Interim Imposition

Ethics and International Affairs

Volumn 18, Issue 3, 2004, Pages 25-50

  Arato, Andrew ^a  

^a NEW SCHOOL FOR SOCIAL RESEARCH   (United States)

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EID: 27744568688     PISSN: 08926794     EISSN: 17477093     Source Type: Journal    
DOI: 10.1111/j.1747-7093.2004.tb00475.x     Document Type: Article

References (63)

1. Cited in Koseki Shoichi, The Birth of Japan's Postwar Constitution, trans. Ray A. Moore (Boulder, Colo.: West-view Press, 1997), pp. 75–76. Was it already a misrepresentation the moment (January 29, 1946) this was uttered? It is proven by Koseki that three days later, on February 1, Gen. Courtney Whitney was already advising MacArthur to the contrary, and it was this advice that was followed. Yet the statement remains valid for Iraq today!
2. Interim constitutions in the Middle East often signified illegitimate attempts to make supposedly temporary authoritarian and/or paper constitutions permanent or semipermanent. The last glaring example was the Iraqi interim constitution of 1970 that lasted formally, though without much meaning, for thirty-four years, until the American overthrow of Saddam Hussein in 2003. See Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (New York: SUNY Press, 2001), p. 70 (for Syria); p. 79 (for Egypt); and pp. 86–87 (for Iraq).I am grateful to this careful and serious author, on whose work I have relied here.
3. To my knowledge it was Social Democratic lawyers during the earliest phases of German constitution making who first offered the nomenclature of “administrative statute” (instead of constitution) to indicate not only provisionality but also the inadequacy of making a constitution-like set of rules for an occupied, hence nonsovereign (and, in Germany's case, divided), country.At that time the lawyers of the three occupying governments, the United States, France, and Britain, explicitly declared their hostility to such modest language, which would devalue their own achievement, and demanded a constituent assembly producing a constitution, as in France and Italy previously. The compromise formula was the so-called Parliamentary Council drafting a Basic Law. Peter Merkl, The Origin of the West German Republic (New York: Oxford University Press, 1963), pp. 52–54.
4. Shoichi, The Birth of Japan's Postwar Constitution, pp. 33, 64, and 70, mentions the proposal for a two-stage process of constitution making in Japan that involves a provisional basic law two years before the issue came up in Germany.
5. Carl Schmitt, Die Diktatur (Berlin: Duncker and Humblot, 1922)
6. Carl Schmitt, Verfassungslehre (Berlin: Duncker and Humblot, 1928), p. 59.
7. See Liberation Government, “Ordonnance no 45–1836 du 17 août 1945”; available at mjp.univ-perp.fr/france/co1944–5.htm
8. Provisional Government of the Republic, “Loi constitutionnelle du 2 novembre 1945”; available at mjp.univ-perp.fr/france/co1945.htm.
9. It is demonstrable that Charles de Gaulle deliberately fought for limits to the provisional government. The outcome was a brief, eight-article interim constitution. It was innovative, because here the interim constitution had been independently authorized by the same source as the new assembly, the popular vote. See Michael Tro-per, Francis Hamon, and Georges Burdeau, Droit Constitutionnel 25th ed. (Paris: LGDJ, 1997), pp. 368–74
10. Olivier Duhamel, Droit Constitutionnel, vol. 2 (Paris: Seuil, 2000), pp. 140–41
11. Jacques Godechot, ed., Les Constitutions de la France depuis 1789 (Paris: Flammarion, 1995), esp. quoting de Gaulle's press conference with its three options, pp. 358–59
12. Olivier Beaud, La puissance de l'état (Paris: PUF, 1994), pp. 272–276.
13. Beaud, La puissance de l'état, p. 275.
14. For discussion, see Andrew Arato, “Forms of Constitution Making and Theories of Democracy,” in Civil Society, Constitution, and Legitimacy (Lanham, Md.: Rowman & Littlefield, 2000), pp. 229–256.
15. Jon Elster, “Constitutional Bootstrapping in Philadelphia and Paris,” in Michael Rosenfeld, ed., Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Durham, N.C.: Duke University Press, 1994), p. 102
16. Jon Elster, “Arguing and Bargaining in the Federal Convention and the Assemblée Constitu-ante,” in Raino Malnes and Arild Underdal, eds., Rationality and Institutions (Oslo: Universitetsforlaget, 1992).
17. See Elster, “Arguing and Bargaining.” I agree that the demand for publicity at all stages would be counterproductive, dangerous, and even impossible, and yet would stress the importance of public discussion at some key junctures.
18. In my view this way of proceeding is actually a first step in building a genuine rule of law. See Arato, “Constitution and Continuity in the East European Transitions,” in Civil Society, Constitution, and Legitimacy, pp. 167–198.
19. Such an amendment process, however, should not detract from the legitimacy of authorizing the interim constitution itself, as happened in Hungary when the old, non-freely elected parliament reneged on some of the roundtable agreements. See Andrew Arato and Zoltan Miklosi, “Constitution-Making in Hungary” (unpublished, 2002; available at the United States Institute of Peace or from the authors.)
