Interim Imposition

Interim ImpositionAndrew Arato

[MacArthur] said that he had issued no orders or directives, and that he had limited himself

merely to suggestions. . . . He stated that it was his belief, that it was his conviction, that a consti-

tution, no matter how good, no matter how well written, forced upon the Japanese by bayonet

would last just as long as bayonets were present, and he was certain that the moment force was

withdrawn and the Japanese were left to their own devices they would get rid of that constitution.

—Recorded on January 29, 1946, by Nelson T. Johnson,

Secretary-General of the Far East Commission1

In spite of the storm surrounding its firstappearance, the cumbersomely named“Law of Administration for the State of

Iraq for the Transitional Period” (TAL)2 hasbeen surprisingly immune from criticism inthe West since its initial signing on March 8,2004. American officials, anxious to declarevictories where they can, as well as journal-ists seeking newsworthiness have insisted onthe more accurate and revealing term“interim constitution.” Its technocraticname, designed to neutralize (or hide) itsconstitutional significance, may partlyexplain why it has received little criticalattention, but a more likely explanation isthat many of its readers have rightly orwrongly viewed it as offering better protec-tions for rights, including those of minori-ties and women, and more safeguardsagainst new forms of authoritarian rule thanother constitutions in Islamic countries,especially those in the Arab Middle East,including Iraq’s own constitutional past.Commentators are apt to overlook theimposed character of the production of thedocument, perhaps because they suspectthat a more genuinely negotiated and con-sensual product would very possibly haveincluded fewer supposed protections for

rights and safeguards against dictatorship,or at least the “tyranny of the majority.”

This essay has two major aims. First, I willexplore the political significance of interimconstitutions and offer an account of thethree features they must have if they are tobe successful—namely, that they serve theanti-dictatorial impulse, provide greaterlegitimacy to the emerging political order,and facilitate constitutional learning. Sec-ond, I will examine the Iraqi interim consti-tution, arguing that it lacks all three of thesefeatures, thereby negating the very purposeof having an interim constitution in the firstplace. I will conclude, without excessiveoptimism, by suggesting some policychanges that could still be undertaken inIraq in order to serve at least one of the pur-poses of interim constitutions—blockingthe road to future dictatorships by promot-

25

1 Cited in Koseki Shoichi, The Birth of Japan’s PostwarConstitution, trans. Ray A. Moore (Boulder, Colo.: West-view Press, 1997), pp. 75–76. Was it already a misrepre-sentation the moment (January 29, 1946) this wasuttered? It is proven by Koseki that three days later, onFebruary 1, Gen. Courtney Whitney was already advis-ing MacArthur to the contrary, and it was this advicethat was followed. Yet the statement remains valid forIraq today! 2Available at www.cpa-iraq.org/government/TAL.html.

Ethics & International Affairs 18, no. 3 (2004).All rights reserved. No part of this article may be reproduced or utilized in any form without the written permission of the Carnegie Council on Ethics and International Affairs.

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ing elements of constitutionalism compati-ble with electoral legitimacy and majorityrule.

REASONS FOR ADOPTING INTERIMCONSTITUTIONS

It is only since the préconstitution (Loi con-stitutionnelle) of November 2, 1945, thathelped to establish the Fourth FrenchRepublic that interim constitutions havebecome widely used during changes ofregime. Unfortunately, because of the sadhistory of that republic, the denunciationsof its final constitution, and the frequentabuse of interim constitutions elsewhere(particularly in the Arab world), interimdocuments have had a relatively bad nameuntil recently, when they played a dramaticand positive role in the Spanish, Hungarian,and South African changes of regime.3

Before examining the features that dis-tinguish successful from unsuccessfulinterim constitutions, I will summarize thereasons why they have been adopted.Interim constitutions are often enactedbecause there is a generally accepted politi-cal need to organize constitutional govern-ment, possibly for an extended period, evenin the absence of conditions under which agenuine and fully legitimate constitutioncan be made. This was the rationale for theinterim constitutions in Germany andJapan after World War II, though only in theformer was the new constitution, theGrundgesetz, pronounced (and remained,until 1990) interim.4 In both countries for-eign occupation was understood to haveconfiscated sovereignty, and constitutionmaking was interpreted as a key sovereignfunction. In Germany, the division of thecountry and the inability of the Soviet zoneto participate in constitution making pro-vided additional reasons to conceive the

new arrangements as merely interim untilreunification.5

Perhaps the most important reasoninterim constitutions have been adopted isthe fear of dictatorship, the expectation thatin an unrestrained revolutionary processone of the sides would dominate and mighteither make a provisional dictatorship per-manent or impose its authoritarian consti-tution. This can lead to the aspiration toapply the principle of constitutionalism notonly to the result but also to the process ofmaking constitutions. In the European(originally French) tradition of revolution-ary constitution making, constitutionalassemblies invalidate all previously consti-

26 Andrew Arato

3 Interim constitutions in the Middle East often signi-fied illegitimate attempts to make supposedly tempo-rary authoritarian and/or paper constitutionspermanent or semipermanent. The last glaring examplewas the Iraqi interim constitution of 1970 that lastedformally, though without much meaning, for thirty-four years, until the American overthrow of SaddamHussein in 2003. See Nathan J. Brown, Constitutions ina Nonconstitutional World: Arab Basic Laws and theProspects for Accountable Government (New York: SUNYPress, 2001), p. 70 (for Syria); p. 79 (for Egypt); and pp.86–87 (for Iraq). I am grateful to this careful and seriousauthor, on whose work I have relied here.4 To my knowledge it was Social Democratic lawyersduring the earliest phases of German constitution mak-ing who first offered the nomenclature of “administra-tive statute” (instead of constitution) to indicate notonly provisionality but also the inadequacy of making aconstitution-like set of rules for an occupied, hencenonsovereign (and, in Germany’s case, divided), coun-try. At that time the lawyers of the three occupying gov-ernments, the United States, France, and Britain,explicitly declared their hostility to such modest lan-guage, which would devalue their own achievement,and demanded a constituent assembly producing a con-stitution, as in France and Italy previously. The com-promise formula was the so-called ParliamentaryCouncil drafting a Basic Law. Peter Merkl, The Origin ofthe West German Republic (New York: Oxford Univer-sity Press, 1963), pp. 52–54.5 Shoichi, The Birth of Japan’s Postwar Constitution, pp.33, 64, and 70, mentions the proposal for a two-stageprocess of constitution making in Japan that involves aprovisional basic law two years before the issue came upin Germany.

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tuted powers and unite in themselves theplenitude of all powers.6 Carl Schmittrightly called these constituent assemblies“sovereign dictators”—even if he was notgenerally right in tracing modern dictator-ship as such to this institution alone.7 Anequal, or more important, threat that moti-vates actors to use interim constitutions isthat the institution of the provisional gov-ernment will be legally unchecked before themeeting of the constituent assembly thatjustifies its existence. Such a government hasa far better chance of transforming itselfinto a permanent dictatorship than anyassembly. An interim constitution repre-sents a fundamental device by which theconstitutional assembly and the provisionalgovernment both are subjected to quasi-constitutional rules for the duration of theirtenure, possibly limiting that tenure itself intime (and punctuated by a new election).

France’s so-called préconstitution,8 forexample, resulted from a popular referen-dum that called for a new constitutionalassembly that was to found a new republic.9

At the same time as ordaining a new con-stituent process, this referendum enactedthe Loi constitutionelle of 1945, which pro-vided clear limits to both the constitutionalassembly (a rigid timetable and the require-ment of a ratificatory referendum for thefinal document) and the provisional govern-ment (some separation of powers in order toprevent a “convention government” on themodel of the revolutionary government of1793–95).10

The anti-dictatorial impulse may have animportant role to play in enacting interimfundamental laws also in cases where there islegal continuity,11 such as when the “oldregime” is either a dictatorship or a highlyexclusionary polity. In almost all such cases,from Spain to Hungary and South Africa,one can document the efforts of previous

power holders who can no longer avoidsome kind of transition from authoritarianrule to create from above a “hard demo-cratic” or “soft authoritarian” regime inwhich their social, economic, personal, andeven political power positions are protectedor favorably transformed. Elections heldunder their rules are likely to produce unde-mocratic results, and no democratic opposi-tions can or should accept such imposedsolutions, at least if they can help it. At thesame time, democratic oppositions may beunable or unwilling to try the path of revo-lutionary transformation, as was indeed thecase from the 1970s to 1990s. Roundtable

interim imposition 27

6 It was formulated this way in the early writings ofSieyès and developed with some inconsistenciesthrough the first two French constitutional assembliesof 1789–91 and 1792–95, and most clearly that of 1848.7 Carl Schmitt, Die Diktatur (Berlin: Duncker andHumblot, 1922); and Carl Schmitt, Verfassungslehre(Berlin: Duncker and Humblot, 1928), p. 59.8 See Liberation Government, “Ordonnance no 45-1836 du 17 août 1945”; available at mjp.univ-perp.fr/france/co1944-5.htm; and Provisional Government ofthe Republic, “Loi constitutionnelle du 2 novembre1945”; available at mjp.univ-perp.fr/france/co1945.htm.9 Chosen on the same ballot as the referendum, in thecase of a negative answer to the first question of the ref-erendum the assembly would have been an ordinarylegislative body under the Third Republic.10 It is demonstrable that Charles de Gaulle deliberatelyfought for limits to the provisional government. Theoutcome was a brief, eight-article interim constitution.It was innovative, because here the interim constitutionhad been independently authorized by the same sourceas the new assembly, the popular vote. See Michael Tro-per, Francis Hamon, and Georges Burdeau, DroitConstitutionnel 25th ed. (Paris: LGDJ, 1997), pp. 368–74;Olivier Duhamel, Droit Constitutionnel, vol. 2 (Paris:Seuil, 2000), pp. 140–41; Jacques Godechot, ed., LesConstitutions de la France depuis 1789 (Paris: Flamma-rion, 1995), esp. quoting de Gaulle’s press conferencewith its three options, pp. 358–59; and Olivier Beaud, Lapuissance de l’état (Paris: PUF, 1994), pp. 272–76.11 Legal continuity did not exist in the case of Francebecause the overthrow of the Vichy government was“revolutionary” in the legal sense, and even the returnto the Third Republic (in the case of a “no” vote on thefirst referendum question) would have implied a revo-lutionary restoration.

