The Brief: Law School News and Events

Iraq and Afghanistan Face Constitutional Growing Pains
 
Sima Samar, chair of the Afghanistan Independent Human Rights Commission, voices concern about the rights of the disadvantaged and minority groups in her country and disagrees about the elimination of provisions to protect them. She spoke at a law school conference concerning the establishment of rule of law in Afghanistan and Iraq. There was a split over whether their constitutions should address specific real-time issues or set forth general principles.

Academics, activists and diplomats gathered at Penn Law School last September to discuss efforts to establish rule of law in Iraq and Afghanistan, engaging in debates that will seem familiar to Americans: Should the constitution address specific challenges of the day, or set forth general principles that are subject to change over time?

Both views were aired at the conference sponsored by the Penn Law ACE Rule of Law Fund. During the conference, panelists provided an overview of the new political regimes and discussed a range of challenges including territorial disputes, ideological differences, and law enforcement.

Rend Al-Rahim, co-founder and executive director of the Iraq Foundation, supported constitutional specificity. She said unless Iraq rectifies a constitution that was written "too quickly" and "under great pressure," the forecast over the next decade is bleak.

"It has created a constitution that I would call imbalanced, misleading, vague, and certainly with the architecture of the constitution, nobody stood back and looked at the constitution to see whether all the pieces fit together," declared Al-Rahim in her opening remarks.

The Iraqi constitution was drafted by an interim parliament made up of Kurdish and Shia Islam representatives in 2005, which, according to Al-Rahim, ignored the input of Sunni Muslims.

In order to avoid a Sunni veto, the parliament added an article that allowed amendments for up to four months after ratification, she said.

"In other words, the framers of the constitution themselves recognized that this constitution was woefully inadequate," Al-Rahim said. "Because of the haste and the lack of clarity, several important issues were deferred," she added, referring to the role of the federal government in taxation and territorial disputes.

"Language is elastic," rejoined Haider Ala Hamoudi, an associate professor of law at University of Pittsburgh Law School.

"Understandings change over time, and that flexibility in language and what is considered vague in a constitution, in some ways, is beneficial. And to the extent that one takes constitutional practice as an essential and elemental part of constitutionalism, the power to tax or the power to issue paper money in the Iraqi context and the American context are relatively the same."

Hamoudi adopts what he calls a "realist approach" to the Iraqi constitution, where ambiguity is an opportunity for adaptation.

However, Sima Samar, chair of the Afghanistan Independent Human Rights Commission, argued that ambiguity fails to protect equality in post-conflict countries. Samar led efforts to write protections for disadvantaged and minority groups into the Afghan constitution, and though those provisions were eliminated from the final document, she remains confident that they are vital to forming a durable democratic constitution supported by the public.

"Please do not repeat the mistakes that have been done in Iraq and Afghanistan in constitutional building," Samar pleaded. "I think the most important part is to build the confidence of the public to the constitution. The second principle in my view is that we should not (respect) the culture and the religion of the country and then leave the principles of human rights and equality out of the constitution."