Arato - Constitution Making Under Occupation

Constitution Making Under Occupation

COLUMBIA STUDIES IN POLITICAL THOUGHT / POLITICAL HISTORY

Columbia Studies in Political Thought / Political History

Dick Howard, General Editor

Columbia Studies in Political Thought / Political History is a series dedicated to exploring the possibilities for democratic initiative and the revitalization of politics in the wake of the exhaustion of twentieth-century ideological isms. By taking a historical approach to the politics of ideas about power, governance, and the just society, this series seeks to foster and illuminate new political spaces for human action and choice.

Pierre Rosanvallon, Democracy Past and Future, edited by Samuel Moyn (2006)

Claude Lefort, Complications: Communism and the Dilemmas of Democracy, translated by Julian Bourg (2007)

Benjamin R. Barber, The Truth of Power: Intellectual Affairs in the Clinton White House (2008)

Constitution Making Under Occupation

The Politics of Imposed Revolution in Iraq

ANDREW ARATO

Columbia University Press New York

Columbia University Press

Publishers Since 1893

New York Chichester, West Sussex

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Copyright 2009 Columbia University Press

All rights reserved

E-ISBN 978-0-231-51243-5

Library of Congress Cataloging-in-Publication Data Arato, Andrew.

The imposed revolution and its constitution : Iraqi constitutional politics during the American occupation / Andrew Arato.

p. cm.(Columbia studies in political thought / political history)

Includes bibliographical references and index.

ISBN 978-0-231-14302-8 (cloth : alk. paper)

ISBN 978-0-231-51243-5 (e-book)

1. Constitutional lawIraq. 2. Constitutional historyIraq.

3. IraqPolitics and government.2003 4. Sistani, Ali al-Husayni.

5. Bremer, L. Paul 6. Postwar reconstructionIraq. I. Title.

KMJ2220.A97 2009

342.567dc22

2008030562

A Columbia University Press E-book.

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Contents

This book is part of a rescue operation: an attempt to redeem the still redeemable. The treasure it seeks to save lies not in the eighteenth century, or even in 1956, but in the recent history of democratic transformation. This treasure is about to be buriedwho knows for how longbecause of the perverse but revolutionary attempt of the Bush government to impose political democracy through military force and to use democratization as the ideological arm of a neoimperial project to establish a new type of control over the Islamic Middle East. That project is collapsing, but it threatens to bury worldwide projects for democracy and democratization under its rubble.

My concern here is for a dramatic new method of democratic constitution making, one that I call postsovereign, in the sense that first, the constituent power is not embodied in a single organ or instance with the plenitude of power, and second, that all organs participating in constitutional politics are brought under legal rules. This method, whose roots go back to the American Revolution and some experiments in more recent French history (19451946), was revived in Spain in the 1970s, practiced in central Europe during the years of regime change (19891990), and perfected in the Republic of South Africa in the 1990s. It is still practiced in Nepal in the present decade, but with few outside that country noticing. Its key characteristics are a two-stage process of constitution making (with free elections in between) and an interim constitution. The basic idea involves applying constitutionalism to both the result and the democratic process of constitution making. This method is the democratic alternative to revolutionary constitution making, which all too easily can step over the threshold to dictatorship. This method of constitution making was the one reluctantly adopted in Iraq by the countrys American rulers, and unfortunately the idea could very well be entirely compromised by that adoption. Already in Latin America, in the Andean republics, the alternative of revolutionary-populist sovereign constitution making has reappeared, and after Iraq it will offer itself, despite its already authoritarian processes and predictably authoritarian outcomes, as the better, more radical, and indeed more democratic alternative. People may very well forget the South African example, instead remembering Iraq when interim constitutions and bound constitutional assemblies are raised as political and legal options.

Of course, perhaps the constitution-making process will be entirely disregarded in the case of Iraq, since matters such as state destruction, insurrection, and civil war currently and rightly occupy everyones attention. Were Iraq an isolated, unique case that could never happen again, this might be possible. There is indeed little attention paid to Iraq in, for instance, Nepal, where the democratic transformation is indigenous (although some lessons could have been learned even here: for example, the desirability of avoiding co-opted transitional legislatures and the need to be extremely cautious with identity politics based on ethnicity). But the role of the United States in Iraq and the disasters it has caused make it unlikely that any aspect of this sad history will be forgotten. Remembered, it will likely be only as a series of cautionary tales, and the constitutional aspect will be one of these tales.

There have been recent democratic interventions and occupations along with an external role in constitution making before Iraq, in Bosnia, Cambodia, East Timor, and Afghanistan. None of the results have been very good, and the populist theories of participation that guided the international community that advised the constitution makers in these cases were also not very helpful. They opened the door almost without exception to executive dominance of the process. Yet most likely all of them will be remembered as preferable to what will be seen as the American approach typified by Iraq.

In my view, strangely enough, the method adopted in Iraq, born not of an American plan but of the conflict between the occupiers and the movement led by the Grand Ayatollah Sistani (if we forget the pathological aspects due to the persistence of imposition and exclusion throughout) was quite superior to what was implemented elsewhere during other occupations, including that of Japan (if not Germany). Yet because of what has happened in Iraq, future international efforts during military occupations are likely to avoid the specific instruments and policies used in that country. The story of Iraqi constitution making will not be forgotten, but it will be relegated to a dark chapter in the collective memory. At a time when there is a dramatic need to rethink the legal problems of when and how international interventions are permissibleand what to do during occupations after such interventionsforgetting or excluding some of the most important options available in constitution making is bound to have very negative consequences.

This book will focus primarily on constitution making in Iraq, in the context of both theoretical and comparative research. The theoretical focus of will be the problem of the state, distinguishing between revolution and liberation and between revolution and state destruction. Here I will compare Iraq to other efforts by the United States to impose constitutional revolutions from the outside, especially in Japan and Germany. The second chapter will focus on versions of what I see as the dominant contemporary paradigm of constitution making, and I consider from a theoretical point of view the special problems of the adoption of this method in Iraq. The third chapter, centered on Iraq entirely, discusses the political conditions of adopting this model. The penultimate and final chapters reconstruct in detail the making of the interim and permanent constitutions, respectively.