Democracy in Iraq
Democracy in Iraq
When President George Bush announced ten days ago that â€œthe survival of liberty in our land increasingly depends on the success of liberty in other lands,â€ he drew upon a notion with deeper roots in the history of political thought than perhaps he was aware. This notion, the neo-roman theory of freedom, states that individual liberty is constrained not merely by force or the threat of it, but by â€œa condition of dependenceâ€â€”which â€œis in itself a source and form of constraint.â€^1 That is to say that â€œit is the mere /possibility/ of your being subjected with impunity to arbitrary coercion, not the /fact/ of your being coerced, that takes away your liberty and reduces you to the condition of a slave.â€^2 It is accordingly only possible for an individual to be truly free in a
An indelible moment
â€œAn Indelible Moment,â€ is one among several hundred articles that have littered our collective imagination during the past weeks. Printed yesterday as expatriate ballots were cast, it is the Washington Postâ€™s attempt to consummate the marriage of Iraqi-democracy.
There was much to reconcile, many mixed emotions. This moment had been purchased with a lot of blood. But even in the fog of war and the sadness of exile and the blindness of faith there are truths that cannot be denied, that everyone can agree upon. Hayder Alhamdani selected one of these simple, resonant truths for this moment.
â€œThis,â€ he said quietly, â€œis the first time in my life.â€ He let go of his ballot. He cast his ballot.
All day yesterday, voters held up their purple fingers in triumph. It was a new victory sign, maybe someday a peace sign, they hoped. It befitted the low-tech, hands-on feel of this electionâ€”democracy at its most basic and emotionally powerful. Democracy had marked them, touched them physically, and they hoped it would last forever.^3
In todayâ€™s Los Angeles Times, this story took the form of an Iraqi expatriate familyâ€™s interstate â€œdrive for democracy,â€ while in the Boston Globe it is a â€œhistoric event.â€^4 The
But the occasion is not only one of joy. Dahr Jamail reported to Amy Goodman and Juan Gonzales only hours prior to the indelible moment that things in
Well, there have been ongoing attacks on polling stations, just in the last 24 hours in
The official response has been the elimination of all non-official cell and satellite phone services, the banning of all civilian use of cars. Thus Dahr Jamail and Brian Dominick document the unease that surrounds the event.
â€œWe are not against elections,â€ said Saif, an 18-year-old Shiite biology student at
Such views, incidentally, altogether contradict the principle championed by all
But what about the specifics of this exercise in political freedom? Dahr writes that â€œmore than 7,000 candidates on the electoral lists have opted to remain anonymous prior to polling day.â€
Even determining how many lists of candidates will actually appear on the January 30 ballot is an elusive task, with the Independent Commission originally reporting 83, the UN claiming 256 during a ceremonial ordering of the ballot on December 20, and the Iraqi Independent Commission spokesperson putting the number at 111 during the recent IRIN interview.^9
Unsurprisingly, then, Abu Sabah, a grocery stall owner near the Karrada district of Baghdad, asks
Who says we should have elections for people we don't even know during occupation, martial law and in a war zone? And why vote when we're expected to vote for an entire list of candidates when we only know, if we're lucky, one or two of their names?^9
He is not alone.
â€œI have seen the lists, and I don't know any of them,â€ said Mustafa, a 20-year-old physics student at
Prof. Shawket Daoud, a computer science specialist who now works for the government, said uncertainty over polling booths and the fear of violence was not the only problem. â€Why vote when we don't even know who is running yet?â€ ^11
Nonetheless, the Washington Post tells us, â€œDemocracy had marked them, touched them physically, and they hoped it would last forever.â€
This is what democracy feels like
This is not to imply that news coverage of the elections has been devoid of its adversarial trademark. In the New York Times, scrutiny is directed at the notion that Iraqis are ready for democracy.
But questions over the election go far beyond the American stewardship, to issues that touch on whether it was ever wise or realistic to think that Jeffersonian-style democracy, with its elaborate checks on power and guarantees for minority rights, could be implanted, at least so rapidly, in a country and a region that has little experience with anything but winner-take-all politics.^12
Our media elsewhere provided much to substantiate this, as the reporting of an American election worker shows.
There were a lot of misconceptions. I explained, for instance, that the majority rules, but minorities are protected. This is new to Iraqis. People who have been spoon-fed everything for many years have trouble knowing what freedom involves. ^13
Indeed, many Iraqis seem to have some trouble knowing what freedom involves.
â€œThe elections cannot be legitimate because we are under occupation, so I will not be voting, nor will any of my friends,â€ said Layla Hamad, a Shiite shop owner.
