The benefits and pitfalls of constitution-making in Iraq

...For those steeped in the tradition of Tom Paine, Thomas Jefferson, and James Madison, constitutional authorship is perhaps the most significant dimension of popular sovereignty...

...But the same experts also considered the idea of caucuses to be a sham and did not wish to reinforce this or any other undemocratic solution...

...Note that al-Sistani's demand was for democratic elections for a constituent assembly whose product would be ratified in a referendum, the classic European populist democratic formula for the exercise of sovereign constituent power since 1793 and not the American model of 1787...

...Now that we have experienced all the negative consequences and side effects of this unjust war, there may be time to produce some results beneficial to human freedom...

...It was also a deeply irrational war from the "realist" perspective, that is, the standard doctrines of containment and deterrence...

...But, the Shia clerics would have to be asleep to allow all this to happen, and so far they have distinguished themselves mostly by sober vigilance...

...Thus the idea of a I RAO roundtable or a national conference appeared almost naturally in this discussion as a way for the Iraqis themselves to come to agree upon their own formula for a provisional government and the transfer of sovereignty...

...elections), its Shiite leadership will have greater legitimacy than did the CPA and the GC, the authors of the interim constitution...

...Thus, having found no WMDs, the American occupiers now claim to be committed to the "democratization" of Iraq, the only remaining justification for their war...

...If this is not the case, there is still the most fateful and dangerous possibility...

...Moreover, he managed to present the whole controversy as a battle not between imposition and pluralism but as a fight between two impositions: the CPA's constitutional draft or the incorporation of the Sharia into civil law, an issue that the Shiite members handed to him on a silver platter...

...Finally, as a sop to alSistani, it promised elections in 2005 for a constitutional convention that would draft the permanent constitution...

...With it nothing can be changed...

...Al-Sistani repeatedly and energetically de*So I suggested after his lecture late October 2003 at NYU Law School to Noah Feldman, previously an expert adviser of the CPA on constitutional matters, who up till then did not seem to be aware of this method that could obviously serve as a potential compromise between the CPA's top down model and Sistani's populist democratic demand...

...28 n DISSENT / Spring 2004...

...Our own pattern of constitution-making since the Massachusetts Convention of 1780 and the Federal Convention of 1787 is nonsovereign...

...If the Bush administration refuses to learn from past experience in this domain, we cannot afford to do the same...

...By going to Iraq, the UN actually faced a trap because the Americans wanted the secretary general to tell al-Sistani that early elections were not possible, a position that converged with the opinion of UN experts...

...My position was that the C PA/GC agreement was half right to incorporate the idea of an interim constitution, but half wrong because that interim constitution would be imposed, unamendable, and likely to become the permanent constitution...

...If the CPA and its partner, the Governing Council, do manage to impose a rule in the interim constitution whereby the permanent document can be vetoed by as IRAQ few as one in nine voters, Iraq will be on the road to civil war soon after free elections are held...

...Unfortunately, the UN mission made one big mistake...

...If he had theocratic goals (and I don't think he does), DISSENT / Spring 2004 n 25 IRAQ there is nothing in a piece of paper authorized by no one apart from the Americans to bind him to seek any other goals...

...The new forces were too weak, and the moral prestige of the remnants of the Baath too low to arrange negotiations between them...

...One should also have learned from the examples of successful transition in Eastern Europe, where lustration and "de-communization" were kept to a minimum...

...Moreover, he and his followers denounced the idea of a security arrangement made by a non-sovereign agency, the GC...

...Like the CPs and the NP in South Africa, the GC has its own reformist plans it would like to impose, but its legitimacy is too weak and society is too divided for it to do that...

...Once a constituent convention is elected, before December 31 (but after the U.S...

...and DISSENT / Spring 2004 n 21 IRAQ so on...

...Like the American convention model, the roundtables claimed no sovereign powers...

...While observing legal continuity, agreements of the roundtable would draft skeletal or full interim constitutions that would typically be forced through as constitutional amendments by the ruling party in its dominated legislature...

...What about the facts on the ground in Iraq now...

...The trouble is that the two major Iraqi players, the GC and al-Sistani, have no immediate interest in including anyone else in a bargaining process...