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negotiations are characteristically held toresolve this dilemma, and they typically resultin interim constitutions.12 In such negotia-tions, the opposition can protect itself fromattempts of old regime actors to maintainpower, while these actors can in turn gainguarantees that a revolutionary dictatorshipthat would treat them as enemies of the newregime will not take place. Given the com-plexity and potential vulnerability of agree-ments that would achieve these aims, theactors generally seek ways of guaranteeingthe survival of key parts of the interim con-stitution in the final document. Thus, whilethe French type of préconstitution involvedonly procedural limits on the constituentassembly,13 the new interim constitutionsseek to impose limits on its contents, alongwith procedural safeguards that are likely topreserve agreements regarding contents. Anexample of substantive limits are the famousSouth African 34 Constitutional Principles,requiring the constitutional assembly to pro-vide for constitutional government, demo-cratic and inclusive citizenship, federalism,minority rights, as well as special rights fortraditional communities. An example of pro-cedural limits is the assignment of final con-stitution making to a normal parliamentworking under a qualified two-thirds major-ity amendment rule both in Hungary and inSouth Africa (where a document supportedby simple majority could still pass if sup-ported in a referendum by 60 percent of thevoters). In both cases there is an institutionsafeguarding an interim constitution “worthyof defense”—a new and powerful constitu-tional court.

In these contexts, there are two (or more)sides that could potentially impose a consti-tution, and the purpose of the interim con-stitution is to fashion a “second best” optionthat each can live with since they are not ableto achieve their preferred solutions. Here,

too, the anti-dictatorial or anti-impositionlogic leads each side to desire (however reluc-tantly) that constitutionalist norms beimposed both on the process and the resultsof constitution making.

INTERIM CONSTITUTIONS ANDLEGITIMACY

The roundtables produced detailed consti-tutions that were to limit democraticallyelected constitution makers in terms of thesubstance and not just the procedures oftheir activity. Because they had not beendemocratically elected, such a significantrole for the roundtables could have posed achallenge to exclusively liberal, constitution-alist justifications. Indeed, the roundtablesdramatically wrestled with problems oftheir own legitimacy, seeking a plausibleresponse to the deficit other than the cheer-ful acceptance of being in the position toimpose. Where there is no democracy, apurely democratic beginning of democracyis impossible.14

The key to resolving these problems oflegitimacy lies in two stages permitted by theinterim constitution itself. During the firststage, normative principles other than elec-toral authorization and accountability mustbe rigorously honored to make up for thedemocratic deficit. The most important of

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12 Neither is imperative: democratically inclinedincumbents, as in Spain, can enact fully competitiveinterim rules; informal agreements may substitute forroundtables, as in Slovenia; and internal as well asexternal pressure can be used to enforce legislationallowing democratic elections, as in the GermanDemocratic Republic, where the roundtable designed apermanent constitution that was never enacted.13 Beaud, La puissance de l’état, p. 275.14 For discussion, see Andrew Arato, “Forms of Consti-tution Making and Theories of Democracy,” in CivilSociety, Constitution, and Legitimacy (Lanham, Md.:Rowman & Littlefield, 2000), pp. 229–56.

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these principles are plurality, publicity, andlegality. Adhering to these principles pro-vides what Jon Elster has referred to as“upstream legitimacy.”15 If these principlesare not adhered to, the normative integrityof the whole constituent process becomesdifficult (though not impossible) to main-tain. The interim constitution must then inturn organize a second stage allowing therigorous fulfillment of the technical precon-ditions of democratic elections without thepossibility of deformation by those organiz-ing existing or provisional executive powers.Herein lies the “midstream legitimacy” ofinterim constitutions, which is supposed tocompensate for inevitable weaknesses ofupstream legitimacy.16 Whereas upstreamlegitimacy depends upon the procedures ofenacting interim constitutions, midstreamlegitimacy is more a function of its design,including its procedures. Extreme lack ofupstream legitimacy may, however, interferewith the successful functioning of even rela-tively good constitutional designs (and thusthe generation of midstream legitimacy),and it is for this reason that I stress theimportance of plurality, publicity, and legal-ity in establishing interim constitutions.

Here I can give only a short summary ofthe relevant principles. By plurality I meanthe requirement of drawing in as broad arange of significant political participantsinto the negotiating process as possible, andby using a decision rule that allows all oftheir voices to count. By definition, inclu-sion on this level cannot be perfect or com-plete, since it will involve some group(s)choosing (and rejecting) others as partnerswhen none of them has been tested elec-torally. But it is not difficult for externalobservers to determine whether the maincleavages of a society are “represented” bygroups having some genuine organizationand support, and when in doubt their advice

should certainly be relied on to complete theprocess of inclusion of at least the maingroups. Publicity too cannot be complete orperfect if there are to be genuine negotia-tions. But providing for a sufficient numberof public forums to present the state of thenegotiations at various levels, and sufficienttime for the public to absorb informationabout them, certainly forces actors (as in1787 already) to adopt many positions thatcan be justified by using arguments that canappeal to groups across different particularinterest and value constellations (in Rawls’sterms, “public regarding arguments”).17

Finally, legality under dictatorship may befictional, but when participants in roundta-bles take law seriously it shows that theirwork is rule constrained and is never theproduct of the arbitrary wills of even a plu-rality of actors.18 Elements of genuine legit-imacy (as well as the mutual promises andcommitment of major political actors)


15 Jon Elster, “Constitutional Bootstrapping in Philadel-phia and Paris,” in Michael Rosenfeld, ed., Constitution-alism, Identity, Difference, and Legitimacy: TheoreticalPerspectives (Durham, N.C.: Duke University Press,1994), p. 102; and Jon Elster, “Arguing and Bargaining inthe Federal Convention and the Assemblée Constitu-ante,” in Raino Malnes and Arild Underdal, eds., Ratio-nality and Institutions (Oslo: Universitetsforlaget, 1992).16 In contrast to Elster, who was examining single-stageprocesses when coining the distinction, I treat electorallegitimacy at the beginning of the second stage as “mid-stream,” while for him this would be “upstream” withrespect to the central process. In countries of interimconstitution, at least recently, the forging of that consti-tution represents the beginning of the stream. Like Elster,I leave downstream legitimacy to final enactment and/orratification processes, but I do not deal with it here sinceit is irrelevant to interim constitutions in general.17 See Elster, “Arguing and Bargaining.” I agree that thedemand for publicity at all stages would be counter-productive, dangerous, and even impossible, and yetwould stress the importance of public discussion atsome key junctures.18 In my view this way of proceeding is actually a first stepin building a genuine rule of law. See Arato, “Constitu-tion and Continuity in the East European Transitions,”inCivil Society, Constitution, and Legitimacy, pp. 167–98.

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allow for the interim constitution to limitthe sovereign, unlimited powers of the con-stitutional legislature that would typically beonly a “convention”or even an ordinary par-liament, not a (classical European) con-stituent assembly. At the same time, theincomplete legitimacy of the interim consti-tution requires that the restrictions on afreely elected body be as limited as possibleunder the circumstances.

In a former dictatorship, one can rarelyhope for ideal democratic elections in thesecond stage. In most cases the greatestthreat to genuine and free competition areundemocratic incumbents. Interim consti-tutions as well as other legal arrangements,such as electoral rules, party rules, and dis-position over public media, must be sodevised as to inhibit the holders of executivepower from manipulating, deforming, andfalsifying the elections. Of course, when thethreats are multiple, coming from both gov-ernment and an insurrection, or from dif-ferent actors in a civil war, it may beimpossible to produce or enforce measuresrestraining the repressive apparatus of theexecutive. Pseudo-elections may be worsethan no elections at all, and the longer elec-tions are postponed, the more important“interim” arrangements legitimated by acomplex of justifiable principles become.

An interim constitution by its natureimplies a constitutional learning processinvolving two fundamental stages. Thisclaim is itself based on learning from thecommon historical experience of many con-stitutions (the U.S. Constitution, the FrenchConstitution of the Fifth Republic, theGrundgesetz) that emerged after the dra-matic failure of a recent forerunner, whoseproblems can become the occasions forimportant learning experiences and correc-tive efforts. While the same cannot be saidabout minimal preconstitutions such as the

one adopted in France, the more detailedinterim constitutions clearly attempt toinstitutionalize this kind of learning. Only adetailed constitution allows learning over awide enough range. But only when that con-stitution is interim can it organize learningwithin a single process, making it less likelythat specific constitutional problems lead torevolutionary, totalizing breaks such as theone that occurred in France in 1792. If suc-cessful, they also make it less likely thatexperiments in less radical revision lead toreplacement of all earlier achievementsalong with genuine problems, resulting inthe replacement of the second constitutionby a third, then a fourth, and so on, asoccurred in France and many Latin Ameri-can countries. The learning advantage of aninterim constitution is that political formu-las that are indispensable in the short termbut very questionable in the long term (likeconsociationalism or rigid power sharing orgreat coalitions) can be included in interimconstitutions, if carefully planned, withoutthe fear of their transposition and insulationin the permanent document.19 Thus the newtype of interim constitutions haveallowed—as they must—a broad learningprocess to take place across two interlinkedconstitutions.

There are many constitutional problemsthat learning across two constitutions canaddress. Most obviously, there is the possi-

30 Andrew Arato

19 If these arrangements are to work, they cannot beexposed to a generally flexible amendment rule. “Sun-set” provisions are able to limit the longevity of mutualguarantees that are desirable only in the initial phase ofthe transition. During the operation of the interim con-stitution, actors in a divided society can learn to inter-act politically and to seek guarantees that are morecompatible with majority rule and the freedom of theconstitutional legislature—as in South Africa, whereconstitutionalism replaced consociationalism.

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bility of incoherent drafting, where one arti-cle should be changed to make it consistentwith another or the rest of the constitution.More important and difficult are problemswhere there is no logical incompatibility butthe actual functioning of rules leads toundesirable results. Here the attachment ofbeneficiaries to a type of malfunctioningsuch as dramatic and unfair overrepresenta-tion will be a problem more difficult to han-dle with a normal amendment rule givingsome veto powers to minorities. Conditionsof democratic transition may require a veryhigh threshold of consensus, for examplethrough consociational devices, that withina final constitution would have a self-freezing character. In the longer term theymay make a country ungovernable, and pre-pare the ground for future civil war, giveninevitable changes in the original power anddemographic constellation. The SouthAfrican approach of mandating consocia-tionalism in the first stage while not enshrin-ing it in the second stage, allowing the freelyelected assembly to move instead to consti-tutional protection of minorities, has beenparticularly successful in this regard. Only atwo-stage process involving a relativelydetailed interim constitution allows for thisclever (temporary) use of consociationalismwithout provoking a revolt by the majority.

