The Iraqi Preamble and the Egyptian Unrest
It has been two months since I've written, a great deal of which I spent in Iraq, and the rest of which I spent catching up on grading and admin. work here at the law school after my trip to Iraq. So please excuse the rather long absence, which hopefully now comes to an end. I shall endeavor to keep my loyal readers engaged for the rest of the spring and summer with more regular thoughts.
When I was working with members of the Constitutional Review Committee in Iraq on recommended amendments to the Constitution, very little attention was given to the preamble, until the end of the rather intense negotiating period. On one of the last days, the lead Sunni negotiator, Selim Al-Jibouri, announced a desire to make changes to the preamble, and in fact asked for my assistance in the process. The request was startling. Though an outside observer and to my mind neutral to the debates, I was assumed to be somehow pro-Shi'i (given that I am Shi'i, after all). That said Dr. Selim and I had worked well together, had developed a pretty good rapport, he was to my mind the best lawyer in the room hands down and so I was happy to proceed. The Committee gave him leave to submit a proposal but asked that he include no more than 2-3 supplemental lines. The general assumption was that the preamble catalogued in some detail the travails of the Kurds and the Shi'a over the past several decades but left the Sunnis largely unmentioned, other than a vague reference to the "people in the western area", and Dr, Selim wanted greater mention of them. As to how in the world I could be even of mild assistance in that project was mystifying,
Dr. Selim had something else in mind. He had undisguised contempt for the whole preamble, extending Sunni mention was the opposite direction of what he wanted. I was embarrassed to say as he was complaining that I wasn't at first sure I understood the problem. I generally skipped the preamble when I thought of or read the Constitution. It struck me as a bunch of useless poetry best ignored but not particularly important. In so doing I was probably guilty of discounting the importance of preambles in a manner described in an able and well written article by Liav Orgad. In any event, when I went back to read it, I did understand the complaints more fully. It really is a little sad.
The overwhelming majority of it is a historical narrative grafted onto some pathological exercise in subnational identitarianism. Historical narratives are not in themselves bad, Orgad points out South Africa refers to its own dark past, and some of Iraq's narrative (cradle of civilization, home of writing and agriculture, place of religious importance) helps to foster a sense of nationalism I think that is quite salutary. But this preamble hardly stops at brief references.
There's a whole section on the January 30, 2005 elections (complete with a date mention), held despite the attempts of the terrorists to disrupt the whole thing. This apparently makes them of some importance, except the motivating factor to get to the polls appears to be some sort of obsession with the past. "We the people of Iraq" remembered the past sectarian persecution (which obviously is a dig at Sunnis, what other sectarian persecution could that mean?), we remembered the destruction of the holy cities, and the repression of the 1991 Intifada. We also remember the oppression of the Kurds in Halabja and the killing of the Barizans, the Anfal and the like. We remember what happened to the Turkomen in Bashir, and the presecution and killing of the people of the western area. And so we all marched together, Sunni and Shi'i and Kurd and Turkmen, to the polls to vote for a state of law. And sectarianism and racism (again, who would be the perpetrators of that but the Sunnis who boycotted that election) would not stop us from creating and choosing from our many components and constituent units a union of the highest standards and the lofty examples set forth in the Holy Books, and the discoveries of science, and human civilization. Thus is the constitution set down to form this state, which will protect Iraq's free union of peoples, land and sovereignty.
I'm really not exaggerating, that's more or less how it runs, though enough versions are available that any reader can check. And at first glance, the immediate reaction is just to skip it, who the hell cares anyway. But when forced to look, Dr. Selim was right about its obsessions, there really isn't much about what kind of state we're talking about, beyond obvious references to federalism and free union that the Kurds insisted on. The idea that this is the constitutive document of a future state is hard to believe. It feels more like a museum piece, we hereby create THIS (whatever it is THIS is, we're not even sure frankly) because of all these past things, and let's tell you in some detail about all of those bad things done to us. It is, it must be said, embarrassingly retrospective, and I say that as one who is prone to defend the Iraqi constitution against its critics, as my upcoming work will make clear. (I'm not saying one needs to forget the past, all for the Halabja museum and build an Anfal one and a presecution of the south one, but it doesn't belong in a preamble creating a new state. It just doesn't.)