â€œIt's not a matter of elections, because those in power will stay in power,â€ commented Suhaid, a 23-year old Shiite who is an unemployed computer science engineer. â€œThis is a big lie and the elections are illegitimate.â€
Asked if he expected to vote, Saif promptly responded: â€œEven though the elections will happen, they will not be legitimate, and they will be a disaster. Anybody elected will be a puppet of Bush.â€^14
To understand â€œwhat freedom involvesâ€ let us first understand what it does not involve. The vote today is not a vote on how to manage and distribute the countryâ€™s vast resources, on how to go about bringing the occupying power to justice for unremitting war crimes, or even on whether to continue to host an army that continues to rape its lands and murder its citizens. â€œDemocracy at its most basic and emotionally powerful,â€ as the Washington Post called it, instead means choosing from a list of unknown names. Following a narrated account that one is hard put to call anything other than pornographic, the Washington Post announces that â€œthis is what democracy feels like.â€ Unfortunately, â€œwhat democracy feels likeâ€ to Iraqis during the rest of the day and night is the collective punishment essential to any occupation: curfews, other restrictions or bans on public gatherings, road blocks
But these are all justifiably small considerations beside the emergence of democracy and its initiation of the constitutional processes. The New York Times is nonetheless quite right to write somewhat dubiously of implanted Jeffersonian checks on power in
Before the law
On the same thread, let us turn from the possible subversions of the constitutional process (however probable) to the constitutional process itself, as embodied in the letter of the law. Surely this process, whose results will endure the subversions of the coming months and years, is worth their price; temporary coercions are a small cost to pay for freedom. The freedom to be delivered by the constitutional process is outlined by the Transitional Administrative Law (TAL). The initial step towards freedom will come in the form of the Iraqi Transitional Government (ITG) will be composed of a independent judiciary, the National Assembly (to be elected today), which will elect a three-person Presidency Council, which in turn appoints a Prime Minister and Council of Ministers. On behalf of The Washington Institute for Near East Policy, the senior intelligence analyst for Iraq at U.S. Central Command writes,
The ITGâ€™s most important task in governance will be its efforts to restore security and stability in Iraq. As time goes on, the challenges involved in thwarting the insurgency will only increase. The struggle to establish competent Iraqi security forces will continue to be a critical task for the government.^18
How diligently the ITG will execute the bidding of Washington is uncertain.
Within the ITG, the potential use of these forces could become controversial. Considering its dispersal of power and its checks and balances between various branches, the ITG will likely not be as decisive as the IIG has been. The role of Coalition forces in fighting the insurgency will be another key component of ITG debate. Many in Iraqâ€™s political elite are probably uncomfortable with the Coalitionâ€™s strength and pervasive presence, despite the central role that Coalition forces play in maintaining security. Some of Iraqâ€™s emerging political class may be vocal in advocating limits on Coalition activity or continued deployments inside Iraqâ€”either as a matter of policy or as populist political theater.^19
Iraqis, through the ITG, would seem to be given by the constitutional process the legal mandate to challenge the policies of its occupiers. However, â€œIn the ITG, the judiciary will emerge as a prominent player in national politics.â€
As the interpreter of the TAL, the judiciary occupies a potentially powerful position to intervene in the transition process. The supreme court, in particular, has the power to challenge virtually any decision that it believes to contravene the TAL. In deciding what legal questions it will examine, the court largely formulates its own rules. Rather than wait for formal legal complaints to wind their way through a hierarchical court system, the supreme court theoretically has broad authority to identify and act upon issues it deems relevant to the interpretation of the TAL. This sort of independence, and the ability to block legislative and executive actions, represents a new and unusual feature of Iraqi politics in general, and specifically for judges.^20
The â€œability to block legislative and executive actions,â€ it should go without saying, is legal answer to anything the National Assembly or its elected representatives might have to say about the war being waged by US army on the people of Iraq or anything else. Who are the members of the judiciary? Article 43(b) of the Transitional Administrative Law provides the answer.
All judges sitting in their respective courts as of 1 July 2004 will continue in office thereafter, unless removed from office pursuant to this Law.
The branch of government, then, that â€œindependent voiceâ€ that â€œlargely formulates its own rulesâ€ having unlimited â€œability to block legislative and executive actionsâ€ is the same arm of justice that was installed by and administered the occupation by a foreign power. Among such â€œlegislative and executive actionsâ€ are those that will have lasting effects.