There are important prerequisites forconstitutional learning to take place. Sinceexperimentation must occur during thebeginning of the process, a considerablymore flexible amendment rule for theinterim constitution must be establishedthan would be appropriate for the perma-nent constitution in the same sociopoliticalsetting.20 More importantly, beyond theprovisions or principles consensually agreedupon by the main participants, interim con-stitutions must not interfere with the learn-ing processes involved in making the

permanent constitution.21 No interim con-stitution could violate its own purpose moreobviously than one that through its ownrules both inhibited learning and tended tomake rules of ratification for a permanentconstitution that are destined to fail. Whilesome interim constitutions may legitimatelybecome permanent (as in Hungary) when arelatively open final process repeatedly fails,we face a serious abuse and attempts at self-perpetuation when the rules provided by theinterim constitution are so constructed as tomake the failure of the final constitutionextremely likely. Finally, for an interim con-stitution to work as a legitimate anti-dictatorial and learning instrument, it mustbe enforceable (its learning must involvelearning not to learn too easily!). In Hun-gary and South Africa at least, the provisions


20 Such an amendment process, however, should notdetract from the legitimacy of authorizing the interimconstitution itself, as happened in Hungary when theold, non–freely elected parliament reneged on some ofthe roundtable agreements. See Andrew Arato andZoltan Miklosi, “Constitution-Making in Hungary”(unpublished, 2002; available at the United States Insti-tute of Peace or from the authors.)21 Indeed, the one great danger of interim constitutionseven in nonauthoritarian settings is that they work toowell and make themselves permanent not through thefree choice of a democratic assembly but by dramati-cally interfering with that choice. Rien ne dure que leprovisoire! (Only the provisional lasts!) it was said soonafter the making of the emphatically provisionalGrundgesetz that is still, fifty-five years later, Germany’svalid constitution. Even when there is no interferencewith the freedom of a future assembly, as in Hungary,the absence of any provisions (rules, incentives, disin-centives) for making the permanent constitution canlead to the interim becoming permanent. See Arato,“Refurbishing the Legitimacy of the New Regime: Con-stitution-Making Endgame in Hungary and Poland,” inCivil Society, Constitution, and Legitimacy, pp. 199–228;and Arato and Miklosi, “Constitution-Making in Hun-gary.” Beyond its own amendment rule and sunset pro-visions, it is therefore extremely important for theinterim constitution to regulate in a plausible way thetime frame and the procedures for making the perma-nent constitution.

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of the interim constitutions have been effec-tively enforced by strong constitutionalcourts.

IRAQ’S INTERIM CONSTITUTION

Detailed interim constitutions that signifi-cantly restrict a constitutional assembly orconvention are most at home in negotiatedor coordinated transitions or regimechanges, such as those that occurredbetween 1976 and 1995. Such transitions gen-erally involve roundtables, which in turnpresuppose legal continuity in the midst ofthe severe crisis and even rupture of oldregime legitimacy.22 Because the revolution-ary process in Iraq involves rupture of bothlegality and legitimacy, it would seem arather unlikely case for the adoption of thenew type of formula (of a detailed interimconstitution that substantively limits theconstitutional assembly).23 The adoption ofa French type of limited preconstitution,with the goal of restraining both provisionalgovernment and constituent assembly,would seem to be a more likely prospect. Butit needs to be pointed out that in France theprovisional government that initiated theproject derived its authority from the resist-ance both at home and abroad, and that thisobviously legitimate provisional govern-ment nevertheless sought and received pop-ular, electoral authorization for its initialconstitutional acts. Neither of these types oflegitimation, revolutionary and electoral,were available to the authors that imposedthe Iraqi interim constitution. Thus, underweaker initial conditions it is all the morestriking that the type of interim constitutionand restrictions of the constitutional assem-bly that were chosen in Iraq resemble morethe ambition of the fully negotiated prod-ucts of the late 1980s and 1990s than the rel-atively modest form of self-binding that

occurred in France in the 1940s. Paradoxi-cally, the process was one of imposition, butthe result resembles a thoroughly negotiatedsettlement.

Nevertheless, an interim constitution,which may in any case be generally desirableon normative grounds, had some plausibil-ity in a country of externally imposed revo-lution such as Iraq under the combinedcircumstances of weaker legitimacy and theparticular constraints and opportunitiesoffered by international law. Compared toindigenous revolutions carried out by aninternally supported elite, Iraq’s externallyimposed revolution has weaker conditions oftransitional legitimacy but is framed byobligations of an unbroken internationallegality. It is this double difference fromindigenous revolutions that, curiously,made the adoption of a detailed interimconstitution desirable and even likely.Without much legitimacy, the Americanoccupiers sought initially, as do all revolu-tionaries, to impose a permanent constitu-tion. Given the conditions of legality asprovided by international conventions,however, this goal could not be accom-plished by an external imposition, as ini-tially imagined. In addition, criticism of thisintention was voiced from inside Iraq by theGrand Ayatollah Ali al-Sistani: “These[occupation] authorities do not have theauthority to appoint the members of the

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22 See Janos Kis, “Between Reform and Revolution,”Constellations 1, no. 3 (1995), pp. 399–422; and AndrewArato, “The Occupation of Iraq and the Difficult Tran-sition from Dictatorship,” Constellations 10, no. 3(2003), pp. 408–24.23 Nevertheless, I have argued for the potential rele-vance of this model to Iraq in several articles, mostrecently in “Sistani v. Bush: Constitutional Politics inIraq,” Constellations 11, no. 2 (2004), pp. 174–92; and“Constitution-making in Iraq,” Dissent (Spring 2004);available at www.dissentmagazine.org/menutest/archives/2004/sp04/arato.htm.

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constitution writing council. There must begeneral elections in which each eligible Iraqican choose his representative in a con-stituent assembly for writing the constitu-tion. This is to be followed by a generalreferendum on the constitution approved bythe constituent assembly.”24 An interimconstitution provided the solution, but onlya relatively detailed variant imposing limitson the future constituent assembly couldsatisfy simultaneously the political goals andthe legal requirements. The question iswhether under such circumstances aninterim constitution of this kind could besuccessful without some of the politicalinstitutions that could sustain it, or whetherinstead it would become reduced to a purelystrategic instrument that could not evensucceed in constitutionalizing the process ofconstitution making, a goal that even mini-mal interim constitutions can accomplish.

In all revolutions the legitimacy of therevolutionary elite feeds on a double source:its act of liberation from a hated old regimeand its promise to establish a far better newone.25 Initially only the first claim can betested. In the case of Iraq’s externallyimposed revolution, however, there is both achronic lag of legitimacy that neither indige-nous revolutionary agents nor external lib-erators from foreign occupiers have to face.Here the liberators appear from the outset asoccupiers. Their agents are agents of anoccupying power. Repeated attempts have tobe made therefore to manufacture legiti-macy by inevitably awkward public rela-tions, by pictorially representing Iraqisociety in ethnically and religiously “bal-anced” consultative bodies, by trying to gainthe support of respected public figures, byactivating traditional structures like tribes,and by trying to create the aura of constitu-tionalism in an interim constitution. In theend, of course, nothing short of free elec-

tions will succeed in ensuring legitimacy.Democratic elections, however, if really freeand competitive, may be won by forces mostable to challenge and confront an occupa-tion considered illegitimate. While it is rela-tively easy to exclude political forces fromparticipating in various co-opted and satel-lite instances, it is much more difficult toexclude parties and groupings from contest-ing free elections if they are willing to play bythe electoral rules. Thus, the one source oflegitimacy that may justify the occupation asliberation could lead to its final denuncia-tion.26 Without elections, however, the bod-ies that would produce interim rules of thegame would have a built-in legitimacy prob-lem. In countries such as Hungary andSouth Africa, it was possible to turn this dis-advantage into a constitutional advantageby organizing a two-stage process. A two-stage process was eventually also adopted inIraq, but (I will argue) without the supple-mentary forms of legitimacy that would beneeded to sustain the process.

The external relations of states are governedby international law, and in an externallyimposed revolution there is thus not the com-


24 Ali al-Husaini al-Sistani, June 25, 2003; translation byJuan Cole in Informed Comment, www.juancole.com/2003_07_01_juancole_archive.html#105721532519162684.I have slightly altered the terminology, with his agree-ment. For versions of what was planned, see Noah Feld-man, “Democracy, Closer Every Day,” New York Times,September 24, 2003, p. A27; Steven Weisman, “PowellGives Iraq 6 Months to Write New Constitution,” NewYork Times, September 26, 2003, p. A1; and Patrick E.Tyler, “Iraqi Groups Badly Divided Over How to Drafta Charter,” New York Times, September 30, 2003, p. A14.25 Hannah Arendt, On Revolution (London: Faber andFaber, 1963).26 This is why electoral legitimacy was so ofteneschewed even on the local level, even in the south,where there were no security reasons in 2003 againstholding elections. See David Leigh, “General Sacked byBush Says He Wanted Early Elections,” Guardian,March 18, 2004; available at www.guardian.co.uk/Iraq/Story/0,2763,1171880,00.html.

