A constitution for Iraq
Iraq-Regional, 7/2/2005

Here follows are my distillations of the essence of what makes for the best environment for people, for an economy, and for a culture to prosper. These constitutional amendments are the physics that underlie cultural, political and economic development. These amendments form a set of equations and a system that is adaptive and optimum for producing freedom and wealth. To reap the blessings of this system, you will need to understand it, and create the tools and institutions that promote its principles. I believe that Iraq can do nothing more important for its future, then designing a proper constitution. It is this constitution that will bless you with all kinds of riches, if you protect it and nurture it. This constitution is nothing more than an engineered environment for the creation of a free and competitive marketplace for ideas where the individual has rights, and yet, it is everything.

Toward this end, a nation should have a constitution that is the supreme reference for all law. The principals contained in the constitution should be the foundations of law that are most essential, most minimal, and most clear.

The main principal of this constitution: The individual is the foundation of society, and his rights to be free to make choices in his interest in all domains, and to have equal opportunity, should be protected from the majority. This is how a diverse society can best tap the creativity and energies of its members. By acting on the individual as the essential component of the system, the system is provided maximum degrees of freedom to evolve in an optimum manner. By protecting each individual as a minority, you protect the society as a majority, and not the other way around.

The constitutional amendments for the protection of liberty:

Section 1: Government by the people, and for the people

Title: People have the right to govern themselves by themselves
1. The parliament shall be elected by the public, be the only source of legislation, the only source for allocating the budget of the government, and the only authority with complete oversight over all of the government. The parliament cannot be dissolved, and must be re-elected upon the end of its term. There shall be an independent executive branch of government, an independent judicial branch, and an independent accounting branch.
(Basis: representative democracy provides for an optimum governing system with the proper feedback loop. There is need for data, law based on the data, and implementer of the law and a judge in case of dispute. The separation of these powers serves to rationalize government's structure into entities that help to keep each other in check).

Section 2: Freedom to speak, move, and equal opportunity

Title: Freedom to speak
2. Government shall make no law abridging the freedom of speech, its creation, its transmittal, its reception, or its belief. Religion, money, peaceful assembly, associations, organizations, and petitioning the government are expressions or tools of free speech and are also to be afforded this protection.
(Basis: Information and communication are the most essential component of freedom. the most basic function of a human being is making decisions. Information is the basis for making a decision. Government should never interfere with this right. Human civilization is what it is because of the human ability for communication. Speech and its dissemination and communication are so fundamental a function, and such a strong instinct, that it is not a romantic idea, but rather a vital means which allows resources, tangible and intangible, to be allocated optimally.)

Title: Freedom to move
3. A citizen has the right to freedom of movement and residence in the country, and to move into and out of the country unhindered to any destination.
(Note: Not even sanctions should prevent people the right to go where they please)

Title: Right to equal opportunity
4. Government shall make no law that inhibits merit as the criteria of selection in the private (non-government) sector, or public (governmental) sector. A person is entitled to protection from discrimination that is not merit based.
The public sector is exempt from this amendment for a period of (to be decided, such as 50 years) from the time of the adoption of the constitution. During this first 50 years period, religious, ethnic, or other factors can be a consideration, for only the top level officials, within which, merit should still be the guiding principal.
(Basis: Merit is the best basis for the decision process. Every citizen is guaranteed equal opportunity to compete according to his ability. This amendment is also a basis to prevent law that disadvantages a person based on religious or ethnic or other basis. This clearly implies a complete separation of religion from the state.
Comment: The exception added to the public sector is a necessity required to provide for the protection of minorities, until such a time, that the constitution and the culture have built enough momentum, that it will stand a chance of surviving as a system. Initial conditions of this system, in Iraq, for example, most unfortunately, require that religion and ethnicity, to be a factor in the initial phase for the stability of the political system, so that the first vote by citizens will not be the last vote. This should only be a transitional phase however. Merit means the government having to institute systems that ensure that decisions are being made on that basis. There should be a separate law, outside "The constitutional amendments for the protection of liberty", that describes in detail the stages of this transition period to a purely merit based society.)


Title: Rule of law. Equal treatment and protection for the citizen and his family.
5. The law shall be applied and its protection shall be afforded to all citizens equally. No citizen can be stripped from his only citizenship involuntarily. Every child born to a citizen has the right to citizenship. Every spouse of a citizen is entitled to residency in the country.
(Basis: merit as the base of the system. Note: without transparency, and due process, the rule of law is tyranny. A person is entitled to have his children be citizens, and the right to choose his spouse from any country in pursuit of his happiness.)

Title: Transparency is the flip side of the rule of law
6. Government official's meetings and documents are to be made available to the public, in a speedy, convenient, and reasonable manner, to the maximum extent possible.
(Basis: Transparency allows keeping an eye on the rule of law so that the public can get information about the government so that they can make an informed decision about the government. All aspects of the government should be exposed to the public to the maximum extent possible. The government will have many pretexts for wanting to keep documents secret. These pretexts should be challenged in favor of the public to the maximum level possible.)


Section 3: Protections of the individual from the tyranny of the law

Title: Protection from the tyranny of complex law
7. A person cannot be held accountable for a law that he cannot understand or is unaware of.
(Basis: This is self-evident.
Comment: This will force legislators to create a body of law from a different perspective than what has been typically the case; and promote such laws properly. The propensity to write too many laws, obscure laws, and complex laws will be curtailed by this).

Title: Protection from the overwhelming power of the government
8. In all trials, an accused person is presumed innocent until proven guilty. He shall be informed of the nature and the cause of the accusation; to be confronted with the witnesses and facts against him; to have compulsory process for obtaining witnesses and evidence in his favor. And to have the assistance of counsel and other guarantees necessary for his defense. A person cannot be tried twice for the same offense.
(Basis: the government has overwhelming power and resources when compared to the individual. Society at emotional times is not always rational. These power and the tendencies they cause need balance.)