...Thus the concessions to al-Sistani that he won in a formidable political battle after his fatwah of June 2003, involving relatively early elections for a constitutional assembly, may not amount to anything...

...Nevertheless, the Americans were not alone in opposing populist democratic constitutionmaking: this prospect is alarming to many Iraqi groups...

...Also very serious, though undisputed for now, is the amendment rule of the interim constitution, permitting revisions only after the election of the National (constitutional) Assembly in December or January, and then only with three-quarters of the votes, and agreement of all three members of the presidential council (Shia, Sunni, and Kurd), in effect, absolute consensus...

...Because populist democracy entails an unbound assembly (representing the "constituent power"), restrained by no prior rules, nor by any separation of powers...

...However, after the Americans established a fully dependent, proxy government, the Governing Council, and the ministries based on this organ, the situation changed...

...The convention will then have both the power and the authority to transform itself into a "runaway convention" (like that of Juan PerOn in Argentina in 1948 or Hugo Chavez recently in Venezuela), claim sovereign powers, and pass any constitution it wishes, including new rules of ratification, most likely with minority protection and a form of federalism thoroughly unsatisfactory to the Sunni Arabs and Kurds...

...But even that time span is uncertain, because of the lacuna left by the UN report, one that the interim constitution apparently did not dare to fill: the structure of the provisional government and the process by which it will be selected...

...The projected road therefore is one of heavy 26 n DISSENT / Spring 2004 conflict and contestation, all the more so because there has been zero effort to involve a political arm of the neo-Baathist insurgency or any other credible Sunni partner in the process...

...It quickly became apparent, however, after they had marshalled immense forces on the streets of Najaf and Baghdad to protest against the American imposition of its caucus system, that the feasibility and timing of elections needed to be discussed...

...They also insist that their main goal now is to return and shore up Iraqi sovereignty...

...During the early phase of the Iraqi political process this negotiation formula seemed unlikely to work...

...And if this happens the latter will certainly fight, with the remaining American troops facing the possibility of a new Lebanon...

...But the Bush administration was so hostile to "multilateralism" and to international institutions that it tried to go it alone, with predictable consequences...

...leaders of the majority can press for the establishment of their preferred political models with impunity...

...The right way would have been the production of the interim constitution through an uncoerced agreement and solemn promise of all major stakeholders...

...There is no institutional mechanism that could provide an IRAQ incentive to compromise...

...Quite astonishingly, the draft contains a ratification rule, whereby the permanent document produced by a freely elected assembly can be vetoed by the voice of the twothirds of the voters of three provinces or governorates...

...And it is indeed unlikely for an assembly of this sort to practice self-limitation...

...The epoch of colonial experiments in the "education" or "civilization" of nonwhite populations, however, is past...

...This is an ominous remark, because the interim constitution is in effect unamendable...

...the writing of an unamendable interim constitution by the Governing Council that would provide, among other things, for a provisional legislature indirectly picked through "caucuses" by the CPA and the GC...

...While legal continuity with Saddam's regime is gone, there has been a kind of legal order in place under a military dictatorship over the last year, which promotes DISSENT / Spring 2004 n 23 IRAQ some forms of liberalization, such as freedom of the press and the formation of political and nonpolitical associations...

...there will be no agency capable of forcing a freely elected constituent assembly (because that is what it will be, not a convention) to adhere to its provisions...

...ANDREW ARATO is the Dorothy Hart Hirshon Professor in Political and Social Theory at the Graduate Faculty of the New School University and a member of the USIP/UNDP Workshop on Constitution Making, Conflict Resolution and Peace Building...

...But what the current American administrators offered is an imposed constitution, customary under enlightened despotisms seeking to become constitutional monarchies or colonial administrations and dictatorships like that of Chile's Augusto Pinochet in 1980 seeking legal rational legitimacy...

...This is to be followed by a general referendum on the constitution approved by the constituent assembly...

...Bushites care more about attractive rights enshrined on paper now than the reality of those rights after free elections later...

...Additionally, this law places obstacles in the path of reaching a permanent constitution for the country that maintains its unity and the rights of its sons of all ethnicities and sects...

...HAVING RENOUNCED nation-building as a task for our armed forces, it was amazing that the Bush administration did not draw on the authority and expertise of the UN...

