Iraqi Constitution

Monday, May 09, 2005

Son of Liberty Posted by Hello

Iraqi Constitution

It has been fascinating and inspiring to witness Iraqis ' struggle to establish a free and democratic system while under fire from a heavily armed minority of violent and predatory power seekers. The saddest thing would be win the fight, only to end up with a different form of tyranny. This can happen so easily if the structure of the new government does not have sufficient constitutional and institutional safegards.

For many years I have closely observed my own (US) government and thought about how the US constitution affects my society for good and ill. Perhaps some observations could help Iraqis to avoid our worst mistakes and build a stronger society. I offer these ideas as a starting point for debate among interested Iraqis.

General Principles

  • A legitimate government is the servant of the people, not their master. It is defined by two fundamental characteristics: respect for human rights, and the informed consent of the governed. Rule of law, which objectifies and limits governmental power, is the only effective means of binding government to serve the people rather than the politicians in power.
  • The freedom of the people is specifically the freedom to say "No" to the programs of any government that no longer serves their interests. This freedom is exercised through regular democratic elections.
  • Likewise the freedom of the individual is the freedom to say "No" to the ideas, customs, habits, and attitudes of his neighbors and fellow citizens, provided he does not initiate force or fraud against them, or otherwise disturb the peace.
  • Second only to the right to defend one's person, family and fellow citizens from violent assault, the most essential human right is the right to legally acquire, use, and dispose of private property. All other human rights (speech, religion, association etc.) become in practice mere permissions if one's freedom to work and to keep, use, and sell the products of one's work are subject to control by others.
  • Any one party or group in power for too long inevitably becomes corrupt, regardless of its alleged principles. An effective loyal opposition is a good and necessary thing.
  • Positions of power attract power seekers. The power of any office should be no more that is necessary to accomplish its functions, and must be balanced with accountability and responsibility.
  • Corruption generally requires lies or secrecy. Open public debate and a free, vigorous, and independent press help minimize corruption.
  • Every government has the power to prosecute and punish criminals. Do not allow the definition of criminal to include those who peacefully criticize the government or its agents, or political opponents of politicians in power.
  • Taxation is only one step removed from extortion. Beware of non-uniform taxes that set one part of society in opposition to another.
  • The government is your agent, not your mommy and daddy. It is responsible primarily for defending your freedom and security, not for your economic well-being, except by maintaining a stable currency and a rule of law in which business is free to flourish.
  • You get what you pay for - if you want high skill, high quality people in government, you must pay them what they are worth.

Constitutional Law
  • A constitution defines the structure of a government, limits its powers, and is the basis of all rule of law. The main point of a constitution is to protect the people from arbitrary, capricious, and unlimited government power. To protect the people, a constitution must be both understandable and very stable. There is no point to having a constitution that is unclear, difficult to interpret, or easy to change.
  • Excessive length or complexity is not desirable. The longer and more complex the document, the more likely that there will be conflicting and contradictory elements that can be used to undermine the intended limits. Power-seeking politicians and parties will always be trying to push the limits of the law for their own purposes. Each article must be stated clearly, simply, and with no vague language such as "promote the general welfare" which can be stretched to mean whatever the current legislature or judge wishes. Somewhere in the constitution should be a clause stating that the powers of the government are strictly limited to those listed in that document.
  • Every officeholder, military officer, policeman, and government employee should swear an oath to preserve, protect, and defend the constitution as his primary and overriding duty. Judges should also swear to rule strictly within the limits of the law, regardless of their personal beliefs or preferences. Laws or regulations made by the legislature and all actions of the executive must be subject to revocation by the supreme (constitutional) court if they exceed the limits set forth in the constitution. Citizens should have the right to challenge the constitutionality of any new law.
  • Governmental powers should be limited to the essentials - National defense, police, courts, foreign relations, infrastructure, travel, environmental protection. Avoid the use of government to transfer wealth from one group or region to another, or to determine or limit how much people earn. This causes politics to become an endless battle over money and for the power to control and protect one's income or wealth. It also makes the political power of any one group more threatening to others. In particular, taxes should be imposed at a uniform rate on everyone, or not at all, so no one group can be singled out to pay more than their share of government costs.
  • Beware of clauses granting extraordinary powers to the executive during "emergencies". Misuse of legal "emergency" powers is one of the common methods for dictators to take over a democracy with minimal resistance. If some emergency powers must be provided, they should always be of limited duration, always require legislative consent, and never extend to disolving or overruling the legislature or constitutional courts.

Independence of Judges
  • There is little hope for genuine rule of law and fairness to all unless executive, police, and legislative powers are limited by independent and honest judges. The problem is how to get the best and most honest men as judges and how to protect them from any form of threat, coercion, bribery, or public pressure, yet still allow for the removal of the occasional corrupt or incompetent judge.
  • In the US, federal judges are nominated by the president and must be confirmed by majority vote of the senate. This works fairly well, but could probably be improved by requiring that an independent panel of retired judges pre-screen the candidates the president can propose. The independence of judges from political pressure is assured by making their appointments for life, and by a constitutional clause stating that their salary cannot be diminished by the legislature nor their office eliminated. A judge should only be removed by a serious impeachment process, starting with a recommendation by a panel of retired judges, followed by debate and vote in the legislature. A mandatory retirement age is probably a good idea.
  • Judges should be very well paid to minimize the likelihood of bribery. Also, like politicians, their finances should be subject to routine scrutiny and their investments placed in a blind trust so they cannot be swayed by personal financial consequences of their decisions.
  • Finally, the number of judges in the supreme or constitutional court should be fixed by law, so that a president or party with a large majority cannot try to take over the court by adding more judges supporting their own views.