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plete legal rupture that characterizes indige-nous revolutions. Especially since the signingof the Hague Conventions, as affirmed by theGeneva Conventions and Security CouncilResolutions 1483, 1511, and 1546, the occupationof Iraq is a legally regulated matter. Law estab-lishes both opportunities and limits for occu-pying powers. So long as the occupying poweris willing to play by these rules and make use ofthe institutions and offices of the world body(at least to some extent), this can partiallycompensate for missing legitimacy at thebeginning of the constitution-making effort.International legality can authorize at leastsome of the components of the constitution-making process, including the drawing up ofinterim legal arrangements. It is indisputable,however, that the available form of legality,unlike the legal continuity of transitions fromSpain to South Africa, also interferes with con-stitution making by the occupying power.Thiswas recognized in Japan by both MacArthur’slegal staff and Japanese experts.27 Specifically,international law seems to be predisposedagainst constitutional imposition by an occu-pying power and perforce its domestic agents.According to Article 43 of the 1907 Hague Con-vention, “The authority of the legitimatepower having actually passed into the hands ofthe occupant, the latter shall take all steps in hispower to re-establish and insure, as far as pos-sible, public order and safety [civil life], whilerespecting, unless absolutely prevented, thelaws in force in the country.”28 According tomany international lawyers this is still valid lawin spite of the usual problems with enforce-ment and the possibility that the SecurityCouncil may permit what the treaty hasbanned: a significant role for the occupyingpower in constitution making.29 “The objec-tive overall is not to change constitutionalarrangements . . . but to protect them,”accord-ing to The Responsibility to Protect. Readingthese lines we cannot tell which meaning of

“constitutional” the authors have in mind:regime (after all, the cause of intervention) orconstitutionalism (something that did notexist in such cases and would have to be estab-lished).30 Yet even in the case of authoritarianregimes overthrown from the outside, case lawseems to bear out the claim that the Hagueobligation, which pertains to all regimes, notonly constitutional ones, remains valid.31

In Japan, the restraints of international lawwere “adhered to”and the ban against externalimposition was formally evaded by keepingthe actual constitution-making process a care-fully guarded secret and allowing the legallyelected, last imperial Diet to enact formally theentirely new constitution according to theamendment rule of the old 1889 Meiji Consti-tution. Unlike Japan and even Afghanistan,there was, however, no parliament with tradi-tional legitimacy in Iraq. A detailed type ofinterim constitution was therefore intended tosupply the solution. If there was to be imposi-tion, it could be first answered that it would be

34 Andrew Arato

27 Shoichi, The Birth of Japan’s Postwar Constitution,pp. 90ff.28 The Avalon Project at Yale Law School, Laws of War:Laws and Customs of War on Land (Hague II), July 29, 1899(Washington, D.C.: Government Printing Office, 1968).29 See Simon Chesterman, “Occupation as Liberation:International Humanitarian Law and Regime Change,”pp. 51–64, this journal.30 ICISS, The Responsibility to Protect (Ottawa: IDRC,2001), p. 25.31 I focus only on the case involving the United States.Already in Japan in 1945 the American occupiers recog-nized that their self-imposed tasks were not easily con-sistent with international treaties outlining the goals offoreign occupation. These presupposed either outrightannexation or the establishment merely of a sympa-thetic government to be the only goals of foreign occu-pation. Nevertheless, it has been documented that inJapan in 1946–47 the Hague Convention played a strongrole in the formal passing of the constitutional draft inspite of the fact that the document was originally pro-duced and imposed by MacArthur’s Government Sec-tion sitting “as a constitutional convention.” SeeShoichi, The Birth of Japan’s Postwar Constitution, pp.79, 92–93.

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Iraqis themselves who would impose the(American appointed) Governing Council.When that answer predictably did not satisfy,it could be claimed that only an interim set ofrules would be imposed. This would notchange Iraq’s legal order in an illegal manner,because the changes would not be permanentsince the TAL leaves the task of final constitu-tion making to a freely elected assembly.

The strategic reasons for introducing theIraqi interim constitution are clear. And to theextent that this particular interim constitutionwas intended to become permanent in manyrespects, its creators can also rightly be accusedof seeking to avoid international obligationsthrough subterfuge. Even if all that is true, itremains an open question whether Iraq’sinterim constitution possesses the featuresthat could make it a justified and successfulinitiative as a provisional basic law seeking toblock dictatorship and promote legitimacyand learning. In the following section I willargue that on the whole it does not.

THE FAILURE OF LEGITIMATION

Separating liberation and constitution in themanner of Arendt’s concept of revolution, onecould believe with some (though incomplete)justification that in Saddam’s Iraq liberationhad to be externally imposed. Moreover, itcould also be believed in good faith that the ini-tial imposition of the beginning of a demo-cratic process of some kind perhaps could nothave been avoided in a country like Iraq, full ofundemocratic scenarios. The illegitimacy ofIraq’s interim constitution is due to the mannerin which it was openly imposed by the U.S.-ledCoalition Provisional Authority (CPA) in earlyMarch 2003, at a time when many other sce-narios were imaginable and imagined by,among others, the officials of the UnitedNations.32 It was a key step in a series ofimposed solutions that included the establish-

ment of the Governing Council in the summer,the November 15 “agreement” in the fall of2003,and the choice of membership of the pro-visional government in May 2004.33 Not onlywas there lack of legitimacy, but also a spectac-ular process of delegitimation with the GrandAyatollah Ali al-Sistani as its main protagonist.In the end, Sistani managed through clevermaneuvering to block the legitimation of theinterim constitution by international law, butonly by accepting a very poorly regulated pro-visional government as the guardian of theprocess of preparing for free elections.34

The process of constitution making reap-pears in its structure of authority. Especiallyin the case of a new constitution, its legalvalidity is contingent upon legitimate ori-gins. Why should this rather than someother document carry the obligation to beobeyed? The power to impose cannot alonedecide this question. In the case of Iraq’s


32 See Jamal Benomar, “Constitution-Making after Con-flict: Lessons for Iraq,” Journal of Democracy 15, no. 2(2004), pp. 81–95.33 For Brahimi’s thoughts on the process, see TerenceNeilan, “U.N. Envoy Urges Iraqis to Give New Leaders aChance,” New York Times, June 2, 2004, online ed. “Mr.Brahimi struck a mildly surprising note when, in answer toa reporter’s question, he referred to . . . L. Paul Bremer III,as ‘the dictator of Iraq.’‘He has the money,’ he said.‘He hasthe signature. Nothing happens without his agreement.’”34 In a letter to the UN secretary-general he wrote: “It hasreached us that some are attempting to insert a mentionof what they call ‘The Law for the Administration of theIraqi State in the Transitional Period’ into the new UNSecurity Council resolution on Iraq—with the goal oflending it international legitimacy. This ‘Law,’ which waslegislated by an unelected council in the shadow of Occu-pation, and with direct influence from it, binds thenational parliament, which it has been decided will beelected at the beginning of the new Christian year for thepurpose of passing a permanent constitution for Iraq.This matter contravenes the laws,and most children of theIraqi people reject it.” See “UN Resolution Passes Unani-mously,”Informed Comment, www.juancole.com, June 9,2004; and John F. Burns,“Shiite Ayatollah Is Warning U.N.Against Endorsing Charter Sponsored by U.S.,” New YorkTimes, March 23,2004,p.A8. Sistani had his way, for now—SC Res. 1546 made no reference to the TAL.

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interim constitution, three methods werepursued to secure valid authorization:Iraqization, Security Council authorization,and political agreement. This would seem tohave been the right approach, but in thehands of the U.S. authorities each was justanother alibi for imposition. At each stage,the American authorities rejected proposalsfor the administration of Iraq (proposed bythe special representative of the secretary-general, Sergio Vieira de Mello, the directorof the Office of Reconstruction and Human-itarian Assistance, General Jay Garner(Ret.), and others) that would have made theprocess more autonomous, pluralistic, andconsultative.

“Iraqization”It is difficult to escape the impression thatBrent Scowcroft, the national security advi-sor of the George H.W. Bush administration,was speaking the collective mind of the gov-ernment at least when he maintained thatthe United States could not have gone to war(especially since there were no WMDs to befound!) to deliver power in this strategiccountry to its ideological enemies, the clientsof Iran. Thus no early elections were permis-sible.35 Accordingly, if the American author-ities sought not a determined outcome, atthe very least they wanted to have outcomeswithin a determined range (in particular agovernment that could be represented in theUnited States as a significant improvementon the old regime, not least because it wouldbe open to American influence and perhapseven some kind of long-term presence.) Theuncertainty that is necessary for the demo-cratic process could not be permitted. Andcertainty could be achieved only if the auton-omy and pluralism of the participating eliteswere dramatically reduced.

Whatever their intentions, the Americanauthorities deluded themselves into think-

ing that it was entirely unproblematic toenvision an Iraqi transition in which consti-tution making is the task of agentsappointed by, responsible to, and account-able to them alone. The attempt to representthe imposition as having been carried out byan Iraqi authority failed. Indeed, thisapproach made little sense in a world accus-tomed to the hierarchical world of the civillaw, where each legal jurisdiction gains itsauthority from a higher one.36 It was thusobvious to all that whether drafted by theGoverning Council, its constitutional com-mittee, or a new body co-opted by theseinstitutions, the authority of the constitu-tion would derive either from the CPA,which appointed these bodies, or from thebody that appointed the CPA, established itsjurisdiction and prerogatives, and reservedthe right to revoke it at any time. The rightsof the Governing Council and its offshootsare a function only of the rights of the occu-pying authority itself. And as we have seen,the CPA did not have the right, even in itsown view, to impose upon Iraq a constitu-tion.

At the same time the CPA never managedto actually stay out of the supposedly Iraqizedprocess. In appearance, the interim constitu-tion was a product of the Governing Counciland its Iraqi experts. In reality, the CPA and itsleader, Paul Bremer, played a decisive role inthe process. When the concessions to Islamiclaw threatened to become embarrassing forthe Americans, Bremer threatened to veto therelevant provisions. Many members of the

36 Andrew Arato

35 Sistani never bought the argument that electionswere not possible before setting up the first legal provi-sional government. There is a lot of documentationthat the Iraqi census experts agreed with him last win-ter, and the idea of using ration cards for registrationwas floated already then.36 See Hans Kelsen, General Theory of Law and State,trans. Anders Wedburg (Cambridge: Harvard Univer-sity Press, 1945).

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Governing Council complained of the coup-like, accelerated manner in which the wholedraft was pushed through to meet American(presumably electorally conditioned) dead-lines. All outside participation was mini-mized, and after the leaking of some veryearly drafts complete secrecy was preserved.The final draft was entirely unavailable untilthe actual signing, and was thus exposed tono criticism until the five Shiite members ofthe Governing Council threatened not tosign the document. This threat was itselfapparently neutralized when the CPA madeclear that without immediate signing, thetransfer of sovereignty envisioned for June30 (that occurred on June 28) would be injeopardy and the nonsigners would have totake the responsibility for the continuedoccupation.37

Security Council AuthorizationThe CPA’s hierarchical and operationalauthority had to be shored up, and this couldbe done only through its gaining internationallegal legitimacy. While there remains somedoubt that even a Security Council resolutioncould free a country from the obligations ofan occupying power under Article 43 of theHague Conventions, there seems to be anemerging consensus among internationallawyers to this effect.38 Thus it was notinsignificant that while confirming the HagueRegulations in general by “reaffirming theright of the Iraqi people to freely determinetheir own political future,” the U.S.-draftedSecurity Resolution 1511 seemed to accept, ifambiguously, an earlier project of constitu-tional imposition by the CPA through theagency of the Governing Council. The text ofthe resolution reads: “Welcoming the deci-sion of the Governing Council to form apreparatory constitutional committee toprepare a constitutional conference that willdraft a constitution that will embody the

aspirations of the Iraqi people. . . .”39 It isimportant to note, however, that the sameresolution does not assume that the Govern-ing Council is sovereign. Instead, veryunclearly, it states that the Governing Coun-cil “without prejudice to its further evolu-tion, embodies the sovereignty of the state ofIraq”—which seems to mean that the Gov-erning Council symbolizes a sovereigntythat it cannot exercise, while what the CPAexercises is short of sovereign powers. This isconfirmed by the long subsequent discus-sion of the restoration of sovereignty onJune 30. Since constitution making is pre-eminently a sovereign function, supportersof the interim constitution felt that it wasnecessary to seek another Security Councilresolution that explicitly authorized it andthe process of its production. This was pre-vented, however, by Sistani, with the resultthat the international authorization of theTAL never took place.