...Public discussions by scholars and intellectuals, bringing in both UN experts and relatively enlightened political figures from both American parties, seems the best strategy for this task...

...Of course such an agreement would have taken time, and time is what the Bush government does not have in this election year...

...It could thus refer to two things...

...In these cases, and in the United States and Latin America ever since, the term "constitutional convention" refers to an elected body, or a body of delegates from elected assemblies, that co-exists with regular legislatures...

...Because the American people have so many other reasons to vote against George W. Bush and his Republicans, we don't have to indulge in misplaced schadenfreude—guilty pleasure in the failure of democratization in Iraq—which would weaken the Bush administration...

...Let us consider why al-Sistani finally gave in, or pretended to do so, and allowed the signing to proceed...

...An important opportunity was lost, because in comprehensive negotiations more realistic points of compromise could have been found and then underwritten by binding promises...

...elections...

...24 n DISSENT / Spring 2004 flounced the agreement and stood firm for free elections, as opposed to the co-opted caucuses that the Americans intended, for the first sovereign Iraqi assembly...

...In line with the wishes of all concerned, "sovereignty" would be transferred to an as yet undetermined provisional government by June 30...

...There should have been a way to make an interim constitution more legitimate, in the pluralistic (if not democratic) sense of including the major groups of society in the negotiating process...

...The interim constitution still does not contain a formula for the provisional executive to which the Americans will transfer authority by June 31...

...But we fear that success may help justify and, worse, reelect the perpetrators of the unjust war, thereby creating a dangerous precedent...

...We on the other side who are not similarly afflicted should do all we can to promote the alternative that will lead to a better Iraq...

...Unlike the convention model, they were legally private gatherings that did not in any way affect the legal continuity of old regimes that were nevertheless replaced by new ones...

...It too, has a foreign sponsor, anxious for a settlement for its own political reasons...

...Much less clearly it calls for a "focused dialogue" between the GC, "Iraqis outside the political process" (al-Sistani, but who else...

...Without such an amendment rule, a freely elected constitutional convention could change everything else that it objects to in the interim constitution, and do so legally...

...The final report's diagnosis of the situation in Iraq and the flaws of the November 15 agreement was excellent, with one key limitation...

...This of course is an appeal to "the people" over the GC...

...Populist Democracy Once the initial hostilities were over, three developments should have shocked even informed supporters of the war...

...Freed from a long-term dictatorship by an unjust war, Iraq is an occupied country, currently under an American military dictatorship...

...Elections for a constituent assembly or constitutional convention before December 31 would come sooner than the Americans wished but later than al-Sistani wanted...

...Imposed Democracy vs...

...In the actual case, there was much coercion by the CPA, but little participation by groups other than the GC, violating the spirit if not the letter of recent UN recommendations...

...We can only hope that they will be punished by the democratic process...

...Thus, if the religious Shia members let them, they may well opt for an expanded GC (the formula of Adnan Pachachi): a proto-legislature with new and distinguished faces whose members would be co-opted by the present GC...

...We've decided to sign the constitution and resolve the problems in it later," said Hamid al-Bayati, a senior leader with the Supreme Council for the Islamic Revolution in Iraq, according to Dexter Filkins of the New York Times (March 8, 2004...

...Astonishingly enough, Bremer continues to trust a program of imposition, one that seems to break down every two months or so...

...But I want to argue that these were not and are not the only choices that exist for Iraq or for us...

...To this very possible outcome he rightly objects...

...There will be an assembly, freely elected...

...The rest of the document, though a bit diffident concerning a formula for forming a provisional government (expanded council, roundtable, or national conference) represents an attempt at principled compromise...

...It may be that the UN will still push through a genuine roundtable of stakeholders, or an autonomous National Conference, to set up a new and more legitimate provisional government...

...The interim constitutional draft was to have been signed on Friday, March 5, in Baghdad, in the Green Zone...

...The latter had effectively managed the Afghan political process, as well as the one in East Timor previously...

...Again, little attention was paid to the obvious intention of the GC to impose an interim constitution...

...If this document could be signed, Bremer could then be portrayed by the Bush electoral campaign as the Madison of Iraq...

...policy makers (almost) forced Iraq into the unhappy choice between undemocratic constitutionalism and an illiberal, populist democracy...

