A Modest Proposal: An Alternative Basis for Legitimacy in Sovereign Iraq

J. Peter Pham

With plans shifting almost as quickly as the haunting sand dunes of the country’s southwest, it does not require much to wonder about the realism of the June 30 deadline — now just two months away — for the Coalition Provisional Authority (CPA) to hand power over in Baghdad to a sovereign Iraqi government that can assure, in the words of President George W. Bush, “the essential freedoms and rights to all Iraqis regardless of gender, religion or ethnic origin — including freedom of religion, freedom of speech and assembly, the right to a fair trial and the right to choose their own representatives.” However, is assuring fundamental rights and liberties necessarily synonymous with electoral democracy? Or might the two concepts, “human rights” and “democracy,” be related but nonetheless not interchangeable in the taken-for-granted manner that the terms are often used in political discourse? If so, might rights be an alternative basis for legitimacy in a post-CPA Iraqi government, especially since recent events have underscored the fragile nature of the governing institutions there?

Of course, the president is quite correct in his assertion, made during his address at the twentieth anniversary of the National Endowment for Democracy, that “in the long run, stability cannot be purchased at the expense of liberty” and that “as long as the Middle East remains a place where freedom does not flourish, it will remain a place of stagnation, resentment, and violence ready for export.” Consequently, the ideal would indeed be an Iraq that is both free and democratic — democracy tends to favor human rights along with other favorable social and institutional conditions. However, as basic human rights are independent of democracy, in the absence or weakness of the latter, they can provide an alternative basis for legitimacy that might serve while governmental and cultural institutions are strengthened.

The distinction between democracy and human rights can be contrasted in terms of the former — insofar as it is defined as a form of government — being “instrumental,” while the latter is, in the language of philosophy, “ontological,” that is, it serves no other ends. Basic human rights, by definition, do not rely on nor accept excuses to wait for democratic approval. By being “instrumental,” democracy can and ought to support rights. However, this is a task, not a given: as Ray Takeyh points out in the current issue of The National Interest, the rise of democracies in the Middle East will likely stabilize the region, but not necessarily liberalize its societies, much less lead them to embrace U.S. policy preferences.[i] The conceptual and practical separation of democracy and human rights recognizes that each agenda has its own approaches and problems, some of which may or may not overlap. As a British crown colony, for example, Hong Kong was a free but undeniably undemocratic society in which respect for the human rights of its citizens was almost totally disconnected from their (lack of) participation in the political governance of the territory. Nonetheless that freedom, especially when compared with conditions in the neighborhood, provided legitimacy for the colonial regime, even in the absence of the democratic politics. In contrast, India is often lauded as the world’s largest democracy, as indeed it is by the nature of its constitutional arrangements. Yet the democratically-elected ruling Bharatiya Janata Party (BJP) has seen a so-called “Freedom of Religion Bill” passed in five states — and pledges to push the measure through in every state that it controls after the elections currently underway — that punishes anyone who converts another person through force, fraud or “allurement” with up to three years in prison and a fine of $2,200. Human rights groups concur in noting that the legislation is primarily designed to prevent lower caste dalits (previously known as “untouchables”) from trying to escape their oppression within the Hindu hierarchy by converting to Christianity or Islam.

The Transitional Administrative Law (TAL) adopted on March 8 by the CPA-appointed Iraqi Governing Council is perhaps the most signal accomplishment of the post-Saddam Hussein era, albeit not necessarily for its provisions for the transitional government, which are likely to be tossed out now that Washington has signaled a willingness to give wide discretion in that area to the United Nations special envoy, Lakhdar Brahimi. The TAL is unique in the region for its endorsement, threshed out in a number of articles in some detail, of the proposition that all citizens “are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion or origin, and they are equal before the law. Discrimination…on the basis of his gender, nationality, religion or origin is prohibited. Everyone has the right to life, liberty and the security of his or her person. No one may be deprived of his life or liberty, except in accordance with legal procedures. All are equal before the courts” (article 12). All things considered, this declaration alone is a revolutionary for the region. Were these promised rights to be respected, America would score a significant advance in its “forward strategy of freedom in the Middle East,” irrespective of the constitutional arrangements or composition of the government installed in Baghdad.