An example of a potentially significant intervention is the courtâ€™s authority to â€œforceâ€ forward a failing constitutional drafting or ratification process. Such an independent authority did not exist during the negotiation and signing of the TAL, which was delayed for several days past its deadline when last-minute objections were raised and debated. The informality of the 15 November Agreement established no authorities and named no penalties for this delay. Under the TAL, however, supreme court judges faced with similar delays in drafting the permanent constitution would be duty-bound to trigger the painful provisions of dissolving the government and starting again.^21
The effect should be clear: all legislation, including the constitution of the Iraqi state itself will be those acceptable to the occupying power. As President Bush indicated when he said that the fate of our freedom is contingent upon freedom abroad (implying that the mere possibility of unfreedom anywhere threatens freedom everywhere), the issue here is not decisive action on the part of the judiciary, but the /possibility/ of such action. In other words, it may well come to be that in the next months and years, the judiciary will not exercise the extent of the power allotted to it. But the mere possibility of the exercise of such power, in the law, will provide a (US imposed) corrective effect upon the actions of the Iraqi Transitional Government, and all Iraqi governments thereafter. Arbitrary coercions thereby do not merely subvert the law; they are written into the law. One can only conclude that â€œthe rule of law and an independent judiciary,â€ will in Iraq continue to be â€œconcepts that have been alienâ€â€”which is to say imposed from the outside, by the representatives of the United States of America.
Postscript: on criminal justice in Iraq at the present time
The fact remains that what has been said up to this point of the Transitional Administrative Law (TAL) and the judicial provisions that it extends are removed from current, everyday realities in Iraq. Nonetheless, the indefinite extension of these provisions gives every indication that /what is/ will be /what remains/. Whatever we can determine of criminal justice in Iraq up to the present time tells us, then, what is likely to remain. We begin with Dahr Jamailâ€™s interview of Lilu Hammed late last May.
Sitting alone on the hard packed dirt in his white dishdasha, his head scarf languidly flapping in the dry, hot wind, Lilu Hammed stared unwaveringly at the high walls of the nearby prison as if he were attempting to see his 32 year-old son Abbas through the concrete walls. When my interpreter Abu Talat asked if he would speak with us, several seconds passed before Lilu slowly turned his head and said simply, â€œI am sitting here on the ground waiting for God's help.â€ His son, never charged with an offense, had by then been in Abu Ghraib for 6 months following a raid on his home which produced no weapons. Lilu held a crumpled visitation permission slip that he had just obtained, promising a reunion with his sonâ€¦three months away, on the 18th of August. Along with every other person I interviewed there, Lilu had found consolation neither in the recent court martial, nor in the release of a few hundred prisoners. â€œThis court-martial is nonsense. They said that Iraqis could come to the trial, but they could not. It was a false trial.â€^22
An ACLU press release this past Monday indicates that any torture that Lilu Hammedâ€™s son may have encounteredâ€”let alone the detention which made him vulnerable to tortureâ€”has been systematically abandoned and uninvestigated by US army authorities. ^23 Torture in the report is characterized â€œas acceptable practiceâ€ if not â€œstandard operating procedure.â€ A ninety-four page Human Rights Watch Report published the next day investigated the functioning of Iraqi institutions of criminal justice. It found
The systematic use of arbitrary arrest, prolonged pre-trial detention without judicial review, torture and ill-treatment of detainees, denial of access by families and lawyers to detainees, improper treatment of detained children, and abysmal conditions in pre-trial detention facilities. ^24
The report found that the prolonged detention of Lilu Hammedâ€™s son is not the exception the Iraqi Code of Criminal Procedure (CCP), which requires a defendant to be brought before an investigating judge within twenty-four hours of his or her arrest; rather, such prolonged detentions constitute â€œthe vast majorityâ€ of cases. This is in contradiction to the TAL, which stipulates that all Iraqi citizens are equal before the law, and that their rights to freedom from arbitrary arrest, unlawful detention, unfair trials, and torture are protected by law. Human Rights Watch adds that â€œthere are a number of protections in the CCP that, if implemented, would contribute to the better protection of persons deprived of their liberty.â€ The failure to implement such lawsâ€”again, the rule rather than the exceptionâ€”tells something of the judicial institutions charged with this task. According to Human Rights Watch, this rule of lawlessness has been used to target local journalists and members of rival political parties. The following testimony, taken from Ali, a 29 year-old suspected dissident, typifies that which comprises the report.
When we entered the headquarters, the [Iraqi] officer told us to kneel before him. We were hit on the back of our necks with a rifle butt. Then they took us upstairs to the first floor and told us to face the wall and began beating us severely. The Americans were there, standing some five or six meters away. They just stood and watched. I was beaten with a wooden stick on my forehead, and all of us were beaten over the body with cables and hosepipes. That happened even before the interrogation had begun.