Political AgreementLegitimation is by its nature linked to therule of some over others, and we can agreewith Max Weber that neither pure imposi-tion nor pure agreement can be the starting


37 There are also reports that the Kurdish members—unopposed by the CPA—threatened to withdraw fromthe whole process. It is very likely that both threats werebluffs, because President Bush had the American elec-torate, and the Kurds, Turkey, to worry about, if they car-ried them out. But even the Shia members had a lot atstake in the continued relevance of the Governing Coun-cil, and possibly in the governmental formula theyexpected to emerge if the interim constitution was signed.38 See Chesterman, “Occupation as Liberation.”39 Note, however, that this language does not decide howthe “constitutional conference” would be selected, andhence does not exclude an elected body. It speaks only of“drafting” and not of “promulgating” or “enacting”without, e.g., popular ratification. As far as the prepara-tion of the constitutional conference was concerned, theresolution called for “national dialogue and consensusbuilding,” something that did not happen during thesecretive drafting of the interim constitution.

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points of a legitimate new political order.40

Any agreement, no matter how wide, muststill be imposed against members who donot agree. Two issues should be distin-guished in this context: the degree of exter-nal imposition and the degree of internalpluralism. It is now rightly customary to dis-tinguish between the imposed character of the post–World War II constitution-making process in Japan and the mainlyautonomous, deliberative process in Ger-many, which was ultimately based on freelyelected provincial assemblies.41 The case ofGermany shows that it is possible to have alow degree of imposition and a high level ofpluralism under foreign occupation. In Iraq,the (illogical, but self-serving) attitude of theCPA and its legal advisors seems to have beenthat since there is imposition anyway, theUnited States might as well impose its choiceof a bilateral structure of negotiation andselect entirely on its own the actors “repre-senting” a society incapable of generating itsown politics.

This assumption was based on a funda-mental misjudgment both of the importanceof pluralism and the emerging organizationof Iraqi politics. Of course, the pluralism of asociety can never be mirrored by politicalprocess, and pluralistic agreement always hasa dimension of exclusion and imposition. Yetso long as it incorporates genuine opposition,pluralistic politics simulates and even pro-motes the pluralism of society. Even a partialpluralism in politics stimulates critique,accountability, and the need to justify deci-sions with good arguments and valid claims.Finally, while later agreements cannot takeaway the fact of initial imposition, they candiminish its negative impact on those whowere previously excluded. These argumentsare especially relevant to the constitution-making process when the rules of the politicalgame are being decided. Political participa-

tion in such a process ought to be as broad aspossible and should in principle expand. Theworst-case scenario is when the pluralism ofsociety is developing much faster than that ofthe framework of representation. Under suchcircumstances, societal pluralism leads actorsto negotiate outside the formal framework ofbargaining and compromise, even engagingin armed struggle. This is quite clearly whathappened in Iraq.

The level of political pluralism of Iraqisociety at the time of the formation of theGoverning Council is debatable. But it isastonishing that since then, during the lastyear and a half, there has been no attempt toexpand participation in spite of the fact thatmany new political actors emerged. Againstthe recommendations of the first report ofthe special representative of the secretary-general, Lakhdar Brahimi,42 neither theNovember 15 agreement nor the drafting ofthe interim constitution involved an exten-sion of inclusion or participation. In theGoverning Council, the principle of repre-sentation followed was an attempt to picture

38 Andrew Arato

40 Max Weber, Economy and Society: An Outline of Inter-pretive Sociology (Berkeley: University of CaliforniaPress, 1978).41 See Hideo Otake, “Two Contrasting Constitutions inthe Postwar World: The Making of the Japanese andWest German Constitutions,” in Yoichi Higuchi, ed.,Five Decades of Constitutionalism in Japanese Society(Tokyo: University of Tokyo Press, 2001), pp. 43–72. Andyet, imposition worked in Japan only becauseMacArthur started out with a fundamental concessionto the Japanese ruling elite: the survival of the “sym-bolic emperor” and the formal continuity of the stateand the legal order. In the Iraqi case the American occu-pation authorities seek to impose a new arrangementwithout any such fundamental concession to either anelectoral (as in Germany) or traditional (as in Japan)principle of legitimacy.42 “The Political Transition in Iraq: Report of the Fact-Finding Mission,” UN Doc S/2004/140, (February 23,2004); available at www.un.org/News/dh/iraq/rpt-fact-finding-mission.pdf.

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the ethnic, religious, and gender divisions ofsociety—an idea more suitable to a supremesoviet than a genuine deliberative assembly.Moreover, important actors such as the Arabnationalist parties, the more radical wing ofthe Shia, and even many important Sunnireligious groups were excluded from thisbody. Apparently, the only concession Vieirade Mello achieved, with his great diplomaticskill, was the inclusion of the Iraqi Commu-nist Party. While the Kurdish members ofthe Governing Council do represent themajor political forces of the Kurd provinces,this is less true for the Shia members takenas a whole and is not at all the case for theSunnis. All of the latter and some of the for-mer are exiles representing different inter-ests and factions of the occupyingauthorities. The Governing Council thushad little “upstream” legitimacy in Iraq, andits scarcely disguised attempts to hold on topower before, during, and after the transferof sovereignty under an astonishing varietyof formulas further decreased this alreadyweak legitimacy.

Can the Iraqi interim constitution’s lack ofupstream legitimacy be compensated for by“midstream” legitimacy? As in all casesinvolving a two-stage process, such substitu-tion would depend on the successful andlegitimate execution of the electoralprocess—provided in this case by the TALand the electoral rule produced by UN advi-sors.43 There have been two major roadblocksto the achievement of electoral midstreamlegitimacy. One is the Sunni insurrection,which the Americans have insisted on dealingwith through primarily repressive means. It isevidently not possible to hold elections wherethere is an open insurrection, and the chancesof fully suppressing it in the Sunni triangleare very small, especially given the strategicobtuseness of the Americans, who, after hav-ing disbanded the army, left the rest of the

Sunni elite more or less outside the wholeprocess of political bargaining. Thus hard-liners and moderates in that community arecontinually driven together, feeding theinsurrection with new recruits even as someare militarily defeated. Now, after the siege ofFallujah, the chances of an open electoralboycott will increase, even if ultimately somewill participate given the possible benefits.Given the TAL’s unamendable rule and Sis-tani’s very strong pressure, postponement ofelections is not an option, even if the currentprovisional government would love to con-tinue to function indefinitely as such. Giventhe proportional representational rule withone national district, Sunni Arabs would thusbe dramatically underrepresented if electionswere held under anything resembling thecurrent conditions, simply because their totalvote would be depressed.44 And a constitu-tional assembly operating without one of thekey national-religious groupings, the SunniArabs, could not be legitimate in the eyes ofthose excluded.

The second roadblock is what might becalled the “Shiite paradox”: the only way tostop Shia religious parties from getting a bigmajority in the new assembly is throughfraud, the construction of a governmentallist supported by the media, intimidation bythe United States, or all three of these meas-ures combined. Under such conditions, theelection would not produce a legitimate


43 I leave aside the co-opted National Conference of Julyand the scandalous single-slate election organizedwithin that body for a consultative National Council.See note 57 below.44 The UN’s mistake lay not in choosing a proportionalrepresentation system, which is most suitable for con-stitutional assemblies, but rather in its choice of onenational list instead of provincial ones. The latter wouldhave provided for adequate Sunni representation evenwith a low turnout.

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result. If, however, the Shia religious partiesare allowed to win in a clean election, mid-stream legitimacy would be achieved, butthe force that would control the assemblymight very well wish to repudiate the TAL.Legitimacy can thus only be generated forthe process at the cost of possibly jeopardiz-ing the TAL itself, and along with it the pos-sibility of an assembly practicing significantself-limitation.

THE INHIBITION OF LEARNING

The Iraqi interim constitution accomplishesremarkably badly the second main purposeof interim constitutions—to facilitate con-stitutional learning during an experimentalperiod before a permanent constitution isinstituted that is insulated against easy alter-ation.45 There are at present three distinctrules of change in or associated with theTAL. Of these, two (1 and 3 below) are men-tioned in the document, and a third (2) fol-lows from the language:

1. A good part of the TAL is amendable by avote of three-quarters of the NationalAssembly and the unanimous consent of thethree-member presidential council (Article3A).46 There are, however, extensive una-mendable provisions: rights covered underchapter 2, the time frame of the transition asdefined by the interim constitution, thepowers of regions and governorates, andregulations having to do with Islam and reli-gions. After free elections, this self-referringrule can be used to change itself, before anyother part of the constitution is changedthrough the new rule.47

2. Since there is no National Assembly untilfree elections can be held between lateDecember and January of 2005, theinterim constitution is by implicationunchangeable for the period from June 28

to sometime after the elections, when thenew National Assembly first meets.