With the focus on the past becomes an attendant identitarian nightmare, identity politics which I never really liked even in the US run absolutely pathological. The contest devolves into who has been the most persecuted, and an insistence that everyone be mentioned. This happens in the balance of the Constitution too, to regrettable effect as even the Shi'a pointed out. It was none other than the federally minded Jalal uddin Al Saghir who started to muse during initial drafting negotiations that at this rate Iraq's various tribes were going to insist that they be mentioned each by name (what about us Shammari tribesmen! How dare you mention the Barzans and not us!) It is one of the aspects of the Constitution I like the least, but that's all in the book.
To be clear, I don't think Iraq is so obsessed at this stage, my last visit to the Kurdish region found a rapidly growing largely independent unit becoming increasingly comfortable in its role as an autonomous region that is part of Iraq. There really is no independence movement, Barizani has made clear that to his mind, the Kurds have a right to self-determination, and that they choose to remain in Iraq under the constitutional arrangement as it exists, with the implicit threat of course that the constitution's guarantees of autonomy and the like have to be respected or the choice might change. I counted during my time in the region 45 different places where I saw an Iraqi flag. Now that's less than a tenth of the Kurdish flags I saw, but also more than ten times the number of Iraqi flags I saw last time. The dissolution is not imminent, and I am among the sanguine but I do think things are looking up for Iraq, and that the Constitution has on balance been a positive force. But that will all be in the book. The point is, the preamble didn't help, admittedly, and looked in precisely the wrong directions. The nonidentitarian substantive provisions of the constitution DID help, because they were sufficiently flexible to allow for changes that have occurred. Again, upcoming. Some of that might be in an article to be posted soon on SSRN.
Dr. Selim's proposal for a preamble that focused more on rule of law, human rights, democratic governance and equality for all Iraqis (a state for its citizens no need to mention each one's creed and ethnic origin, imagine that) never made it far, which is too bad, but given all that has happened, probably on balance not terribly important.
What does it have to do with the Egyptian unrest? Well what has impressed me with the Egyptian unrest is how it has not devolved into any sort of silly amalgam of independent movements each of which demands independent recognition, but rather remains a strong and cohesive whole where individual demands are subservient to a broader demand. That surely is easier when the distinctions among Egyptians are for the most part ideological rather than ethnic and sectarian, but nonetheless is impressive. Even more impressive to my mind is the focus not on the past (look at the mass graves, look at the massacre of this, or the repression of that, look at the terrorists or the infidelizers or the Jews or some other group whose fault it all is and upon whom we divert our focus to show how they wronged us) but really on the future. We want an end to Mubarak rule, yes, but also an end to corruption, a more equitable division of resources, professional treatment by the police and government bureaucracy, all of the sensible and hopeful and normal things that one wishes to look forward to. Others have focused on the nonideological nature of the protests, the replacement of the utopian isms (communism, Nasserism, Islamism) with something more pragmatic, and that's true. But it's not just that people are pragmatic, it's that they are forward looking and pragmatic, and aware that the nation falls or rises together, nobody wins from identitarian or ideological divisions. A month ago the fear was Muslim-Christian civil war, and here there's no state to stop it, and yet that's not what's happening.
I don't think that means a bright future appears tomorrow, any more than it did in Iraq. I find my fellow Arabs still far too socialist in their instincts (government! sell natural resources and give me give me give me!) to bring out near term economic reform. Stifling bureaucracy will take a while to eradicate and corruption is too endemic to expect a near term end. There might be some steps backwards and some forwards, and maybe the whole thing will fail, who knows. As Yogi Berra said, predictions are hard to make, especially about the future. I just think that in the past few years, somewhere between that preamble of 2005 and now, Iraq has started to turn in the right direction, even if it's actual movement hasn't gone far, at least it's turning that way, and it seems to me from what I see, perhaps Egypt is doing the same. We can hope anyway.