Then they put us in a cell measuring three by four meters. Altogether we were sixty-three in that room, all crammed together. Some of the others in the cell had also been tortured. One of them, a farmer from al-Najaf called Khalid, had had his fingernails extracted and on of his arms broken. Most were adults but there were also several children, between fifteen and seventeen [years old]. We were given no food for the first day and a half. The guards told us if we wanted to eat we would have to buy our own food.
When a formal complaint was recently lodged in response to one such interrogation, Chief Investigative Judge Zuhair al-Maliki issued a series of summons requiring several officials to appear in court to answer questions relating to the arrests.
The Ministry of Interiorâ€™s legal spokesperson, the Minister of Interior Falah al-Naqib, and the Iraqi National Intelligence Service director, Major General Muhammad Abdullah al-Shahwani, did not answer summons issued to them. On October 18, 2004, Judge Zuhair al-Maliki was removed from his post as the Central Criminal Courtâ€™s chief investigative judge and transferred to another post.
Such is the political process out of which today, quietly, democracy was born in Iraq.
(1) Liberty before Liberalism, Quentin Skinner, p. 84.
(2) Ibid.p. 72, emphasis mine.
(3) â€œAn Indelible Moment,â€ Washington Post, David Montgomery, January 29, 2005.
(4) â€œFor many expatriates, casting ballots brings jubilation, expectations,â€ Boston Globe, Suleiman al-Khalidi, January 29, 2005.
(5) â€œFirst Steps Toward Democracy,â€ Baltimore Sun, Jonathan Pitts, January 29, 2005.
(6) â€œHeavy Bloodshed in Iraq Only Expected to Worsen on Election Day,â€ Democracy Now! Amy Goodman, Juan Gonzales, and Dahr Jamail, January 28th, 2005.
(7) â€œIraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos,â€ The NewsStandard, Dahr Jamail and Brian Dominick, January 18, 2005
(8) â€œAs Election Nears, Iraqis Remain Sharply Divided on Its Value,â€ New York Times, Jeffrey Gettleman, January 23. Jassim, a grocery store owner in the district of Khadimiya, responds that â€œit is only the political parties that are using this talk. And it seems as though there are those who would like to cause a divide. But it will never happen, because we have never had this divide,â€ in â€œWhat Iraqis Think of the Elections,â€ Islam Online, Dahr Jamail, January 25, 2005.
(9) â€œIraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos,â€ Jamail and Dominick.
(11) â€œVote Where, How, and for Whom?â€ Inter Press Service, Dahr Jamail, January 26, 2005.
(12) â€œThe Vote, and Democracy Itself, Leave Anxious Iraqis Divided,â€ New York Times, John Burns, January 30, 2005.
(13) â€œFirst Steps Toward Democracy,â€ Baltimore Sun, Jonathan Pitts, January 29, 2005.
(14) â€œIraqis Discuss Voting, Or Not, in Elections Held Amidst Chaos,â€ Jamail and Dominick.
(15) â€œI donâ€™t know why I was arrested,â€ explained Ahmed, a 38 year-old farmer, who discussed his journey through the military detention system for 10 months that began during a home raid on August 13th, 2003, and which found him experiencing treatment like having mock executions, being bound and having his head covered for days on end, and being held at a camp near Basra in the scorching summer temperatures. â€œAt that camp they hung a sign where we stated that said, The Zoo,â€ he explained. He claims that his home and fields were searched and no weapons were found. During his detention he witnessed the sexual humiliation of fellow prisoners and regular beatings, â€œCollective Punishment,â€ Dahr Jamail, January 14, 2005.
(16) El Tiempo, July 31, 2001.
(17) â€œThe Vote, and Democracy Itself, Leave Anxious Iraqis Divided,â€ New York Times, John Burns, January 30, 2005
(18) â€œIraq: Outlook for National Elections and Governance
(19) Ibid., p. 27.
(20) Ibid., p. 28-9.
(21) Ibid., p. 29.
(22) â€œIraq: The Devastation
(23) â€œNewly Released Investigative Files Provide Further Evidence Soldiers Not Held Accountable for Abuse,â€ American Civil Liberties Union, January 24, 2005
(24) â€œIraq: Torture Continues at the Hands of New Government,â€ Human Rights Watch, January 25, 2005.
Posted by Omar_Khan at January 30, 2005 09:33 PM
More writing, photos and commentary at http://dahrjamailiraq.com