...The goal of enshrining minority protections before majority rule is a worthy one...

...I leave aside the other crucial issues such as the continued existence of the local militia...

...The omission may have been the function of the relative (but strategic...

...The only American success in imposing a democratic regime occurred in Japan, and the success was due, in large part, to maintaining the continuity of the state...

...The text merely points out that "some Iraqis" noted that there may be a conflict of interest between the GC's drafting the interim constitution and its members' being eligible for governmental positions under it, a pseudo-problem, and hardly the best way to tackle the legitimacy deficit of an imposed interim constitution...

...At the same time, Iraqi civil society exists and is capable of pressure, even though it cannot impose its own solution from below...

...Finally, even though they hijacked the 1980s and 1990s slogan of "regime change," Bush's policy makers seemed to have learned nothing from earlier successes and failures at changing regimes...

...The basically (if not formally) unamendable interim constitution can thus easily be made permanent by a minority attached to it, with or without American pressure...

...I might add that instead of attempting to privatize the economy of the occupied country and buy up its key resources, the United States helped the Japanese to establish a mixed economy with an important role for public authorities...

...Any fool could see that the original American project aimed at establishing a quisling government to which pseudo-sovereignty would be given and with which the Americans, in classic neocolonial style, would then negotiate a "treaty" for bases, oil, and whatever else they wanted...

...After flaunting his veto power, Paul Bremer pushed through a draft constitution in almost coup-like fashion (similar to the November 15 Agreement) and disarmed Shia resistance in the council by threats that the June 30 transfer of sovereignty was at stake...

...Imposition or Another Compromise...

...I had a chance to advise a leading representative of that UN mission concerning the issues they would to face as a result of the November 15 agreement and al-Sistani's resistance...

...To this, al-Sistani responded dramatically by symbolically pulling the plug, for the third time, on the project of the U.S.-dominated CPA to impose a constitution on Iraq...

...One cannot claim lack of experience or ignorance here...

...This involved the establishment of roundtable negotiations by the ruling party of a dictatorship—Communist Party (CP) in Eastern Europe, the National Party (NP) in South Africa—that included all the major forces of the opposition along with its own representatives...

...The UN mission The results of the UN mission of February 6 to 13, 2004, led by Lakhdar Brahimi were mixed...

...Their attempts to impose fully developed constitutional formulas, thereby shortcircuiting the learning processes that only real self-determination can provide, is the most important case in point...

...It was thus distressing to hear Donald Rumsfeld and Colin Powell, along with administrator Paul Bremer, repeatedly speak of themselves as appointing a council (directly or indirectly) that would simply draw up Iraq's new constitution...

...Perhaps some new agreements can still be secured concerning the future of fundamental rights...

...As for al-Sistani, he has only to wait until December 31, and he may prefer an illegitimate interim constitution and a weak governing council to warm the seats of power for him...

...In the case of Iraq, a highly divided society, undivided control of a constituent assembly by a majority (perhaps 60 percent) of Shia representatives with a plenitude of power is greatly feared by minorities: secularists, Kurds, and Sunnis—and also by very many women—none of whom expect such a body to confirm their rights...

...Most important, the UN mission insists that timely elections can be held only if there is an early "agreement among Iraqi stakeholders on an electoral legal framework" and recommends the immediate setting up of an "autonomous and independent Iraqi electoral commission...

...If they remain in power, this administration and future ones may be tempted to engage in similar international adventures...

...Conventions in this model are confined to drafting recommendations to the electorate or to other elected bodies, representing "we the people...

...If successful, this formula would constitute a return to the November 15 program...

...There is no question that an imposed American constitution, undemocratic as it would have been, would more likely have been more liberal, thus satisfying secular, minority, and women's aspirations, than one produced by a sovereign, freely elected assembly...

...Moreover, with the provision of the veto by three provinces (most likely Kurdish, but very possibly Sunni Arab, if there is a Kurdish-Shiite private deal), even a very large majority may not be able to change anything of importance...

...The normative advantages of the democratic demand were thus undeniable, and the Americans never had an answer to the question of why they, rather than the Iraqi electorate, should be the source of the new constitution...

...total de-Baathification of the administration, going well beyond the top authorities in the police, state apparatus...

...But for the Kurds too the result could very well be the worst possible one...