3. The TAL states only that the NationalAssembly “shall write a draft of the con-stitution of Iraq” and that this draft willbe “presented for approval in a popularreferendum.” We don’t know by whatmajority the assembly must agree on adraft, and if there are possible vetoes. Themost convenient way of reading the text isthat the draft of the permanent constitu-tion fully replacing the interim one must

40 Andrew Arato

45 Niklas Luhmann, in A Sociological Theory of Law(London: Routledge and Kegan Paul, 1985), wrote ofnormative learning “not to learn.” This dimension isespecially important for constitutions if one is to havethe two-track structure of constitutionalism rightlystressed in Bruce Ackerman, We the People (Cambridge:Harvard University Press, 1991). Learning constantlywould threaten to dissolve the line between constitu-tional and normal politics. Nevertheless, under a newconstitution there must also be an opportunity to cor-rect obvious deficiencies unanticipated by the framers,as in the case of the U.S. election of the president/vice-president on a single ballot, corrected by the 12thAmendment of 1804. In this sense, an interim constitu-tion properly constructed extends the two-track struc-ture to constitution making itself by providing fornormal rather than extraordinary alteration for aperiod of time. See Andrew Arato, “ConstitutionalLearning,” in Civil Társadalom, Forradalom es Alkot-mány (Budapest: Mandátum Press, 2000); with a newand expanded version forthcoming in Theoria, where Idraw on the competing perspectives of Stephen Holmesand Bruce Ackerman.46 In the case of ordinary laws, unanimity of the councilis required for a veto (Articles 36 and 37).47 Since the makers of the interim constitution neglectedthe elementary requirement to enshrine the amendmentrule if they wished to make anything else unchangeable,everything in the TAL can be changed after free electionslegally, using a two-step procedure. The same mistakewas made by the authors of Article V of the U.S. Consti-tution, but then no one knew if self-referring rules werevalid or not. See the famous article of H. L. A. Hart,“Self-referring Laws?” in Essays in Jurisprudence and Philoso-phy (Oxford: Oxford University Press, 1983), as well asPeter Suber, The Paradox of Self-Amendment (New York:Peter Lang, 1990).

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be approved by 50 percent + 1 vote of theNational Assembly,48 and then (as isclearly stated) by 50 percent + 1 vote of thepopulation in a national referendum aslong as two-thirds of the voters of threegovernorates do not vote against ratifica-tion (Articles 60 and 61). Having to dowith governorates, this rule may havebeen meant to be unchangeable, but therestriction would be useless since theamendment rule is not enshrined.

As to the second “rule,” which is not statedformally, it is clear that preventing changesduring the period from June 28, 2004, to, say,January 31, 2005, means extreme rigidity forat least seven potentially crucial and difficultmonths. If elections were postponed thiswould be true even longer, except for the factthat the rule does not allow the postpone-ment of elections for which the TAL has seta date on or before January 31, 2005 (Article2B(2)). How problematic this rigidity isdepends on the asymmetric conditions oflegitimacy already discussed, as well as issuesof content that I will touch on very briefly. Ifthere is a lot that is wrong with the regula-tions that were hastily drawn up under theaegis of narrow political inclusion, if thecurrent unregulated status of the provi-sional government proves extremely trou-blesome, or if conflictual actors like theKurds and the Shiites move toward a newmodus vivendi, as they very well might whilestill under an “electoral veil of ignorance,” itis highly likely that the no amendment rulewould be politically challenged by forceshaving more and broader support than theauthors of the document had or will have.49

The same would also be true if there was amove to postpone elections after all.

Things become even more problematic inthe period when amendments become pos-sible (rule 1) and when the permanent con-

stitution is to be drafted and ratified (rule 3).These two rules together constitute extremeconsociational limits on the changing of theinterim constitution. Theoretically, three-quarters of the National Assembly (with theagreement of all three members of the Pres-idency Council) can actually pass amend-ments to the interim document, except itsunamendable sections, during the poten-tially extended period that the permanentconstitution is being drafted. Practically, therepresentatives of any of the three ethno-religious groups (Shia Arab, Sunni Arab,Sunni Kurd) are likely to have over 25 per-cent of the seats, and possibly, if that con-vention holds, one member of thePresidency Council. Thus any of them canveto any amendment twice over. It is verylikely that Arab nationalist, strongly secular,or Baghdad deputies, deputies from oil-richregions, or whatever other combination willalso have 25 percent of the votes in theassembly. Thus the possibility for vetoes ofamendments would be greater than whattoday we could imagine by focusing onexisting power constellations. Of course,some amendments may still pass through


48 I am inferring a simple majority, since nothing else isstated. The National Assembly is free to draw up its owninternal procedures (Article 32A), which would have todeal with this question. If the draft constitution is inter-preted as a bill, the Presidency Council would arguablyhave veto power over the draft before it is submitted tothe people, which could mean either veto by only one,or, more likely, by all three members (Articles 36C and37). But the constitution could be interpreted as a spe-cial law, wherein the final act of enactment referendareplace the executive that is not mentioned in this con-text by the very poorly drafted text.49 Strictly speaking from the legal point of view, an una-mendable constitution can only be replaced as a whole,though politically speaking, partial illegality regardingits application (through creative interpretation, disre-gard of the amendment rule, etc.) is also possible. Ineither case the transitional legal order that interim con-stitutions are meant to establish and protect would beseverely endangered.

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bargaining and compromise. But when animportant amendment is blocked in the faceof either three-quarters of the deputies andall three members of the presidium or 95percent of the deputies, along with the pres-ident and one vice-president, a “runawayconvention” that refuses to be bound by thewill of the illegitimate Governing Council orthe foreign CPA would become very likely.

Finally, and most seriously, the much dis-cussed issue of a veto of a draft of a perma-nent constitution by three provinces orgovernorates would not only increase therigidity of the overall constitutional setupbut could very easily transform an interimconstitution that is already very difficult toamend into an indefinite or even a quasi-permanent constitution. The vote of a sim-ple majority passing the constitution wouldbe too easy a requirement, since only draftsthat have significant parliamentary consen-sus should be submitted to the population.Given the possibility of provincial vetoes,one can assume that the National Assemblywould internally generate a consensual rulethat could be (and probably will but shouldnot be) as high as the 80 percent hurdle inWest Germany (where the legislatures of atleast five of the fourteen Länder could havevetoed the Grundgesetz). If, though unmen-tioned, there is the possibility of executiveveto, its use by one member of the Presi-dency Council or presidium would be toohigh a consensus requirement, but a vetowould not be unreasonable if the presidiumunanimously (and perhaps a majority oftwo of its members) were against a draft.What is completely unreasonable is the pos-sibility that three small provinces out ofnineteen (15.8 percent) (and about 10–11percent of the voters) would have a vetopower over a constitutional draft.

Can the rules of change themselves bechanged within this rather sketchy system of

rules? After June 28 the provisional govern-ment in this “phase one” has no amendmentpowers under the interim constitution. TheTAL and the TAL Annex confirm this, sincethey do not give any legislative powers tothis “sovereign” entity. In my view one can-not plausibly deny it the revolutionaryoption (however unrealistic) to repudiate theTAL as a product of a foreign force with noconstituent powers in international or Iraqilaw, or as a result of a coerced agreementbetween that force and its Iraqi agent. Whileno one knows where the authority to do thisoriginates (aside from well-establishedauthoritarian practice in many countries,unfortunately), the TAL could also be setaside or suspended (in whole or in part) forthe country as a whole or for specific territo-ries. A new declaration of martial law, state ofemergency, or an order of legal force byAllawi could very well have such result.

In summary, the issue of constitutionallearning fares very poorly in the TAL becauseit is basically unamendable in phase one, par-tially unamendable in phase two, and itsamendment rule and the ratification rule ofthe new constitution are extremely restric-tive. In the absence of a strong and activistconstitutional review, those seeking neces-sary constitutional change will tend to engagein radical extralegal, and legally speaking,revolutionary options (including coups andautogolpe), that threaten to undermine whatwas learned in the interim constitution. Wasthis failure of design inevitable? The answer isagain a strong no. This time, however, theblame lies only indirectly (and not only) withthe U.S. authorities. Quite obviously, withouteven knowing the details of the negotiations,it was the Kurds who sought to enshrinethrough various consociational vetoes(amendment rule, ratification rule, even apartial nullification of federal laws option, asin Article 54B) the federal and regional

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autonomy or quasi independence achievedthrough the negotiations leading to the TALthat in fact legalized de facto arrangements.Because it was a question of both de factoarrangements that would be defended witharms if necessary and their most stable andenthusiastic allies, the Americans supportedthe Kurds until almost the end (they did notaccede to Kurdish demands to seek SecurityCouncil authorization for the whole rigidTAL package).50 The Kurds (and their foreignadvisors), however, made the fundamentalmistake of wishing to have multiple guaran-tees to protect the same autonomy provisionsthat were probably not even under any greatthreat from the Shiite majority. They failed torealize that they could have tried to enshrineonly the parts of the interim constitution bya more difficult amendment rule, along withthe amendment rule itself.As to the final con-stitution, they needed to agree only on someunchangeable constitutional principles pro-tecting regional and federal autonomy, ratherthan holding the whole permanent constitu-tion hostage to their veto.

THE FAILURE OFCONSTITUTIONALISM?

Assuming that an interim constitution fails inits more ambitious tasks it may neverthelesssucceed in imposing legal limits on constitu-tional assemblies and provisional govern-ments, thus applying constitutionalism to theperiod and process of constitution makingitself. Unfortunately, the Iraqi interim consti-tution will not easily achieve even this goal.This is not only because of its much weakerform of authorization than, for example, theFrench préconstitution of 1945, but because ofits design failures. It is a combination of weakauthorization (or “upstream legitimacy”) andan overly ambitious design that rigidly ties thehands of the freely elected assembly, making it

likely that a process of unbinding will occuronce the assembly meets. This unbinding willbe achieved either through agreement and for-mal amendment or through subversion oropen repudiation. A successful majoritarianrepudiation of the TAL would lead in principleto the sovereign dictatorship model of consti-tution making. Freely elected national (consti-tutional) assemblies regularly emancipatethemselves from their conveners, and such arevolutionary act is much more likely whenthe latter are regarded as illegitimate.51

Thus, by not including authorization for theTAL in Security Council Resolution 1546, theU.S.authorities pretty much conceded Sistani’sdemand that the elected National Assemblynot be bound by that interim constitution.Brahimi has firmly supported this view.52 He


50 See Spencer Ackerman, “Iraq’d: Panic on the Streetsof Kurdistan,”New Republic Online, June 10, 2004; avail-able at www.tnr.com/blog/iraqd?week=2004-06-04.51 Jon Elster, “Arguing and Bargaining in Two Con-stituent Assemblies,” The Storrs Lectures at Yale LawSchool, 1991.52 “[Brahimi speaking] I welcome the clarification . . . byAmbassador Bremer, who . . . stressed that ‘the InterimGovernment will not have the power to do anythingwhich cannot be undone by the elected governmentwhich takes power early next year.’ The fact is that theTAL is exactly what it says it is, i.e., a transitional admin-istrative law for the transition period. It is not a perma-nent Constitution. Indeed, it is not a constitution at all.The Transitional Law (or any other law adopted in thepresent circumstances) cannot tie the hands of theNational Assembly which will be elected in January2005 and which will have the sovereign responsibility offreely drafting Iraq’s permanent constitution.” “State-ment of the Special Adviser to the Secretary-General,Lakhdar Brahimi,” Security Council 4952nd Meeting,April 27, 2004; available at www.un.org/apps/news/infocusnewsiraq1.asp?NewsID=730&sID=1. I cannottell if Brahimi deliberately or inadvertently confuses“interim government” in Bremer’s formulation with“Transitional Administrative Law” in his own. The twoare not the same as to their ability to bind. An interimexecutive obviously cannot bind a constitutionalassembly. An interim constitution, as in South Africa,can, at least in principle—and the TAL definitely triesto regulate the constitution-making process under theNational Assembly.

