Challenging Authority and Constitutionalism in the (New?) Iraq
This will be the last of my reports that concern
I have always wondered why it is that Iraqis, even educated Iraqis, even Iraqi lawyers, tend to regard reading to be some sort of painful torture to be avoided wherever possible. But they do, the US might have gotten more information in Abu Ghraib that way, handed each prisoner a book and told them they'd be questioned on it later.
I just sat in on a doctoral dissertation defense, and within five minutes, it became amply clear that not a single person had read the dissertation, even the guy who was the thesis advisor. The questioning was ridiculous as a result. One had a problem with the font, one wanted to know how dare he dedicate the dissertation to his uncle, not his parents, one got hung up on why he said "a central source I have used" rather than "the central source I have used" on page 3 (nobody had anything to say past page 3) and then ten minutes were taken up with whether or not the dissertation was to be considered private international law, or commercial law. I left before they resolved that.
That's not an unrepresentative case. Examples everywhere abound. I asked an Iraqi lawyer the standard for negligence in Iraqi courts. They didn't know, so their reaction was to ask other Iraqi lawyers. When they didn't know, they found a judge. He didn't know either. So the answer came back, "this never appears in court, we don't have such a standard." I say this cannot be, clearly there must be a law that governs who pays what in a car accident or medical injuries or whatever, maybe it is almost always settled not through judicial channels (a thesis of some of my work) but there must be a standard. Somewhere on paper there is a standard. They ask around again, nobody has an answer, they say "nope, no standard in Iraq." Do the Code commentaries say something? More asking around, then it's no they don't deal with this. But they haven't cracked the book, they've just asked each other. So then I simply look up the Code provision, look up the authoritative academic commentaries of them, and find they are unanimous in reading the text to adopt the French version of neglience. That took maybe 45 minutes, using their library. Why nobody thought to use those books when it was a live case and money was involved is worthy of consideration. These aren't dumb people I am dealing with, some are quite smart, but they never want to find information by actually looking it up, as opposed to asking others.
I do think some of it has to do with an excessive deference to authority, bred perhaps in decades of totalitarian dictatorship. You could go read what Sanhuri said about negligence, but if you ask the guy older than you and in a higher position, you are far safer. Because then there is no possibility you will be in disagreement with him. And there is nothing worse than being in disagreement with your elders. Even among academics, it is incredible how much this is true. That was the other comment in the dissertation I witnessed--how dare you suggest that something some Baghdad professor said was mistaken, don't you know he is older than you, he has studied law longer than you have been alive? That was particularly disturbing, given how anti-intellectual that position is. It's wrong merely because it disputes the elder, no other reason need be or was given. Original thought is not only unrewarded, but merits censure apparently. You can imagine what the dissertation becomes as a result, and what this one was. A recitation and compilation of the wisdom of those who came before. It would take I think any graduate students we have at Pitt a month to do something comparable.
This I think can be bad not only for Iraqi law generally, but catastrophically bad for Iraqi constitutional law in particular. My wife the Iraqi lawyer has found some regulations that are quite offensive and plainly in our view easy to challenge on constitutional grounds, but nobody will take the case. (I will elaborate soon, after she has had a chance to write on this herself, it's her beef really, and she has done extraordinary legwork for it). There is extreme reluctance to take on the government. Petition it to remove the unconstitutionality, sure, but when it ignores you, just gripe and accept it, like you're a five year old kid and the government is dad and has said "no" to your request for an allowance increase.
In all seriousness, that's what some of these government activities resemble. So many center on requests that the government raise salaries in Ministries or universities or other centers in this country where the public sector is huge. Sometimes it is for all workers, sometimes for those with advanced degrees, or whatever. It takes up so much time in coffee shop talks, in university discussions, and even in Parliament based on my own viewing of the Iraqia channel which covers the Parliament sessions. It literally sounds like complaining children in all of these venues. The most recent, I remember from about a week ago, was how it came to be that the central government gave government employees in Baghdad a raise and the Kurdish government didn't give anyone a raise. ("Mom! How come Jenny's mom bought her a Playstation and I only have a Game Boy. You're so unfair"). The response was that the situations are different, because the budgets are different and the costs of living different. ("You don't live in Jenny's house, young lady. And life isn't fair.")
But constitutionalism can't work this way. The government is beyond its authority, it has to be challenged, in an independent court, not petitioned. It takes a different model than parent to child to do that. It seems to me that in order to have a viable and sensible constitutional state, with a real, functioning constitution, you need people who are a pain in the backside, a person who when my wife approaches them about the regulations, doesn't find excuses to avoid the matter. Instead, they smile and think I'm taking these bastards to the fellows in the black robes and I'm going to maul them. Because only people who are a real pain sue the government when they're angry at it, most people, Iraqi or American, would rather not bother. If DC doesn't let you have a gun, most conservatives would either move out or gripe than want to deal with a lawsuit, and likewise if