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February 06, 2005

Against Judicial Review- in Iraq and Iran

One of the most pernicious international legacies of US constitutional ideas is the promotion of judicial review of democratic decision-making. We can see its bitter fruit being harvested in Iraq.

That the first government would be heavily dominated by Islamic ideology is almost a given. In the wake of Saddam Hussein's destruction of civil society, religion was one of the remaining bases of idenitiy, so a natural focus for party mobilization.

The problem is that the initial democratic focus is on writing a Constitution that, with judicial review, may make it impossible for secular groups, even if they win future elections, to enact secular laws. In the most extreme version of constitutional review, Shiites are suggesting:

all proposed laws should be reviewed by a 12-member constitutional committee similar to the Council of Guardians in Iran. Half the committee members would be clerics appointed by the marjaiya, and the other half would be Islamic lawyers.
Juan Cole has argued that the 1997 Iranian elections were far more democratic than those we just witnessed in Iraq. And he's right. But those Iranian elections ultimately didn't matter because those elected had no power to change the law because the Iranian constitution created judicial review by Islamic lawyers appointed to make sure every law comported with sharia.

The danger is that Iraq may end up with a nice looking constitution with a poisonous center of a constitutional court that will make any further elections irrelevent, since newly elected politicians will be barred from making substantive modifications of the law in the name of upholding "the constitution"-- meaning requirements that all laws comport with Islam.

And it will probably be nearly impossible to amend the Constitution, since in order to protect minority rights in Iraq, essentially veto power over ratification of constitutional changes are being given to sub-groups of the country. One reason judicial review doesn't matter in most countries as much as in the United States and places like Iran is that elected leaders can relatively easily override the judges. Iraq is far more likely to end up with a constitution where judges have far more expansive power because their decisions on constitutional law will not be subject to democratic override.

This is the problem with the recent Iraqi elections. If it was a first, imperfect election leading to many future ones, it would not matter. But this election is the one that writes the constitution that may make future elections largely irrelevent. This is inherently the problem with letting constitutions override future democratic election decisions.

Posted by Nathan at February 6, 2005 09:44 AM