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maintains that the freely elected (sovereign!)assembly cannot be bound by interimarrangements, which can become law only tothe extent that the new assembly reenactsthem. If this view prevails, it is reasonable toassume that the assembly could then replaceboth the amendment rule and the ratifica-tion rule as it sees fit, before rewriting orentirely replacing the TAL. Moreover, itcould do so through a simple majority rule(unless it chooses to establish a different one,again by majority rule). Of course such aprocedure would violate not only the text butalso the spirit of the interim constitution,which would be entirely eviscerated if thisrevolutionary scenario were followed. Toavoid such majoritarian implications,Brahimi quotes Bremer:“Iraqi unity requiresa constitution that all of Iraq’s communitiescan support. It is a fundamental principle ofdemocracy that the constitution should pro-vide for majority rule but also protectminority rights.”53 This, however, refers tothe desirable result of moving from consoci-ationalism to constitutional protection ofminority rights. But in the case of anunbound assembly this outcome can only bethe result of voluntary self-limitation. Withthe interim constitution losing its bindingpower over the freely elected assembly, animportant opportunity would be lost—evenas democratic legitimacy was being regained.For the Kurds, who might thereby lose alltheir guarantees, these results would amountto a call for secession. In any case, this sce-nario would mean the complete failure of theminimal, constitutionalist rationale for hav-ing an interim constitution. If a Shiite-dominated assembly became fully unbound,the most likely constitutional project on theIraqi horizon would be based on undilutedmajoritarian popular sovereignty, with itsobvious attendant dangers of religious dicta-torship, civil war, or both.

Of course, the constitutional assemblycould still voluntarily enact and adhere to aset of new limits for itself and the govern-ment issuing from it. These limits would beeasy to break, however, and, even if theywere not, the achievement of constitutional-ist restraints would belong to the self-bind-ing assembly, its majority, and above allSistani, rather than to the TAL and itsauthors. Even with the best intentions, Sis-tani and his supporters could successfullysponsor a new set of (self-) limitations onlyif these could be first thoroughly renegoti-ated in a binding and solemn agreement ofthe relevant parties. Assuming (ratherimplausibly) some kind of highly desirableagreement among the main social forces bythis time, even a legal-constitutionalist sce-nario without a formal repudiation of theTAL is at least imaginable. The TAL, itsamendment and/or ratification rules couldall be amended legally as the interim consti-tution itself allows in principle changing thetwo relevant rules. Since, due to a likelyomission, neither the amendment rule (1)nor the ratification rule (3) are enshrined, orinsulated against amendments, it is possibleto amend either to require votes by qualifiedmajorities by using rule 1. While it is unrea-sonable to assume that exactly the sameminorities will vote to give up their ownminority veto, and thus amend the amend-ment rule itself, the same is not true regard-ing the ratification rule. Although unlikely,it is not unimaginable, for example, that 75percent of the assembly—which need notnecessarily include any Kurdish deputies—with the support of a Kurdish vice-presidentchosen by two-thirds of the assembly, thuspossibly by the Shiite and other nationalistdeputies, would abolish the rule allowingthree Kurdish provinces to veto a constitu-

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53 Ibid.

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tional draft in favor of a majoritarian refer-endum. That Kurdish vice-president, sincehe would wish to stay alive, would probablywant to trade his vote for a suitable agree-ment on federalist protections, culturalautonomy wherever Kurds live, and oil rev-enue distribution.

Given the possibility of either failure toproduce a permanent constitution or a vetoof a proposed draft by three governorates,the existence of the interim constitutionmay itself become a significant liability forthe constitution-making process and apotential rallying point for forces seeking tomaintain the status quo of the transitionalperiod, whether that is defined in terms ofextreme provincial autonomy, the power ofpolitical incumbents, or both. So far, forexample, the incumbents of the GoverningCouncil managed to survive in the InterimGovernment formed on June 1, in spite ofBrahimi’s efforts to prevent it. Theyremained dominant in the National Confer-ence held in July and in the undemocratic,single-slate elections there for a NationalCouncil.54 If after well-controlled, suppos-edly free elections, they similarly manage tocarry over their power into the new NationalAssembly (or at least the executive powerthat is based on it), they may prefer to actunder the interim constitution than underany new document that could emerge out ofthe National Assembly. Those who choose tosubvert a popular permanent constitutionwould not be facing a situation in whichthey would have to accept, in case of failure,either chaos or the open dictatorship of theconstitutional assembly. These forces (aswell as the voters of the three provinces)could instead rely on the survival of anundemocratic interim constitution that mayin fact better coincide with their interests.

The interim constitution in fact facilitatesthis possibility (which would be available

anyway unless a sunset clause were to havebeen attached to it) by providing for its ownsurvival, if a permanent constitution wererejected, for once in sufficient and ratherunambiguous detail (Article 60E). While theunsuccessful National Assembly would inthat case be dissolved, a new one would beelected, and operating under the interimconstitution, with all dates altered to keep tothe original time frames of a one-year term,possibly extended for six more months.There is no stated limit concerning howoften the same process would have to berepeated in case of repeated failure. Alongwith the possibility of six-month extensionsof the tenure of a National Assembly (Arti-cle 60F), the interim constitution couldbecome the framework for a system whoseincumbents would be changed every eight-een months. It is impossible to knowwhether the actual government of the coun-try in such a system would even operate onthe provincial or regional level—whichmight be the preference of the forces thatevery eighteen months or so reject a newpermanent constitution of a more central-ized system.

FAILURES OF RESTRAINT?

If, however, the TAL can neither be success-fully repudiated nor used through its ownnegotiated self-amendment to enact a finalconstitution—the result being instead totalimpotence and breakdown and the long-term survival of the interim arrange-ments—the constitutionalist restraintscould not be considered to have been suc-


54 “Iraq’s 1st Steps Toward Democracy Stumble. ShiitesSay Delegate Lists Were Rigged,” Agence France Presse,July 28, 2004; Betsy Pisik, “Power Struggles CripplingIraqi Democratic Convention,” Straits Times, July 28,2004; and “Iraq Selects Interim Watchdog Council,”Associated Press, August 18, 2004.

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cessful, since their purpose is to channelrather than fully inhibit action. Whether thisfailure of constitutionalism would mean thetriumph of dictatorship would dependupon whether the TAL amounts to a set ofplausible limits and restraints on the provi-sional government that would presumablystay in power until replaced by the nationalconstitutional assembly.

But which provisional government wouldstay in power? There are three possibilities.The first is the “government of fact” thatexists in the case of every revolutionary sce-nario but should go out of existence with theadoption of an interim constitution.55 Revo-lutionary governments by definition takepower outside the legality of the previousregime.56 In the Iraqi instance the CPA, alongwith its satellite, the Governing Council, wasthis government of fact, and its empower-ment by the Security Council under interna-tional law did not subject it to restraints thatcould be called constitutional. The enforce-ment of the Geneva Conventions is a matterleft to the discretion of the occupying poweritself, and its obligation not to change thelaws of the land is escaped in large part by theinterim constitution itself. To be sure, whenthe TAL came into effect, the CPA was dis-solved. Nevertheless, the American-led coali-tion’s armed forces remain under U.S.command, and the limits established by theTAL do not apply to this force.57 The govern-ment of fact—the U.S.-led coalition—con-tinues to exist in spite of the existence of aninterim constitution, and all internal acts ofrepression emanating from the “sovereign”government depend on its voluntary acquies-cence. With respect to this provisional gov-ernment the TAL has not even made theslightest attempt to provide plausiblerestraints at all; the rights contained thereinare not rights against the actual holders of themain means of violence.

Further, the interim constitution estab-lishes two (or more) provisional govern-ments, not one. The first (“phase one”),regulated by the TAL and its belated Annex,is to be in power until its actual replace-ment by a freely elected national constitu-tional assembly according to rules in theoriginal TAL (Article 2B). The second(“phase two”) is to be regulated by moreextensive institutions and rules providedby the TAL. The third, and so on forever, ifthe constitutional assembly fails to producea ratified new constitution, leading to theelection of a new one.

There are two very different structuresinvolved. The first provisional governmentunder the TAL Annex is clearly a dictator-ship formally speaking, at least where it isbacked by the requisite military power ofthe “government of fact.” 58 This is due tofeatures of the interim constitution itself.For example, there is an almost completedominance of the executive and no realseparation of powers is provided for. Theexecutive itself is admittedly dual: in orderto issue orders with the force of law(Annex, sec. 2), the prime minister needsthe approval of all three members of thePresidency Council. The new courts pro-vided for by the TAL (along with theSupreme Court capable of constitutionalreview of legislation) will be establishedsupposedly in this phase, but the latter hasa weak structure to begin with and was not

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55 See Beaud, La puissance de l’état, who credits the termto Maurice Duverger’s 1945 article “Légitimité des gou-vernements de fait.”56 Kelsen, General Theory of Law and State.57 See Robin Wright, “U.S. Immunity in Iraq Will GoBeyond June 30,” Washington Post, June 24, 2004, p. A1.58 I do not mean this in a pejorative sense; all provisionalgovernments unlimited by laws are dictatorships, whichI define as republican forms involving the unification ofpowers and the primacy of executive will over rules.

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clearly given powers of review of the acts ofthe executive and, in particular, “orderswith the force of law.”59 (There is to be nolegislation in phase one!) The NationalCouncil chosen by a National Conferencein elections totally controlled by the provi-sional government is only consultativeexcept for the very unlikely possibility of atwo-thirds repudiation of orders of legalforce (Annex, sec. 3). The only real restraintto the executive is provided by the elementof federalism, which is de jure in the firstphase only for the Kurdish region (Annex,sec. 2). Obviously wherever other de factopowers can check the Provisional Govern-ment, it can exercise no dictatorship. It is apeculiarity of the situation that the Ameri-can government of fact and its forces strug-gling to regain control do so for the benefitof a dictatorship, admittedly often to theexpense of even worse ones.

