Iraq's big day
The constitution is a sign of civilization

October 16, 2005
iranian.com

Constitution is the sign of a matured nation and a rationally affluent civilization. Prime Minister Ibrahim al-Jaafari, after casting one of the first ballots in Baghdad, called Iraq's constitutional vote as 'early' sign of civilization. A country that gave the world the meaning of a 'constitutional code' and was definitely a primary source of constitutional precedent in the 21st century is rediscovering its bond to the basic 'code of living.' It was here in Iraq that a seed structure was established which defined the essential relationship between the ruled and the rulers of mankind.

The unearthing of rules for a tidy living today for a region that was the cradle of civilization is a story of lost opportunities over millenniums. Mesopotamia is famous for the site of some of the oldest civilizations in the world. Sumerian list of gods in cuneiform script, ca. 24th century BC and writings from Mesopotamia (Uruk, modern Warka) are among the earliest known in the world, giving Mesopotamia a reputation of being the "Cradle of Civilization". David Wilkinson has proposed that economic and military-diplomatic integration of the Mesopotamian and Egyptian civilizations resulted in the creation of what he calls the "Central Civilization" around 1500 BC.

One can perhaps argue on why history and events bypassed this region after such a fertile beginning? Why a region that gave law to the world could not flourish with those laws or could not maintain the supremacy of ideas. May be the essential ingredients that Mesopotamia provided for mankind in the cradle were not the prerequisites for mankind's next leap forward. Freedom of minds and toleration of dissent are two essentials on which evolution thrives. These two were definitely in short supply; moreover, Baghdad after Mongol savagery never really regained the academic foothold that may have put it on par with other medieval renaissance cities.

There are no shortcuts to progress and enlightened living; perhaps if one region deserves to be called the 'crib of humanity,' it has to be Iraq. A region that gave the world the meaning of 'code' voted on a constitution today. Iraq is the modern name of what used to be the heartland of Mesopotamian civilization. Mesopotamia (Aramaic name being Beth-Nahrain "House of Two Rivers") is a region of Southwest Asia. Strictly speaking, it is the alluvial plain lying between the Tigris and Euphrates rivers, composing parts of Iraq and Syria. More commonly, the term includes these river plains in totality as well as the surrounding lowland territories bounded by the Arabian Desert to the west and south, the Persian Gulf to the southeast, the Zagros Mountains to the east and the Caucasus mountains to the north.

This is a day of great accomplishment. This constitution has come after heavy sacrifices. It is a new birth. Iraq definitely deserves a better future. It is so important for humanity at large to encourage this thrust of Iraq to find its rendezvous with its rich past and civilizations. The most complete and perfect extant collection of Babylonian laws, developed during the reign of Hammurabi (1792-1750 BC) of the 1st dynasty of Babylon, Hammurabi is also credited with bringing Mesopotamia again under a single rule. Hammurabi conquered southern Babylonia; he did not follow the century-old tradition of having himself deified during his lifetime. The lasting achievement of Hammurabi's rule was that the theatre of Mesopotamian history, which had been in the south from the beginning of the 3rd millennium BC, was shifted to the north, where it remained for more than 1,000 years.

The Code of Hammurabi was one of many sets of laws in the Ancient Near East. Most of these law codes, coming from similar cultures and racial groups in a relatively small geographical area, necessarily have passages that resemble each other. The later Mosaic Law also has some laws that resemble the Code of Hammurabi, as well as other law codes of the region. The code is often pointed to as the first example of the legal concept that some laws are as basic as to be beyond the ability of even a king to change. By writing the laws on stone they were immutable. This concept lives on in most modern legal systems and has given rise to the term written in stone. While the penalties of his laws may seem cruel to modern readers, the fact that he not only put into writing the laws of his kingdom, but also attempted to make them a systematic whole, is considered an important step forward in the evolution of civilization. The "innocent until proven guilty" idea comes from his laws. The background of the code is a body of Sumerian law under which civilized communities had lived for many centuries.

It consists of his legal decisions that were collected toward the end of his reign and inscribed on a diorite stela set up in Babylon's temple of Marduk, the national god of Babylonia. These 282 case laws include economic provisions (prices, tariffs, trade, and commerce), family law (marriage and divorce), as well as criminal law (assault, theft) and civil law (slavery, debt). Penalties varied according to the status of the offenders and the circumstances of the offences. Despite a few primitive survivals relating to family solidarity, district responsibility, trial by ordeal, and the lex talionis (i.e., an eye for an eye, a tooth for a tooth), the code was advanced far beyond tribal custom and recognized no blood feud, private retribution, or marriage by capture. The laws (numbered from 1 to 282, but numbers 13, and 66-99 are missing) are inscribed in Old Babylonian on an 8 foot tall stela of black diorite. It was discovered in December 1901 in Susa, Elam, what is now Khuzistan, where it had been taken as plunder by the Elamites in the 12th century BC.