...The episode reminds me of the Hungarian transition in October 1989, when the moderate opposition negotiated a deal with the Communists, the radicals renounced their veto power and allowed the signing, but then turned to the population in a successful referendum on the key issue, parliamentary vs...

...Consistent with al-Sistani's wishes, not only the caucuses but the very idea of an unelected legislature (which could reduce the freedom of a later constitutional assembly or convention) are given their final coup de grace...

...Whether or not al-Sistani noticed, the shift from his demand for a constituent assembly to a convention symbolizes a reduction (in my view, welcome) of the freedom of the elected body that was now conceded...

...disinterest of al-Sistani's people in the matter or the uncompromising attitude of the Americans, or both...

...Moreover, given the stalemate between the CPA and al-Sistani, an interim constitution produced by negotiations, followed by elections and the drafting of the permanent constitution, could become the basis of an elegant and principled compromise.* The November 15 Agreement The agreement on November 15, 2003, between the CPA and the GC was a response to al-Sistani's democratic challenge...

...Historical Lessons and the New Pattern In their arrogance and ignorance, U.S...

...As for the security agreement, the UN mission states that "only a legitimate transitional or elected government should agree to bi-lateral security arrangements with the Coalition...

...Although al-Sistani and his followers did not accept the idea of an interim constitution (renamed as Interim Administrative Law) produced by the GC, they paid little attention to the interregnum problem, probably assuming that it would be moot if elections occurred before the transfer of sovereignty...

...But, whatever those were, the perpetrators can also be accused of the international crime of aggression, as well as "high crimes and misdemeanors" on the national, constitutional level...

...And alSistani is in the driver's seat, because he knows that the Bush administration needs a stable solution soon enough for the U.S...

...What is happening for a second time now (the first time was the November 15 Agreement) is that the Americans are trying to outsmart a player who is strategically more sophisticated than they seem to imagine...

...Al-Sistani is surely not unduly worried about the document itself, because without a strong provisional government and a legislative assembly (or a Constitutional Court as in South Africa...

...Because there would be an unelected assembly at the base of the provisional government, the term "convention" to describe the constitution drafting body was well chosen...

...Indeed, the current occupation authorities have already badly bungled the democratization process because they are driven by strategic considerations for the upcoming election and because they believe that democracy can simply be imposed...

...Yet the fact is that the model of Central Europe and South Africa would have been difficult to transpose to Iraq, and not only because of the absence of legal continuity and a sitting parliament...

...This may not lead to a fully theocratic state, but it would certainly lead to one in which a specific interpretation of Islam may be incorporated into civil, family, and criminal law...

...Parliamentary constitutionmaking of the sort that recently occurred in some Central European countries was also excluded for the same reasons...

...His fatwah, issued on 22 n DISSENT / Spring 2004 June 25, 2003, stated in clear and simple words that ". . . these [occupation] authorities do not have the authority to appoint the members of the constitution writing council . . . .There must be general elections in which each eligible Iraqi can choose his representative in a constituent assembly for writing the constitution...

...We now know that the Kurds threatened to bolt the entire process, under an American umbrella, and leave the governing council, if the Shiite five persisted in blocking the interim constitution...

...The structural position of the communist parties and the South African National Party at their respective roundtables could not be occupied once Saddam Hussein's government was gone and the old Baath Party shattered and powerless...

...But rigid minority vetoes are the wrong way to achieve this objective...

...For this government, eight months of stability around its imposed program of transition would be quite enough...

...0 F ALL THE disputed provisions, only the extreme minority veto matters...

...That is the main issue now and my focus here...

...A roundtable of all significant political forces could and should have been organized as the basis of provisional government, instead of the Governing Council (GC), the handpicked committee of the Coalition Provisional Authority (CPA...

...The latter are perhaps guilty only of thoroughly and deliberately misleading the press, the Democratic opposition, and other governments along with the American public by concealing their real aims...

...And, indeed, someone did come forward to say this: Ayatollah Ali al-Sistani...

...Thus, I believe that it is our duty as critical intellectuals to help foster the emergence of an autonomous, democratic, and liberal Iraq...

...But not only will it not be sovereign, as al-Sistani (unreasonably) wants, it may not be able to decide anything important...