Further, the TAL and its Annex say noth-ing about emergency rules and the suspen-sion or bypassing of their own provisions.This is a very serious matter because the TALdoes have valuable rights that could benefitnot only open insurrectionists but also polit-ical opponents. Thus the regulation ofinevitable emergencies should have been ahigh priority under the given conditions. Infact an emergency order of legal force hasbeen already promulgated (Order of Safe-guarding National Security, July 6, 2004),one that to be sure declares that the TALcannot be abrogated “in whole or part”(Article 11); all the while a variety of rightsgranted by that document (assembly andassociation, Article 13C; movement, Article13D; demonstration, Article 13E; personalsecurity and due process rights, Article15B–I; property, Article 16) are potentiallytaken away or suspended (Article 3). Statesof emergency can be declared by the primeminister, with the consent of all three mem-

bers of the Presidency Council, for sixtydays, and can be renewed for thirty days asoften as the four can agree to do so. At thetime of the promulgation of the order therewas not yet a National Council whose two-thirds vote could have conceivably (but notin reality) vetoed it, and the order itself givesno role to this consultative body in the dec-laration or renewal of emergencies.60

All this is done on the basis of the Annexto the TAL permitting the issuance of gov-ernmental “orders with the force of law thatremain in effect until rescinded by futureIraqi governments,” which actually violatesthe same Annex’s ban against actions affect-ing the country’s “destiny beyond the lim-ited interim period.” (Note that a futuresuch order with the force of law couldreverse the earlier support for the TAL justas easily!) Thus the move puts executiveorders on the same level as constitutionallegislation, which is the legal essence of mod-ern dictatorship. In fact that dictatorialpotential was greatly enhanced by the finalregulation issued by Bremer (CPA Order#100, June 28, 2004), according to which theprime minister of the interim governmentinherits all the formidable and uncheckedpowers of the CPA (sec. 2, 1–2) and theCouncil of Ministers is identified as the


59 TAL, art. 44; Annex, sec. 2 combines weaker dimen-sions of both Marshall and Kelsen types of courts. Likea Kelsen-type European court, the Iraqi court is sepa-rated from the system of courts that could give it thepower of the whole judicial system and confirm its deci-sions on several levels; but, at the same time, standingfor political actors that could allow the Supreme Courtto intervene relatively early, even before a law takeseffect, is also missing.60 As this article was being completed, a sixty-day emer-gency has been declared by Prime Minister Allawi. See“In Wake of Attacks, State of Emergency Declared inIraq,” Associated Press, November 7, 2004. It is too earlytoo see how the TAL and its rights will be affected. Thesixty days take us into the electoral campaign, and theemergency can be renewed.

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“body vested with national legislative pow-ers” (sec. 2, 10). While it is added that thesepowers are to be exercised under law(including the TAL), it was indeed one of theCPA’s powers to promulgate, abrogate, orchange the interim constitution.

Finally, between the TAL and its Annexthere are no provisions concerning theremoval of the powerful head of govern-ment—the prime minister in phase one—which is an amazing omission for at least aneight-month period and maybe more.61 Thusif the legal position of dictatorship wereturned into a politically recognizable dicta-torship—characterized by endless states ofemergency and the postponement or openmanipulation of the electoral process—verylittle could be done (legally speaking) to stopAllawi in the first phase. There is no court todeclare his actions illegal, and no instancecapable of removing him. Thus, armed withthe legitimacy bestowed by Security CouncilResolution 1546, the new Iraqi executivecould also emancipate itself from the interimconstitution, all the more easily because thiscould be done by simply reducing the TAL toa paper constitution of the type well knownin the Arab world and especially Iraq.62

Again—draw the conclusion—this provi-sional government too is insufficiently con-strained by the TAL.

If the elections, however, do take place asthe TAL ordains (Articles 2B, 3A), the road isopen in principle to the provisional govern-ment of phase two. Assuming an electoralvictory for a side that wishes to abrogate theTAL, the Shiite majority, it is also logical toassume that the National Assembly wouldnot proceed to form a new provisional gov-ernment under it, thereby indicating its tacitadherence to the interim constitution. Thedanger would then be that the provisionalgovernment of phase one would stay inpower. Because of this possibility, Allawi

(who has indicated acceptance of the TALonly up to elections) may also support itsrepudiation. For a majority that did notwant him, or his type of provisional govern-ment, or a situation of dual power andpotential clash between that governmentand the assembly, it might then be better tochoose one of three perhaps less logicaloptions: first to allow the formation of a newprovisional government and then repudiatethe TAL; to repudiate it, but quickly renego-tiate and repass its parts allowing the forma-tion of a new government; or to renegotiateand to amend it legally—the best possible,though perhaps most difficult, solution.

If any of these three options were carriedout successfully—and it is a very big if—then some of the real virtues of the TAL’scurrent contents could come into play. Thecountry would have real separation of pow-ers between a genuinely representativeNational Assembly (chapter 4) and the exec-utive based on it, with the Supreme Court,too, playing a more important role given thefact that there is legislation instead of exec-utive “orders with legal power.” Yet the gov-ernmental structure potentially yields astrong executive organized around a primeminister with parliamentary responsibility(Article 38A). The constitutionalist checks,including rights (chapter 2), surviving fromthe TAL could now have a real role. The fed-eral and regional self-government provi-sions (chapter 8), with the exception of theannoying right of regional nullification, areworkable, and in the current state of Iraq

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61 The first article of the Loi constitutionnelle de 2novembre (préconstitution) provides for the possibilityof censure, vote of no-confidence, and the removal ofthe head of the executive.62 Brown, Constitutions in a Nonconstitutional World,pp. 86–87 (for Iraq). I am grateful to Prof. Brown forcalling my attention to Bremer’s CPA Order #100 in apersonal communication.

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probably mandatory. Even if a new constitu-tion were not adopted because of conflicts inthe assembly (as, for example, in Hungary),and the TAL somehow survived, in this sce-nario Iraq could hobble on with some kindof constitutional or quasi-constitutional“provisional” government that owed itspower to elections, however imperfect. Itwould of course be best if the main forces ofthe National Assembly would be able to pro-duce a negotiated compromise not onlyaround amending the TAL but also in draft-ing and enacting a genuine, new constitu-tional contract that would no longer havethe taint of American imposition.

The various imaginable steps to constitu-tionalism and a provisional governmentunder constitutional restraints remainhighly unlikely. Two much less appealingscenarios are more probable. The first is thatthe power of incumbency will be used by theAllawi government to control elections byintimidation, falsifying results, or mostlikely by creating a unified governmentalslate that, supported by the media and theUnited States, would get the preponderanceof votes.63 The elections and the formationof a new provisional government wouldthen continue the process by which the Gov-erning Council was transmogrified as theAllawi government, and produced a co-opted National Council. Whether a NationalAssembly so elected would enact a new con-stitution or guarantee the survival of theincumbents under a continually renewedinterim constitution would be immaterial:either would be nothing but a paper consti-tution of an oligarchic dictatorship. The sec-ond is the first scenario defeated by themobilized Shiite majority, which would thenprobably bring Moqtada al-Sadr (alreadyone of the most popular politicians in Iraq)and his followers to power rather than theShiite SCIRI or Dawa parties in Allawi’s gov-

ernmental coalition (and may be still partsof his projected list). It is not easy to see sucha force capable of self-limitation unless Sis-tani were to lead it, something that he hasbeen very reluctant to do in spite of hisrepeated disappointment with the moderateShiite politicians.64

i began writing about iraq after an inva-sion I completely opposed, hoping thatthere was a small window of opportunitynevertheless for democratic change. I haveargued here that this opening has becomesmaller and smaller because of the characterof the U.S. imposition and its consequences.And yet the possibility of democratic changemay still exist. We should therefore be on thewatch concerning the Allawi government’slikely efforts to convert a legal position ofdictatorship into political dictatorship. Andwe should try to promote three things: First,the holding of free and broad-based elec-tions in January, which also implies findingserious political “partners” in the Sunniheartland, who cannot emerge if the UnitedStates insists on the purely repressive mili-tary option. After Fallujah, the repression ofthe Sunni should be replaced by a far moredifferentiated policy. Second, the reemer-gence of an independent and unified Shiite


63 This is a possibility to which Sistani has alreadyobjected. See Dexter Filkins, “Top Shiite Cleric Is Saidto Fear Voting in Iraq May Be Delayed,” New York Times,September 23, 2004, p. A1.64 Robin Wright,“Religious Leaders Ahead in Iraq Poll,”Washington Post, October 22, 2004, p. A1. In November2004, Sistani was working on a unified Shiite list, hop-ing to block the formation of a moderate slate aroundSCIRI and Dawa and a radical one around Sadr (joinedby Ahmad Chalabi!). In the proportional system twowould be as good as one, since no votes would bethereby lost, unless Sistani fears that the moderategroup alone might ally itself with Allawi, as it hasbefore. See Edward Wong “Bickering Iraqis Strive toBuild Voting Coalition,” New York Times, November 7,2004, late ed., p. A1.

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movement capable of both defeating elec-toral manipulation, along with a govern-mental slate, and of self-limitation. Thename of this option is, and has always been,Sistani! And, third, once a freely electedNational Assembly meets, the replacementof the TAL, in two steps, one producing aninterim formula for a nondictatorial provi-sional government, with the checks and bal-ances as well as the governmental structurefrom the TAL, and another a historical com-promise over the permanent constitution.

Can a disastrous policy of illegally invad-ing and occupying a distant country withouta legitimate casus belli nevertheless havesome good as its unintended consequence?Yes, but one should not generally count onit. However, in the present case, the onlyremaining justification of the war—theestablishment of a democratic and constitu-

tional regime in Iraq—whether sincere ornot, can be used by the Iraqis against theiroccupiers. Ironically, this justificationbecame increasingly important as theprocess of external, undemocratic, authori-tarian imposition unfolded, creating theperformative contradiction of the Americanoccupation regime. It is this contradictionthat the Ayatollah Sistani has tried to exploitever since his first fatwa calling for free elec-tions, and even the interim constitution tar-geting electoral legitimacy is its product. Acritique of the interim imposition that takesthis document seriously, and calls for amuch better process to arise from its inter-nal tensions, makes political sense, becauseof this contradiction whose source lies deepin American history. We are likely toencounter it again, in new forms, until it isresolved, one way or the other.

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Interim Imposition

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Transcript of Interim Imposition