a 25 percent minimum women's representation in the National Assembly.

With regard to family law, which is a controversial article, it recognizes the freedom of choice, that people can choose which law, whether secular or religious, can--will govern their personal matters having to do with marriage, divorce, inheritance. This is no different than what is the case in Israel.

With regard to the role of the Supreme Court, I think your comments reflected an earlier draft. The current draft does not establish a separate constitution review court but gives the responsibility to the Supreme Court here and it doesn't call for Shariah judges. It calls for experts in law, which includes expertise in Islamic law, but also expertise with regard to democracy and human rights, to be represented in the Supreme Court and it allows the next parliament to legislate on that.

Mr. Russert: So if a Shiite man decides to bring his wife to a Shiite religious court, you believe that woman will have equal protection?

Amb. Khalizad: Well, first, exactly how this will be done will be regulated by law. What the constitution says is that it's freedom of choice. And it directs the next legislator to regulate. What I've heard from the conversations that we've had with various members of the commission is the concern that if someone was of strong faith and wanted to go to a religious court or to get an affair settled, he should not or she should not be disallowed from doing that by the state. But how they will do it exactly, that will depend on the legislature.
That doesn't answer the question of which party gets its way! What if one wants secular court and the other wants religious court? That concept of "choice" is opaque. Again, there seems to be an interest in including the things people care about without committing to which principle supersedes another. The answer seems to be that the legislature will determine these important details. The ambassador continues, suggesting as much:
Amb. Khalizad: I have encouraged many groups who have concern about this that they ought to make this a campaign issue and run against ideas that they find unacceptable with regard to what their legislation might be. This is a living document, as all constitutions are, Tim, and as Iraq evolves and changes, this constitution will also change and adapt to the circumstances. Our own Constitution, as you know, had to change in order to remain relevant. And this will be the case with Iraq as well, as it will be the case with other countries. Constitutions are not just one-time documents. To be relevant, they will have to adapt.
Surely, anyone interpreting a constitution will recognize that it is a living document and must be interpreted to adapted to "remain relevant."

Well, three members of our Supreme Court don't, but other than that....

Surely, the Iraqi judges will get the point. And when the Koran is interpreted to fit with the times? No one's going to have a problem with that, will they?

19 comments:

Eddie said...

A living document kind of makes it irrelevant to have a constitution. If we don't have a framework that means something, we should just chuck it in the garbage. Of course the legislature is going to make specific laws around the constitution. However, it's a little bit early to be playing Monday morning quarterback on their constitution when everything is new still.

I wonder how many doubted our nation's first attempt at setting our own laws? From what I read, it was many.

PatCA said...

Unfortunately, the guy with the gun will be the one making the "choice."

I hope the Iraqi people vote it down--as they have voted down other attempts at theocracy.

Joel Fleming said...

Here in Ontario, they're considering introducing Shar'ia tribunals as an arbitration option (to which both parties must agree) in civil matters.

Maybe Iraq's simply more progressive than we are.

/end sarcasm

Goesh said...

Nope, if I were a fundamentalist I wouldn't convert my stones to patio flooring just yet...

mcg said...

The requirement of being consistent with three such different sources of law is quite amazing. What happens when there is a conflict?

Actually, that part of the constitution is entirely consistent, the way I read it. Each of the three clauses begins with: "No law may..." (or somesuch). Thus if a law contradicts any of the three principles, it is unconstitutional.

So there is no contradiction possible. If the Iraqis have strict constructionists review constitutionality issues, there should be no problems :)

mcg said...

This is a living document, as all constitutions are, Tim, and as Iraq evolves and changes, this constitution will also change and adapt to the circumstances

Our most conservative judges have no problem with the idea of the Constitution changing by means of the constitutionally mandated amendment process; what they have a problem with is changes brought about by judicial fiat.

Likewise, it depends on what the interviewee means when he says "change and adapt." If it means that they will modify the constution as they see fit, then if it's done in a democratic fashion, so be it. But if it means that the courts will be free to reinterpret it to suit their interests, without regard to its clear intent, then we have a problem.

Ann Althouse said...