...Now this very council occupies the same structural position as the CPs in Central Europe...

...This stability he can easily deny to them...

...The Governing Council, however, needs to refurbish its legitimacy if it is to govern in a plausible manner, and if its constituents are to do relatively well in free elections...

...The embarrassing fact that Iraq had no weapons of mass destruction to contain or deter was probably well enough known by the policy makers who misrepresented and hyped intelligence before the war...

...The CPA was more than ready to jump into the breach...

...First, the occupation authorities played a major role in smashing not only the government of Saddam Hussein but also the entire Iraqi state (disbanding of the army...

...Thus al-Sistani was willing to accept the guidance of the UN and its secretary general, who then sent an expert mission to Baghdad...

...Carl Schmitt rightly called this model sovereign dictatorship, even if empirically many, perhaps most, of its applications did not lead to dictatorial rule...

...and the signing of a security agreement between the CPA and the GC regulating the future role of U.S troops...

...And yet democratization in Iraq is intrinsically valuable, and it is asserted and demanded by many autonomous forces in Iraq itself...

...I assumed from the first moment, but will never know, that the idea was immediately transmitted to the CPA, which in fact proceeded to adopt a mangled version...

...And therein lies the opening for democrats and the Democratic presidential campaign...

...In the end a better Iraq must mean a better world, and a better world a better America...

...Lesser legitimacy cannot normatively bind greater legitimacy...

...The Brahimi report did not challenge the imposition of the interim constitution by the GC, probably because no one else made a big issue of it until it was too late, and perhaps because of the expectation of better constitutional contents (vis-a-vis religion and state issues, federalism, and perhaps women) if the Americans were allowed to do this particular job...

...Admittedly, Iraq was bereft of a normal legislature and thus could not have a constitutional convention in the American sense— at least not immediately...

...This constitution, however, whenever it is signed, will not last for two hundred or even four score years...

...An inability to learn is the salient character of this administration...

...semi) presidential government...

...Its key components were plans for an early transfer of what they call "sovereignty" to an Iraqi provisional government...

...HAVING FAILED to explicitly propose the setting up of a roundtable or a national conference, the UN has apparently left these questions to chance and the good will of actors...

...My task here is to suggest a process that could lead to better and more stable long-term results...

...That may be why he or the five have not raised the problem of the unworkable amendment rule, which is to their benefit if they have the executive power...

...and the CPA "on the mechanism to which sovereignty will be transferred on 30 June, 2004...

...I speak of ignorance because historical experience shows that there are other alternatives, some of which are only now being discovered, well after al-Sistani's challenge, when it may be too late...

...In that case the interim structure's survival is no problem for alSistani, who will already have power through DISSENT / Spring 2004 n 27 IRAQ it...

...And voila al-Sistani on the day of the signing issued a new fatwah: "any law prepared for the transitional period will not gain legitimacy except after it is endorsed by an elected national assembly...

...Originally, the new model of constitutionmaking was the product of the famous third wave of democratization...

...Thus, conditions for a new negotiating forum, with the GC as one participant, discussing and deciding basic constitutional issues, improved as time went by...

...But what could have been adopted from Central Europe and South Africa was the model of a two-stage, non-sovereign, constitution-making process involving comprehensive negotiations among all the relevant political forces...

...Actually, that would be the safest course for the American government as well...

...Al-Bayati could be implying that there is a Kurd and Shia deal, that will be supported by a lot of pressure in the streets, according to which the latter will get control of that executive, presumably five persons (three Shia, one Sunni, one Kurd) as they demanded...

...Such talk seemed an open invitation to someone to step forward and repeat Paine's dictum that "The constitution of a country is not the act of its government, but of the people constituting a government...

...This puts those of us who opposed the war in an awkward position: we know that we should help promote democracy and the return of sovereignty to the Iraqi people...

...The UN offers its own assistance "to help build consensus among Iraqis on the specific powers, structure and composition of such a provisional governance body and the process through which it should be established...

...POSTSCRIPT: Al-Sistani, the Minority Veto, and the Road to Civil War Ayatollah al-Sistani was indeed not asleep...

...At least half of Iraq must be laughing, but it is no laughing matter...

...A successful democracy in Iraq could serve as an important exemplar in the Arab world...