more wheels came off the iraqi constitutional wagon today. so many have fallen off lately, it's getting hard to keep track. here's my best shot:
background: the Law of Administration for the State of Iraq for the Transitional Period (also referred to as the iraqi interim constitution) required the iraqi national assembly to complete and vote on a draft constitution no later than august 15th. the interim constitution permitted the assembly to get an extension on the august 15th deadline, but only if it voted on the extension by august 1, 2005. (interim constitution, article 61(F) and (G)). after a draft constitution were negotiated, the assembly would vote on it, and if it passed, it would go to a national referendum in october.
-as august 1st approached, the bush administration leaned on iraqi negotiators to get them not to request an extension. the idea was to force the parties to take the august 15th deadline seriously. but it was risky because if they failed, the iraqi government would dissolve and an election would be held to elect a brand new assembly--essentially a rerun of the january 30th election. the new government would then start constitutional negotiations from scratch--setting back the process by about a year. the u.s. decided to take the risk and august 1st passed without any extension. noah feldman, former advisor to the coalition provisional authority and one of the people who wrote the interim constitution, later called the bush administration's decision "constitutional malpractice".
-the august 15th deadline came and the parties were unable to reach a deal by midnight. at the last minute, the assembly voted to give itself an extra seven days to negotiate. as noted above, this was illegal. the basic law is quite clear that they could not ask for an extension after august 1st, certainly not at the last minute on august 15th. but they did anyway, voting to extend the deadline to august 22nd.
-on august 22nd, with great fanfair,the shia representatives in the assembly announced they had agreed upon a constitution. but then it came out that the sunnis had not agreed. instead, the constitution was reached by shutting them out of the process, which, quite predictably, pissed the sunnis off.
(a quick aside: the major reason for these negotiations with sunni representatives was to give sunnis the feeling that they were part of the process and had a stake in the new iraq, thus undermining the mostly sunni insurgency. sidelining the sunnis to get a constitution undermines one of the main purposes of this whole process and thus is really really stupid)
-but then it turned out that the assembly didn't vote on a constitution by the august 22nd deadline as they had implied with their initial announcement. instead, they effectively gave themselves another illegal extension, this one for three days. and unlike the original 7 day extension, this new one was not even voted on by the assembly. the speaker simply said he wouldn't schedule a vote for another three days. so this extension was arguably doubly illegal. juan cole referred to the move as a "coup."
-which brings us to today. today is the deadline for that second three day extension. today the assembly would finally vote on the draft constitution which would trigger a national referendum on the document in october. but that's not what happened. instead, the assembly shed any illusion that they were trying to follow the interim constitution at all and announced that they were not going to discuss (much less vote on) a draft constitution today. they didn't even set a new deadline. they just said they're not going to do it.
so what happens now? i have no idea. they have tossed out the interim constitution and are making up the rules as they go along. technically what the assembly should do is announce that they can't agree on a constitution, schedule new national elections and dissolve themselves. that's what they were supposed to do 10 days ago when they failed to agree on august 15th. they didn't do it then, and it looks like they won't do it now.
why does the process matter? it matters because it undermines the rule of law in iraq. if the express terms of the interim constitution can be disregarded to casually, who is to say that the final constitution will be worth the paper it is printed on? (assuming, of course, there ever is a constitution to make it to print). why should any rules be followed?
another reason: if a final constitution is ever developed, the shenanigans of the last ten days will forever leave a question as to that final constitution's legitimacy. the interim constitution, for all it's faults, at least put a veneer of legitimacy on the otherwise nasty business of an occupying power imposing its system of government on another people. by setting up a neutral system where the u.s. had no direct role (at least not a public one), the interim constitution made an opening for the iraqi people to call the constitution its own. with the process described in the interim constitution in tatters, in part because of the u.s.' own pressures on the members of the assembly, the u.s. doesn't have a process to hide behind anymore. instead you're left with either the u.s. dictating a new constitution, or a bunch of iraqi politicians putting one together only after exceeding their powers and acting outside their mandate. either way, it's not all that pretty.
and there's the matter of what will happen in october. the u.s. is planning for a referendum on the as-yet non-existent constitution. the pentagon has announced that it is increasing the number of troops in iraq to provide security for the vote. which means that there probably will be some kind of vote then. the u.s. will not allow a new strain on our already strained troops for no good reason. but what will they be voting on? will there ever be a legitimate constitution in iraq? i don't know.
UPDATE: it looks like the assembly might vote on a draft constitution tomorrow. or maybe this evening. it's pretty confusing what exactly will happen. it also looks like some of the sunnis plan to challenge the constitution arguing that the august 22nd extension was illegal.
UPDATE 2: so now it looks like the assembly won't vote on the draft constitution, but will pretend that it did. on the other hand, maybe it's a better thing if this circus never ends because the at least some are calling the draft constitution "a time bomb that will explode as soon as it's enacted", "not a workable document," and that it will lead the iraqi people "us into a dark society controlled by extremists." peter galbraith, former u.s. ambassador, predicted that the constitution "opens the door to a whole range of abuses" and noted that the u.s. was helping to create "a pro-Iranian state" in iraq. and that's coming from the same guy who david brooks cites as a supporter of the draft constitution. better luck next time, dave!