Mcg: So you're predicting an "activist" court that strikes down a lot of things. Presumably, there will be many things the legislature can't possibly do, because one of the three things will need to be violated to do it. I'm picturing more bending and harmonizing by the court to produce good outcomes. Islam will be interpreted to be consistent with democracy and human rights.

mcg said...

Ann: Upon further reading of the text I am inclined to believe you. I note that the first clause says, "No law can be passed that contradicts the undisputed rules of Islam." (emphasis mine). Actually, the second clause is similarly vague.

mcg said...

Anyway, I am more optimistic about this constitution and the Iraqi people's execution of it than many seem to be. I don't think Iraq is headed towards full sharia.

Ann Althouse said...

I think it will become what the people want it to be, and so far, they have shown an interest in democracy, rights, and religious values. That can work in a very positive way or it can fail. It is for the Iraqis to do for themselves however. There is no way we can dictate it. It wouldn't be democracy and it wouldn't work. They are trying to bring together divergent factions, and that's a very hard thing to accomplish.

Simon said...

Interesting that the ambassador believes (presumably "in order to remain relevant", or to meet "the evolving standards of decency that mark the progress of a maturing society") that constitutions are living documents, and yet contends that the standards of Islam are fixed, strict, inflexible and unchanging ("the fixed principles of Islam's rulings"). This seems inconsistent to the point of incoherency. If you believe that the Koran should be construed as a legal document, one that forms a framework for a quasi-legal system (which is basically what sharia law contends, if I understand it correctly), then it becomes an authoritative document, essentially the same as a constitution. Why would you think one evolved but not the other?

Simon said...

MCG:
If the Iraqis have strict constructionists review constitutionality issues, there should be no problems

Unfortunately, since the living constitutionalists already seem to have gotten their claws into at least one member of Iraq's founding generation, you have to worry whether there will be any such Iraqis. ;)

bill said...

It's better than what is in Turkey's Constitution, and Turkey wants to be a EU member.

It's their country, how could we expect more.

michael a litscher said...

They now have a constitutional representative republic, which may not be perfect, but it's light years from where they were a few short years ago. Jimmy Carter can only wish he was a fraction as successful in his attempts to liberalize Iran, and look where that got us, and them.

And if they manage to not include "Interstate Commerce" and "General Welfare" clauses, both of which are abused here to no end, all the better.

lindsey said...

Am I the only person who feels that claiming the Constitution is either "living" or "dead" is like claiming that lamps can breathe? It's a piece of paper. The method for changing it is dependent on the process for amending it which is defined in the Constitution. This shouldn't be a topic for debate.

carla said...

Unfortunately, since the living constitutionalists already seem to have gotten their claws into at least one member of Iraq's founding generation, you have to worry whether there will be any such Iraqis. ;)

I'm not sure if this is a tongue-in-cheek comment or not....

The great thing about our Constitution is that we CAN change it. And that we interpret it not just with founder's intent..but knowing that it has to fit modern times and situations as well.

This ain't the 18th Century. The founders would never have expected us to live by those constraints.

Ann Althouse said...

Lindsey: The Constitution is not just a "piece of paper." Here's what Justice Holmes had to say about it in 1920:

"[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago."

That is the people living (and dying) under the Constitution are part of the process of giving it meaning. Holmes knew what he was talking about: he fought in the Civil War (and was shot three time).

lindsey said...

"That is the people living (and dying) under the Constitution are part of the process of giving it meaning."

Yes, we exercise our rights everyday, but that doesn't mean the rights change with the population's whim without the usage of the amendment process. Society is obviously a living organism, but a constitution is no more a living organism than is the Ten Commandments even though many Americans live by those words everyday. Also, even if all Americans including myself just up and vanish from the earth one day, the words in the Constitution will still have meaning. They're neither living nor dead, they're eternal. If they change interpretation without the aid of an amendment, then the previous interpretation of the Constitution was wrong and a violation of our rights. If words that don't change can change meaning dependent upon the whim of a few unlected people in black robes, then this is not a democracy.

Thersites said...

Also, even if all Americans including myself just up and vanish from the earth one day, the words in the Constitution will still have meaning.

To whom?