Term Limits
  • All elected offices should have fixed term limits of no more than 6-8 years, which should also apply to immediate family members (siblings, children, spouse at least). People who hold government offices for too long start to think that the office belongs to them, not to the people they are supposed to serve. Also, they tend to devote their efforts to getting re-elected first, performing the office second. It is better to have a government of respected citizens serving their country for a few years in the midst of their careers than a coterie of professional politicians scratching each other's backs while grabbing every opportunity to expand their power and influence. Long tenure in office not only shuts out new ideas, it leads almost inevitably to lies and corruption as politicians try to defend their positions, cover up their mistakes, and reward those who help them stay in office.

Split Districts and Gerrymander
  • One of the worst methods US politicians use to eliminate effective competition and insure their own re-election is the gerrymander. This is the process of periodically reshaping the boundaries of electoral districts so that the district contains mainly people known to favor a particular party, thereby virtually guaranteeing the election of that party's candidate. The constitution should require that electoral districts be a simple and compact as possible, and provide a neutral and objective method for setting the district boundaries (for example, a panel of retired judges or professional men).
  • The unique multi-ethnic nature of Iraqi society suggests a way to force politicians to be more moderate and fair to all. Divide each electoral district into three equal parts, each in a different area of Iraq. Election to office then requires getting a majority from citizens living in more than one region. Politicians would have to be aware of and to respect the needs and desires of a wider population.

Wasteful Spending
  • In the US, enormous waste results when the legislature produces spending bills that lump together allocations for many different programs in a single spending bill. This bill will include both essential spending for core government functions and dozens or hundreds of allocations for local, regional, or national projects that benefit particular politicians but which could not be passed individually on their own merits, and which get litle or no debate. Because the essential items are needed, the President is effectively forced to sign a law that includes large amounts of wasteful and unnecessary spending. This could be prevented if the constitution required each spending bill to address a single issue only.

  • No bill should be allowed to pass unless the vote of each individual legislator is recorded. Votes "by acclamation" or "voice vote" allow legislators to escape accountability for their judgment.
  • No bill should be brought to a vote in its final form without a reasonable period (3 business days?) for legislators to study its contents before voting on it. Similarly, all proposed bills not involving classified intelligence should be made public well before a vote so citizens can know what is being done and comment on it.

  • The more power the legislature and government agencies have to tax and regulate businesses, the greater the likelihood that businessmen and wealthy individuals will seek to bribe or control goverment figures to rule or legislate in their favor. Also the greater the temptation for politicians and parties to use the threat of negative action to extract "contributions" from those subject to their actions. Minimizing the arbitrary power of government to tax and regulate (for example, allowing only uniform, universal taxes, and requiring objective cost/benefit analysis of regulations) will go a long way toward preventing corruption.
  • Government salaries should be high enough to attract the most able people and make officials feel well-paid and appreciated. However, legislators should not be able to raise the salaries of elected officials until after the next election. Also, the finances of government officials should be subject to routine scrutiny and their investments placed in a blind trust so they cannot be swayed by personal financial consequences of their decisions.
  • Government officials should not be allowed to accept gifts of more than symbolic value, nor be allowed to work "side" jobs which often become a cover for hidden contributions. Regulatory officials should be forbidden to work in any industry they regulate for at least three years after leaving office.
  • It might be a good idea to have an investigative department, insulated from political pressure like the judiciary, staffed by CPA's and empowered to investigate any suspicious transaction.
  • It is likely that within a few years a new form of lie detector that is absolutely reliable will become available. If so, its use should be required in corruption investigations, political speeches, and criminal proceedings.

Corruption and Oil
  • Iraq's oil income will inevitably draw schemers wishing to grab a portion of it for themselves or their parties. A large government-run oil industry (or any other government-run industry) will also become a place for politicians to reward their unqualified supporters with wasteful jobs. The government should be barred from running any business, and revenues taxed from any resource-based business like oil and gas production should either be placed in general funds or distributed to the regions in proportion to population.

Political Funding
  • It is useless to try to limit or control political funding and speech as has been tried in recent years in the US. All that does is force the money into more roundabout paths with even less accountability. Simply limit individual contributions to a reasonable maximum and demand public disclosure of all political contributions.

  • Taxes may be a necessary evil, but some types of taxation are more harmful than others. The worst tax is the inheritance (death) tax, which takes away the fruits of a man's life work so he cannot provide for his widow and children. The next worst tax is the property tax, which penalizes success, requires people to keep working just to maintain what they have already earned, and can force elderly retired people out of their homes. The third worst tax is the income tax, which requires a huge bureaucracy to administer, time consuming record keeping by everyone, and court-clogging criminal sanctions for failure to file or pay. The simplest and least harmful tax is the sales tax, because it's strictly "pay as you go" and requires no record keeping by the average person. To make life easier for the poorest people, it might be good to exempt food from a sales tax.

Separation of Government and Religion
  • Mixing of government and religion corrupts both. Clerics become concerned with worldly power and influence rather than nurturing the individual soul. The government thinks it embodies some absolute truth and feels it must stick to its programs regardless of consequences in the real world. Each becomes less effective in serving the people in their proper domains. Often the result is tyranny.

Department of Common Sense
  • No matter how well-crafted the laws and how well-structured the government, regulatory bureaucracies inevitably come up with occasional decisions that fly in the face of reality, that are clearly stupid or destructive or wasteful. It might be good to have a court-like agency staffed by ordinary citizens serving temporarily with the power to reverse any individual ruling on common sense grounds, and perhaps with the power to fire the offending bureaucrat in extreme cases.

Recommended Books
  • "Novus Ordo Seclorum" (The Intelectual Origins of the Constitution) by Forrest McDonald
  • "In Search of Happiness and Good Government" by Charles Murray