Comments on a constitution for Iraq, part 3
Iraq, 8/27/2005

Tomorrow, the Iraqi political factions will be discussing the draft constitution, in what maybe the day that they will be able to settle their differences. At such a critical time to Iraq, it is worth going over some issues one more time.

In the "A constitution for Iraq" story, I had elements that should be in the Iraqi constitution: "A person cannot be held accountable for a law that he cannot understand or is unaware of."

Such an amendment, is a complete and radical departure from common law and practice, in every country that I am aware of, and therefore, it would seem like it would be a bad idea to include in a constitution. After all, will not every citizen claim, when accused in a court of law, say that they were "unaware of the law" when they committed a criminal act? Or will they not claim that if they were aware of the law, they "did not understand it?" These are legitimate questions that need to be looked at.

But, perhaps to cut through all the clutter, I will answer these questions differently. The number of pages in the tax code of the IRS (Internal Revenue Service) in the United States is about 55,000 pages as cited by the CATO institute citing tax publisher CCH. These 55,000 pages, as many would say, are not even understood by many specialists within the IRS itself. These are experts, lawyers and specialists in their fields, with years of education and experience in the subject, yet, they themselves do not understand these laws. Yet they are laws that are enforceable upon the citizen. Is it fair to expect, the individual citizen, to be liable for such a system? When the individual does not even know what the laws are? Or even if he/she did, they don't understand them? There is something very self-evident about this proposition, that a person should not be held liable for a law that he is unaware of or does not understand. Nothing could be more self-evident.

Yet, the question becomes: well, the government needs taxes, so how do you deal with that. That is not the principal here that is being discussed, but nonetheless, this is where the beauty of such a constitutional amendment shows its effect. What this amendment does, is to radically restructure the nature of how laws are passed, and acted upon. In this case, one simple answer would be to have the specialist who deals with this subject, the certified accountant, assume the responsibility. The certified accountant has the knowledge of the tax law, and that is why he is certified. By handing my taxes to him, to the accountant's satisfaction, I have done all my obligations. I pay the accountant, and the accountant does his job, After all, that is why he is certified. Otherwise, why certify him? End of story.

This is one way you deal with such complexity, if and when it is needed. Now, the only remaining task is to inform the citizens of this new law that would be passed that would say "by hiring a certified accountant to do your taxes, you would have met your legal obligations to being compliant with the tax law." So, the government's job becomes to inform the public of this new law. They can mail this new law, one sentence-long law, to every citizen. They can further have the citizen need to respond to the mailing by checking a box that says "I have read the law, and I understand it." Or "I am unable to understand the law," and mail it back. The person may not have enough education to understand this simple law, which would indicated a failure of the education system to produce a citizen with a minimal set of capabilities, which in this case, it would certainly not be the fault of the citizen, and focus would need to be addressed in this regard. The person can be mentally handicapped, which in this case, there would be need to deal with this issue.

Speaking of mentally handicapped persons. What if a person is handicapped with a mental age of a 7-year-old person. Would you imprison this person if he broke the law, not understanding the law? Would you imprison a 7-year-old boy who broke the law without an understanding of his action? Then what is the difference between a 7-yeard-old's knowledge about a law, and that of an adult who nothing about the tax law. If you are 33 -years old without a knowledge of the tax law, then you are in effect a child about this subject. What is the difference? Is it right to hold a citizen accountable to such laws? Is this freedom of the individual and liberty or is this hidden servitude and oppression of the individual?

These concepts may sound outlandish at first. But there is nothing outlandish about this idea. If someone says they cannot understand the law, then he may need to be further educated about this. The law should not be more complex than the people's understanding. If such a law is needed, then such a law should be specific to a specialized profession, for examples the certified accountants (relating to tax law), the civil engineer (concerning the design of a building that I paid the engineer to design and it collapsed, and I am being sued and held liable for, etc.). I don't know, and I don't want to know about tax laws and civil engineering laws, or other such complex laws. I want to be able to hire a certified qualified person to do his/her job, and that is the end of all my worries. This is freedom. Freedom from fear of the government, from unfounded liability and litigation. Freedom that is most precious, freedom of the mind from worry. That is freedom and liberty from the tyranny of government in undeveloped as well as in developed societies.

Such a manner of thinking about laws, is a radical way of looking at this issue. But this is the proper way. Looking at laws in this manner will force a new mechanisms and ideas about how laws should be enacted and disseminated.

There is something fundamentally wrong with the way societies today go about writing laws and enforcing them. This amendment, is self-evident in its correctness. The mere fact that a society will have to learn a whole new way of doing things is not a defense for continuing to do something that is very wrong.

Since Iraq is starting all-over from scratch, it might as well force itself to do things right, and to learn good habits. It was the Code of Hammurabi, of old Iraq, that got much fame for setting new standards. There is no reason why Iraq cannot do this again.

Iraq does not deserve a constitution that as good as there is in the Arab states, or one that is as good as those of Europe or the United states. Iraq deserves even better. It would be a shame if those who understand these ideals do not act to make sure this becomes a reality.

Author,
Jamil Talaat Kazoun

Previous Stories:
  Comments on a constitution for Iraq, part 2   (8/27/2005)
  Comments on a constitution for Iraq, part 1   (8/27/2005)
  Iraqis have learned little from the past   (8/26/2005)
  A constitution for Iraq   (7/2/2005)

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