HAH
When I was working with members of the Constitutional Review Committee in Iraq on recommended amendments to the Constitution, very little attention was given to the preamble, until the end of the rather intense negotiating period. On one of the last days, the lead Sunni negotiator, Selim Al-Jibouri, announced a desire to make changes to the preamble, and in fact asked for my assistance in the process. The request was startling. Though an outside observer and to my mind neutral to the debates, I was assumed to be somehow pro-Shi'i (given that I am Shi'i, after all). That said Dr. Selim and I had worked well together, had developed a pretty good rapport, he was to my mind the best lawyer in the room hands down and so I was happy to proceed. The Committee gave him leave to submit a proposal but asked that he include no more than 2-3 supplemental lines. The general assumption was that the preamble catalogued in some detail the travails of the Kurds and the Shi'a over the past several decades but left the Sunnis largely unmentioned, other than a vague reference to the "people in the western area", and Dr, Selim wanted greater mention of them. As to how in the world I could be even of mild assistance in that project was mystifying,
Dr. Selim had something else in mind. He had undisguised contempt for the whole preamble, extending Sunni mention was the opposite direction of what he wanted. I was embarrassed to say as he was complaining that I wasn't at first sure I understood the problem. I generally skipped the preamble when I thought of or read the Constitution. It struck me as a bunch of useless poetry best ignored but not particularly important. In so doing I was probably guilty of discounting the importance of preambles in a manner described in an able and well written article by Liav Orgad. In any event, when I went back to read it, I did understand the complaints more fully. It really is a little sad.
The overwhelming majority of it is a historical narrative grafted onto some pathological exercise in subnational identitarianism. Historical narratives are not in themselves bad, Orgad points out South Africa refers to its own dark past, and some of Iraq's narrative (cradle of civilization, home of writing and agriculture, place of religious importance) helps to foster a sense of nationalism I think that is quite salutary. But this preamble hardly stops at brief references.
There's a whole section on the January 30, 2005 elections (complete with a date mention), held despite the attempts of the terrorists to disrupt the whole thing. This apparently makes them of some importance, except the motivating factor to get to the polls appears to be some sort of obsession with the past. "We the people of Iraq" remembered the past sectarian persecution (which obviously is a dig at Sunnis, what other sectarian persecution could that mean?), we remembered the destruction of the holy cities, and the repression of the 1991 Intifada. We also remember the oppression of the Kurds in Halabja and the killing of the Barizans, the Anfal and the like. We remember what happened to the Turkomen in Bashir, and the presecution and killing of the people of the western area. And so we all marched together, Sunni and Shi'i and Kurd and Turkmen, to the polls to vote for a state of law. And sectarianism and racism (again, who would be the perpetrators of that but the Sunnis who boycotted that election) would not stop us from creating and choosing from our many components and constituent units a union of the highest standards and the lofty examples set forth in the Holy Books, and the discoveries of science, and human civilization. Thus is the constitution set down to form this state, which will protect Iraq's free union of peoples, land and sovereignty.
I'm really not exaggerating, that's more or less how it runs, though enough versions are available that any reader can check. And at first glance, the immediate reaction is just to skip it, who the hell cares anyway. But when forced to look, Dr. Selim was right about its obsessions, there really isn't much about what kind of state we're talking about, beyond obvious references to federalism and free union that the Kurds insisted on. The idea that this is the constitutive document of a future state is hard to believe. It feels more like a museum piece, we hereby create THIS (whatever it is THIS is, we're not even sure frankly) because of all these past things, and let's tell you in some detail about all of those bad things done to us. It is, it must be said, embarrassingly retrospective, and I say that as one who is prone to defend the Iraqi constitution against its critics, as my upcoming work will make clear. (I'm not saying one needs to forget the past, all for the Halabja museum and build an Anfal one and a presecution of the south one, but it doesn't belong in a preamble creating a new state. It just doesn't.)
