Arato Guest Editorial

Andrew Arato writes:

' [Il]Legality and [Il]Legitmacy in Iraqi Constitution Making

The constitution being submitted to the Iraqi people for ratification is a product of illegality. It was in my view legal to amend the Transitional Administrative Law to change the date of “writing” a final text from August 15 to August 22. It was however fully illegal on that latter date neither to adopt a completed text, nor to again amend the TAL, nor to dissolve the National Assembly and call for new elections. It is an absurd idea, and probably a novelty in the history of constitution making (allowed by careless drafting of the TAL) that a constitutional assembly need not vote at all, i.e. adopt a draft that is submitted to a population for confirmation. Who is submitting the text to the population and by what right? We don’t know that the National Assembly is submitting or even writing anything until it agrees to something, i.e. votes. Neither a Commission nor a Committee, not its officers, are the National Assembly.

It will be said that revolutionary constitution making, also in the U.S. in 1787 involves illegality. But the work of the U.S. Federal Convention stayed within the rules that body itself established. Moreover, it worked within a legitimate even if not fully legal process. Neither has happened here. It was decided early that the Constitutional Commission expanded by 15 Sunni members will decide by consensus. There was no consensus, and yet the product was submitted to the Assembly. So much for the processes' own, internal legality. As to legitimacy, that could only be achieved through fair compromise and open, accountable voting of duly elected officials, preceded or followed by genuine public discussion. Here there was only secret, elite bargaining, deformed by the exaggerated role of the American ambassador. Even if both were in fact necessary, they had to be redeemed i.e. made legitimate by the fairness of the result, and the public assent of duly elected officials. As to the latter this was considered entirely unnecessary.

As to the former issue, the result is not fair. The reader should make no mistake here. In the Iraqi story in the long term I am most attracted by the plight and the faith of the Kurds. In the middle term, as several articles testify, I was literally inspired by the struggle of the Grand Ayatollah Sistani for his freely elected constituent assembly, which now his own side dared to reduce to a rubber stamp! But in the short term I find the behavior of the Sunni 15 to have been courageous (3 are already dead!) and principled and defensible on abstract grounds, as well as their own interests of course. First, it is irrelevant that they have sympathies for one or another incarnation of the Ba’ath. You make peace with your enemies, and blanket deBaathification in any case was always a huge mistake feeding the insurrection. Second, it is not true that they have not shown readiness to compromise. Before Hakim’s monkey wrench concerning the 9 province mega veto was thrown in, they were ready to agree to a federalism based on provinces (and not ethnicities), and a second chamber, i.e. federalism as the places where such a thing works tend to understand it. They have come to agree, very reluctantly, to the special quasi-confedral status of the Kurd Region as presently constituted. And, as Juan Cole demonstrated, they have a gradualist and constructive attitude on American withdrawal.

They do however have a bottom line and it is this. No deBaathification mandated by the constitution, and the adoption of “federalism” in the sense of new confederal arrangements must be by consensus. If we think deBaathification based on membership and not on criminal liability was always a huge mistake we should have no problem with the first. The analogy here should be, because of the time and sociological dimensions of the regimes to deCommunization (always a bad idea) and not deNazification. As to the second, a shift among state structures is pre-eminently a constitutional matter, or even the primary constitutional matter. It is thus quite wrong to allow a parliament to determine the rules of federation by simple majority, and not by using its constitutional amendment rule requiring consensus (2/3 in the case of the given draft). The latter is what the Sunni delegates demanded. It would have been better in my view to establish and enshrine provincial rather than ethnic federalism right now. But a fair compromise would have been keeping the term federal republic, and deciding latter among the options using the constitutional amendment rule. In fact, even the Sunnis would have been still running a great risk under such a compromise against a Kurdish – Shi’a alliance that could again perhaps get 2/3 of the parliamentary seats.

So now the Iraqis get a result, with the American imprimatur, that is neither legal nor legitimate. As almost everyone among us (see the last three beautiful editorials by the NY Times), with the exception of a few special pleaders for Kurdish and Sh’a interests realizes, this result is also a disaster for the United States. We have openly and demonstratively intervened in someone else’s constitution making, and that is bad in itself. And we did not get the result we wanted, namely consensus, Sunni approval, splitting the insurgency, and that makes our intervention even worse. Worse than a crime: colossal stupidity. The pathetic phone call of the President could not work, because he has nothing over Hakim, as his advisors should have known. Since he announced that he is staying no matter what, what can he threaten this man who has both a mass movement and Iranian support behind him? On the contrary he could threaten Bush with opening up another front against the occupation, but of course he does not have to go so far. Because the Americans insisted on speed, only Hakim can give it to them with his majority in the Assembly. The others can only delay, so it does not matter that the Sunni ideas would be more suited for the American generals trying to deal with the occupation. The politicians in Washington needed something quick, and the Constitution is it.

The only thing the Iraqi voters can do is to vote it down (two out of three Sunni provinces plus Baghdad should have the 2/3 if the vote is fair), elect a new assembly and hope nationalist parties and that assembly can do better, under guess what, the TAL. It is a terrible, precarious road, but alternative, an exclusionary Constitution, with Khalilzad’s impotent marks on it, product of an illegal and illegitimate procedure, aiming at the break-up of Iraq is even worse. '


Andrew Arato