MIDDLE EAST: Constitutions in perspective
Patrick Clawson

Iraq’s new interim constitution, which includes an extensive bill of rights, may appear less impressive to Arabs than it does to Americans. Several Arab countries, whose constitutions offer similar rights, have a decidedly poor track record of actually implementing those guarantees. More important than what the legislation says is whether it will be respected in practice.

According to the Coalition Provisional Authority website, an important function of the Transitional Administrative Law (TAL) will be to guarantee the basic, inalienable rights of all Iraqis. It explains that the interim constitution will include “the right to think, speak, and publish freely; the right to peaceable assembly; the right to free association and organization; the right to vote; the right to freedom of religion; the right to privacy; the right to a fair, speedy, and public trial in accordance with the law; the right to be presumed innocent of a crime until proven guilty; [and] the absolute prohibition of torture and of other cruel and inhuman treatment.”

A leading member of Iraq’s Governing Council, Adnan Pachachi, described Iraq’s new bill of rights as “something that is unheard of, unprecedented in this part of the world.”

In fact, most of the rights guaranteed in the TAL are also guaranteed in the constitutions of most Arab states.

Libya’s 1969 constitution is one of the few that spell out what is the practice in many other Arab countries, namely, that free speech is tolerated as long as it does not include criticism of the government.

Article 13 of that document reads, “Freedom of opinion is guaranteed within the limits of public interest and the principles of the revolution.”

Several Arab constitutions offer absolute guarantees of free speech, as seen in Article 48 of Egypt’s 1980 constitution: “Freedom of the press, printing, publication, and mass media shall be guaranteed. Censorship on newspapers is forbidden as well as notifying, suspending, or canceling them by administrative methods.”

In many Arab countries, the basic laws regarding religious rights are similar to Article 46 of the Egyptian constitution: “The state shall guarantee the freedom of belief and the freedom of practice of religious rites.”

Many Arab constitutions include all of the basic principles considered essential to guaranteeing full judicial rights. Article 28 of the 1973 Syrian constitution states, “Every defendant is presumed innocent until he is proved guilty by a final judicial decision. No one may be kept under surveillance or detained except in accordance with the law. No one may be tortured physically or mentally, or treated in a humiliating manner.”

The 1991 Yemeni constitution is the most specific and comprehensive regarding such rights. For example, Article 32 states, “Anyone whose freedom is restricted has the right to remain silent and to speak only in the presence of an attorney…. Whoever is temporarily arrested for suspicion of committing a crime shall be arraigned within 24 hours. The judge shall inform him of the reasons for his arrest, question him, and give him the opportunity to plead his defense. The judge shall immediately issue a reasoned order for his release or continued detention.”

Arab constitutional provisions regarding women’s rights are more in line with what their governments actually strive to achieve than provisions regarding other rights.

For example, Article 11 of the Egyptian constitution reads, “The state shall guarantee the proper coordination between the duties of woman toward the family and her work in society, considering her equal with man in the fields of political, social, cultural, and economic life without violation of the rules of Islamic jurisprudence.”

Iraq’s longest-lasting constitution occurred under the monarchy; it was adopted in 1925 and replaced in 1958. Under Baath rule, Iraq adopted several interim constitutions, most recently in 1990. Those constitutions included a variety of provisions that sounded wonderful but remained dead letters. For example, the 1990 constitution stated that “it is inadmissible to arrest a person, to stop him, to imprison him, or to search him, except in accordance with the rules of law… The dignity of man is safeguarded. It is inadmissible to cause any physical or psychological harm.”

A constitution is not a guarantee of a country’s practice of human rights. Those regimes with reasonably good track records, such as Kuwait, sometimes have constitutions that contain the most qualifications and limitations to human rights, while those regimes with poor records, like Syria and Algeria, sometimes have the most liberal constitutional provisions. The Yemeni constitution contains the most potent bill of rights, but it is debatable whether Yemen has the best human rights record in practice.

The Iraqi people remember all too well that the rights spelled out in their previous constitutions were not enforced. Hence, it would be unrealistic to expect them to have much faith in the interim constitution simply because of its wording.

Much more important will be the implementation. In particular, Iraqis see that all parties will be bound by the provisions of the new constitution.

The US military now faces the challenge of adopting and implementing procedures that are fully consistent with the TAL. If US practice falls short of the constitution’s principles, Iraqis may lose confidence that the political procedures spelled out in that document will determine the actual distribution of power.

Patrick Clawson is deputy director of the Washington Institute for Near East Policy