In the western hemisphere, setting aside 'Justinian code', it was 3000 years later that the Magna Carta of 1215 ensured comparable liberties granted by King John in 1215 under the threat of civil war. Magna Carta in its early history became a symbol and a battle cry against oppression, each successive generation reading into it a protection of its own threatened liberties. The clause 39 of the charter of 1215, which stated that "no free man shall be . . . imprisoned or disseised [dispossessed] . . . except by the lawful judgment of his peers or by the law of the land." In the United States both the national and the state constitutions show ideas and even phrases directly traceable to Magna Carta.

One of the most famous quotations about history and the value of studying history by Spanish philosopher, George Santayana, read: "Those who cannot remember the past are condemned to repeat it." The German Philosopher Georg Wilhelm Friedrich Hegel remarked in his Philosophy of history that: "What history and experience teach us is this: that people and government never have learned anything from history or acted on principles deduced from it." This was famously paraphrased by the British statesman, Winston Churchill into: "The one thing we have learned from history is that we don't learn from history."

This is a big day for mankind. We need to appreciate that today, if approved by majority of Iraqis, the concept of secular theorists of the social contract almost reverses the process of choice. Instead of 'God' choosing his people or a tyrant usurping power, it is people through their representatives who will now be looked upon as choosing future rulers. Thomas Hobbes's state, or "Leviathan," comes into being when its individual members renounce their powers to execute the laws of nature, each for himself, and promise to turn these powers over to the sovereign -- which is created as a result of this act -- and to obey thenceforth the laws made by this sovereign. Today under this new constitution Kurds, Shiites and Sunnis are promising these powers to a sovereign state.

The country's Shiite majority -- some 60 percent of its estimated 27 million people -- and the Kurds -- another 20 percent -- largely support the approximately 140-article charter, which provides them with autonomy in the northern and southern regions where they are concentrated. However the Sunni Arab minority, which dominated the country under Saddam Hussein and forms the backbone of the insurgency, broadly opposes the draft, convinced its federalist structure will rip the country into Shiite and Kurdish mini-states in the south and north, leaving Sunnis in an impoverished heart. The hurdle for Sunni opponents to defeat the constitution is tall. They must get two-thirds "no" vote in any three of Iraq's 18 provinces. They may reach that threshold in the vast Sunni heartland of Anbar province in the west. They must snatch the two others among the provinces of Salahuddin, Ninevah or Diyala, north of Baghdad. Competition is fierce in all three, with some of the highest turnout rates in the country -- well above 66 percent.

Individuals promise to agree to accept the judgments of a common judge (the legislature) when they accede to the compact that establishes civil society. Modern constitution is living document; in its nature it ensures rights of the governed. After this, another set of promises is made -- between the members of the civil society, on the one hand, and the government, on the other. The government promises to execute its trust faithfully, leaving to the people the right to rebel in case the government breaks the terms of the contract, or, in other words, violates the constitution. Subsequent generations accept the terms of the compact by accepting the inheritance of private property that is created and protected by the compact.

In Locke's traditional constitutionalist view anyone who rejects the 'constitution' must leave the territory of the political unit and go in vacuis locis, or "empty places" -- America, in Locke's time. In today's Iraq Sunni minority has to acquiesce, it is an integral and inclusive part of the vote. The large Sunni turnout made it possible that the vote would be close or even the constitution may be rejected, and it appears so far that at least two of a required three provinces might reject it by a wide margin. Salahuddin appeared to be nearing a two-thirds "no" vote after an overwhelming showing at the polls in Tikrit, Saddam's hometown, where some election officials said 90 percent of the voters cast ballots. Each of those provinces has a Sunni Arab majority, but they also have significant Shiite or Kurdish minorities.

As of the latest counts with 'Diyala' predominantly leaning towards 'yes'one of the four key Sunni provinces holding the passing of the charter at bay, it is most likely that constitution shall be approved. Rejection seemed more unlikely based on initial vote counts in the three key provinces that Sunni Arab opponents were relying on to vote "no" to defeat the constitution.The last of those provinces, Diyala, supported the draft by 70 percent to 20 percent, with 10 percent of the ballots rejected as irregular. It is earnestly hopped that the constitution will be approved so that Iraqis can form a legitimate, representative government, tame the insurgency and enable the 150,000 U.S. troops to begin to withdraw.