With the focus on the past becomes an attendant identitarian nightmare, identity politics which I never really liked even in the US run absolutely pathological. The contest devolves into who has been the most persecuted, and an insistence that everyone be mentioned. This happens in the balance of the Constitution too, to regrettable effect as even the Shi'a pointed out. It was none other than the federally minded Jalal uddin Al Saghir who started to muse during initial drafting negotiations that at this rate Iraq's various tribes were going to insist that they be mentioned each by name (what about us Shammari tribesmen! How dare you mention the Barzans and not us!) It is one of the aspects of the Constitution I like the least, but that's all in the book.
To be clear, I don't think Iraq is so obsessed at this stage, my last visit to the Kurdish region found a rapidly growing largely independent unit becoming increasingly comfortable in its role as an autonomous region that is part of Iraq. There really is no independence movement, Barizani has made clear that to his mind, the Kurds have a right to self-determination, and that they choose to remain in Iraq under the constitutional arrangement as it exists, with the implicit threat of course that the constitution's guarantees of autonomy and the like have to be respected or the choice might change. I counted during my time in the region 45 different places where I saw an Iraqi flag. Now that's less than a tenth of the Kurdish flags I saw, but also more than ten times the number of Iraqi flags I saw last time. The dissolution is not imminent, and I am among the sanguine but I do think things are looking up for Iraq, and that the Constitution has on balance been a positive force. But that will all be in the book. The point is, the preamble didn't help, admittedly, and looked in precisely the wrong directions. The nonidentitarian substantive provisions of the constitution DID help, because they were sufficiently flexible to allow for changes that have occurred. Again, upcoming. Some of that might be in an article to be posted soon on SSRN.
Dr. Selim's proposal for a preamble that focused more on rule of law, human rights, democratic governance and equality for all Iraqis (a state for its citizens no need to mention each one's creed and ethnic origin, imagine that) never made it far, which is too bad, but given all that has happened, probably on balance not terribly important.
What does it have to do with the Egyptian unrest? Well what has impressed me with the Egyptian unrest is how it has not devolved into any sort of silly amalgam of independent movements each of which demands independent recognition, but rather remains a strong and cohesive whole where individual demands are subservient to a broader demand. That surely is easier when the distinctions among Egyptians are for the most part ideological rather than ethnic and sectarian, but nonetheless is impressive. Even more impressive to my mind is the focus not on the past (look at the mass graves, look at the massacre of this, or the repression of that, look at the terrorists or the infidelizers or the Jews or some other group whose fault it all is and upon whom we divert our focus to show how they wronged us) but really on the future. We want an end to Mubarak rule, yes, but also an end to corruption, a more equitable division of resources, professional treatment by the police and government bureaucracy, all of the sensible and hopeful and normal things that one wishes to look forward to. Others have focused on the nonideological nature of the protests, the replacement of the utopian isms (communism, Nasserism, Islamism) with something more pragmatic, and that's true. But it's not just that people are pragmatic, it's that they are forward looking and pragmatic, and aware that the nation falls or rises together, nobody wins from identitarian or ideological divisions. A month ago the fear was Muslim-Christian civil war, and here there's no state to stop it, and yet that's not what's happening.
I don't think that means a bright future appears tomorrow, any more than it did in Iraq. I find my fellow Arabs still far too socialist in their instincts (government! sell natural resources and give me give me give me!) to bring out near term economic reform. Stifling bureaucracy will take a while to eradicate and corruption is too endemic to expect a near term end. There might be some steps backwards and some forwards, and maybe the whole thing will fail, who knows. As Yogi Berra said, predictions are hard to make, especially about the future. I just think that in the past few years, somewhere between that preamble of 2005 and now, Iraq has started to turn in the right direction, even if it's actual movement hasn't gone far, at least it's turning that way, and it seems to me from what I see, perhaps Egypt is doing the same. We can hope anyway.
HAH
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