In many respects, the basic rights listed in the TAL — which is careful to stipulate that their “enumeration…must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people. They enjoy all the rights that befit a free people possessed of their human dignity” (article 23) — provide, in the present situation, a more secure basis for the legitimacy of any transitional Iraqi government. It is a question for democracy whether or not it might be compatible with illiberal elements, as Fareed Zakaria, among others, has eloquently pointed out.[ii] This is not a human rights issue as long as basic freedoms are assured. It is likewise a question for constitutional democracy to define who governs. This is not a question for human rights, which ought to cover everyone regardless of where political power resides. Ultimately, the morality — whether understood customarily, philosophically, religiously or ideologically — and the goals of human rights are not objects that need to — or even can— be justified democratically, although, institutionally, they might be supported by democratic checks and balances. In short, fundamental human rights are not the same as constitutional rights: they are simultaneously broader and narrower. The rights to life and property, for example, have a value that transcends cultures, having much to do with what a government is actually able to contribute or not to its realization, while having little to do with whether its form is democratic or otherwise. Strife-torn Liberia, for example, had — at least before the 1980 putsch — a functional democratic constitution that had worked more or less for over a century. The problem was that members of indigenous communities, who made up the overwhelming majority of the population, were, by statute, presumed to not be “sufficiently advanced in civilization” to be accorded participation in the democratic politics. In fact, they were not even assured title to the land they occupied.

Ideally the new Iraqi government will find its legitimacy on the basis of both its democratic character and its respect for the fundamental rights of the different peoples of Iraq. However, in the present situation where semi-anarchic conditions have pushed many ordinary Iraqis to embrace demagogues like the renegade Shia cleric Muqtada al-Sadr whom they think can bring order, an appeal to the language of human rights — especially the very foundational rights to life and security — might resonate with the reality on the ground more than abstract promises of democratic institutions down the line. It should be recalled that al-Sadr may be a firebrand, but he nonetheless has acquired a constituency, one that he built up by providing security and basic social services — what would be considered “economic and social rights” in the parlance of international human rights accords — to the impoverished Shiites of the eponymous Sadr City quarter of Baghdad and other marginalized areas. Securing the human rights that support personal freedom (or “agency,” in the language popularized by Michael Ignatieff[iii]) — including basic civil liberties, material security, and subsistence — may well be of more pressing concern to all Iraqis, whether they be Sunni Arabs living in the infamous “triangle,” Shia religious scholars the southern holy cities, or Kurdish tribesmen in the north, than who appoints who what in the transitional government. If one can see the preference of the Russian electorate for President Vladimir Putin’s promise of stability and economic growth instead of the free-for-all and stagnation of the Yeltsin years[iv] as well as comprehend the trade-off that Singaporeans have made of political diversity for unprecedented prosperity, why is it so difficult to comprehend that Iraqis at the moment might just favor the bland fare of a little order and welfare (both known qualities) rather than the proffered plat du jour of democratic politics with all its attendant divisions?     

It would, of course, be a grave mistake to remove democracy from the agenda in Iraq altogether or to delay political reforms in the Middle East. Democratic institutions can prepare and do provide channels for the protection and realization of rights. And it is literally deadly — as the people of Iraq know first hand after decades under Saddam’s brutal Ba’athist dictatorship — for any society to lack the political means to prevent abuses of power and to change governments. Nonetheless, given the lackluster results of other approaches to date, policymakers would do well to take a page from political philosophers and disentangle the confusion between the distinct concepts and projects of democracy and human rights. Unfortunately, in general American public discourse has ignored the achievements of human development under regimes that have been less than democratic on the one hand and excused cases where political democratization has been inimical to minimal liberty, security and welfare on the other. These stances are hardly the best way to foster either the protection of rights or political democratization. In fact, they often generate resistance in many countries — not the least of which Iraq in recent weeks — against what is perceived, fairly or not, as foreign interference or “cultural imperialism,” and succeed only in driving ordinary citizens into reluctant alliances with authoritarian figures. In contrast, human rights, understood in their most fundamental and basic meaning as relating to the human agency or empowerment of the individual, is a common good agreeable to peoples of different cultures and societies.

ITNI editor Nikolas Gvosdev has sparked a certain amount of discussion recently with his argument that “modernization first, democratization later.” Perhaps to make it all the more clear, the maxim might be amended to recall that the assurance of human rights — including the fundamental rights to life and security — is the precondition for modernization which, in turn, facilitates the establishment of a democratic polity. President Bush, in his speech to the National Endowment for Democracy, acknowledged that “working democracies always need time to develop.” It is beyond unrealistic to believe that the next two months or even the next twenty months (the deadline for the enactment of a permanent constitution and the installation of a new government in Iraq) would constitute sufficient time to modernize, much less democratize. It is, however, more than enough time to bind any Iraqi government through day-to-day practice, national legislation, and international treaty, to the unconditional respect for basic human rights and dignity, which, in turn, will facilitate and legitimize the arduous task of building a new democracy from scratch.             

Dr. J. Peter Pham, a former diplomat, is the author, most recently, of Liberia: Portrait of a Failed State (Reed Press).