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

 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 h


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.