Title: An assured right to a trial by jury.
9. In all trials, an accused person shall have the right to a speedy and public trial by an impartial jury of his peers, or a judge if he so chooses.
(Basis: The principal here is that "the people are always sovereign", not the law or the judge. If there is a mistake that can be as the result of a bad law or a bad decision by a judge, then let that "right to make the mistake" belong to an informed jury, the public.)

Title: Right to a sphere of privacy
10. No one shall be subjected to arbitrary interference in his privacy. There is a sphere of privacy that belongs to the individual where his actions do not significantly concern society.
(Basis: Fight it out among yourself, in a civil manner, to know what kind of society you are, and want to be.)

Section 4:
Title: All rights come from the people
11. The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the government by the constitution, nor prohibited by it to the lower levels of local government, are reserved to those local governments respectively, or to the people.


Title: A rational, transparent and minimalist body of law. Educating the public.
12. Every law that is to be adopted has to have 1. The economic costs it incurs on society. 2. Benefits and return on investment it brings 3. Cost to freedom due to complexity or compliance. This information is to be associated with the law in an addendum, calculated and explained to the most explicit level possible, by the best available means possible, by the independent government accounting office.
(Basis: Government by its nature will seek to increase its own growth and control, and there needs to be a counteracting force. This is a law to force rational decision-making, and rationalize the growth of government and law. In general: Laws are by nature coercive, and the less laws the more freedom. But laws can embody relevant and needed information and procedures. The citizens need to be able to make an informed decision on how their resources are being allocated.
Comment: An important aspect of this amendment is related to government mandates. A law by a government body at a high level forced upon a lower government locality is a form of indirect taxation, and a form of restriction on liberty. Citizens need to have this information to know the true costs of the law. Indirect taxation is not good because it hides important information from the public about the true cost they suffer as a result of a tax.)

Title: The public should know the law being voted on and a chance to react to it
13. No legislation can become a law, without it first having been made public for a minimum period of 1 month, in its complete form, before it is voted on for adoption.
(Basis: Citizens or business should not be surprised by laws. Laws should be well studied and given ample time for input from those effected by the law)

Title: The public's right to vote is absolute
14. The government shall not deny or abridge a person's right to vote under any circumstance. This right includes knowing the person being voted for, for a minimum of 6 months in advance of election time. A person, aged 21 or older, has the right to nominate himself for any elected office.
(Basis: Voters have the right to be well informed about those seeking public office)

Section 5: Protecting the constitution

Title: How the constitution can be changed
15. The constitution can only be changed by approval by a four fifth majority of the parliament, and then a year later, by a referendum gaining four fifth of the public.
(Basis: Changing the constitution should be very hard. That is another reason why the constitution should be minimalist in its size, and focused on the absolute essentials)

Title: Protection of the constitution from treaty law
16. A treaty cannot override the constitution and must be compliant with it. A treaty must have an exit clause that would be effective in a period that does not exceed 1 year. Treaties must be approved by a two third majority vote of the parliament, and the approval of the president.
(Note: treaty law is imposition of outside law on citizens. It should be greatly guarded against and vented properly.)

Title: Protection of the constitution from natural biases of the executive branch.
17. Only the parliament can make a declaration of war or permit hostile action against another nation, by a majority of four fifth of parliament.
(Basis: The executive branch by its nature has a tendency (bias) to misuse war and peace issues for political advantages in the internal political affairs of the country, at the expense of the more rational domestic politics where the public tends to be well informed about issues that concern it.)

Title: A private and free economy is best manner to allocate resources while preserving freedom
18. Government shall not take private property for public use without just and full compensation. The government should not provide to citizens what the private economy can readily provide.
(Basis: Protection of private property and to a private economy from the tendencies of government to grow. The smaller the government is, the better it governs, and the better it can be governed by the people. This is an amendment upon which the private sector is given a basis in law to challenge government expansion, when the private sector can show that it can provide the same service, and for the government to privatize a public service).

Title: The constitution can only be protected if it is understood and loved
19. There will be one day a year, a formal holiday called "constitution day", in which the constitution is celebrated.
(There are difficult issues on how society ensures a qualified judiciary, by appointment or by elections, that will protect the constitution, especially in a culture that has been deprived of these rights and practice for long, if ever. These are extremely difficult issues on how to face down the passions of the public when they are aroused. Ultimately, it is an educated society that understands the benifits of such a constitution that will help protect it. The issue of judges selection, and to the supreme court needs to be well studied.)

Title: Protection of the constitution from emergency law
20. Emergency law can only be enacted by the parliament, and can be withdrawn at any time by the parliament.
(Basis: Many countries in the world, especially the Arab states, write constitutions, only to quickly make them useless by use of emergency law)

Title: Protection of the constitution from emergency law
21. There can be no amendment, or law, or emergency law, that overrides, conflicts, suspends, modifies, nullifies any of the above amendments of the constitution, including this amendment, commonly referred to as "The constitutional amendments for the protection of liberty".
(Basis: same as above)

Title: Protection of the constitution from "first-vote last-vote phenomena"
22. The articles of the above amendments of the constitution, including this amendment, commonly referred to as "The constitutional amendments for the protection of liberty", cannot be changed at all except after the passing of 20 years from the enactment of the constitution.
(Basis: you are stuck with this constitution for 20 years whether you like or not. This is one reality that needs to be understood for the chance of such a constitution to survive).

It is not everyday that nations can start again, and design their government from scratch. Good luck.

Author,
Jamil Talaat Kazoun
(See the references bellow for more writings on this subject by the same author)

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