20. Indeed, the one great danger of interim constitutions even in nonauthoritarian settings is that they work too well and make themselves permanent not through the free choice of a democratic assembly but by dramatically interfering with that choice. Rien ne dure que le provisoire! (Only the provisional lasts!) it was said soon after the making of the emphatically provisional Grundgesetz that is still, fifty-five years later, Germany's valid constitution. Even when there is no interference with the freedom of a future assembly, as in Hungary, the absence of any provisions (rules, incentives, disincentives) for making the permanent constitution can lead to the interim becoming permanent. See Arato, “Refurbishing the Legitimacy of the New Regime: Constitution-Making Endgame in Hungary and Poland,” in Civil Society, Constitution, and Legitimacy, pp. 199–228
21. Arato and Miklosi,“Constitution-Making in Hungary.” Beyond its own amendment rule and sunset provisions, it is therefore extremely important for the interim constitution to regulate in a plausible way the time frame and the procedures for making the permanent constitution.
22. See Janos Kis, “Between Reform and Revolution,” Constellations 1, no. 3 (1995), pp. 399–422
23. Andrew Arato,“The Occupation of Iraq and the Difficult Transition from Dictatorship,” Constellations 10, no. 3 (2003), pp. 408–424.
24. Nevertheless, I have argued for the potential relevance of this model to Iraq in several articles, most recently in “Sistani v. Bush: Constitutional Politics in Iraq,” Constellations 11, no. 2 (2004), pp. 174–92
25. “Constitution-making in Iraq,” Dissent (Spring 2004); available at www.dissentmagazine.org/menutest/ archives/2004/sp04/arato.htm.
26. Ali al-Husaini al-Sistani, June 25, 2003
27. translation by Juan Cole in Informed Comment, www.juancole.com/ 2003_07_01_juancole_archive.html#105721532519162684. I have slightly altered the terminology, with his agreement. For versions of what was planned, see Noah Feld-man, “Democracy, Closer Every Day,” New York Times, September 24, 2003, p. A27
28. Steven Weisman, “Powell Gives Iraq 6 Months to Write New Constitution,” New York Times, September 26, 2003, p. A1
29. Patrick E. Tyler, “Iraqi Groups Badly Divided Over How to Draft a Charter,” New York Times, September 30, 2003, p. A14.
30. Hannah Arendt, On Revolution (London: Faber and Faber, 1963).
31. This is why electoral legitimacy was so often eschewed even on the local level, even in the south, where there were no security reasons in 2003 against holding elections. See David Leigh,“General Sacked by Bush Says He Wanted Early Elections,” Guardian, March 18, 2004; available at www.guardian.co.uk/Iraq/Story/0,2763,1171880,00.html.
32. Shoichi, The Birth of Japan's Postwar Constitution, pp. 90ff.
33. 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).
34. See Simon Chesterman, “Occupation as Liberation: International Humanitarian Law and Regime Change,” pp. 51–64, this journal.
35. ICISS, The Responsibility to Protect (Ottawa: IDRC, 2001), p. 25.
36. I focus only on the case involving the United States. Already in Japan in 1945 the American occupiers recognized that their self-imposed tasks were not easily consistent with international treaties outlining the goals of foreign occupation. These presupposed either outright annexation or the establishment merely of a sympathetic government to be the only goals of foreign occupation. Nevertheless, it has been documented that in Japan in 1946–47 the Hague Convention played a strong role in the formal passing of the constitutional draft in spite of the fact that the document was originally produced and imposed by MacArthur's Government Section sitting “as a constitutional convention.” See Shoichi, The Birth of Japan's Postwar Constitution, pp. 79, 92–93.
37. See Jamal Benomar, “Constitution-Making after Conflict: Lessons for Iraq,” Journal of Democracy 15, no. 2 (2004), pp. 81–95.
38. For Brahimi's thoughts on the process, see Terence Neilan, “U.N. Envoy Urges Iraqis to Give New Leaders a Chance,” New York Times, June 2, 2004, online ed. “Mr. Brahimi struck a mildly surprising note when, in answer to a reporter's question, he referred to … L. Paul Bremer III, as ‘the dictator of Iraq.’‘He has the money,’ he said.‘He has the signature. Nothing happens without his agreement.’”
39. In a letter to the UN secretary-general he wrote: “It has reached us that some are attempting to insert a mention of what they call ‘The Law for the Administration of the Iraqi State in the Transitional Period’ into the new UN Security Council resolution on Iraq…with the goal of lending it international legitimacy. This ‘Law,’ which was legislated by an unelected council in the shadow of Occupation, and with direct influence from it, binds the national parliament, which it has been decided will be elected at the beginning of the new Christian year for the purpose of passing a permanent constitution for Iraq. This matter contravenes the laws, and most children of the Iraqi people reject it.” See “UN Resolution Passes Unanimously,” Informed Comment, www.juancole.com, June 9, 2004
40. John F. Burns,“Shiite Ayatollah Is Warning U.N. Against Endorsing Charter Sponsored by U.S.,” New York Times, March 23, 2004,p.A8.Sistani had his way, for now… SC Res. 1546 made no reference to the TAL.
41. See Hans Kelsen, General Theory of Law and State, trans. Anders Wedburg (Cambridge: Harvard University Press, 1945).
42. See Chesterman, “Occupation as Liberation.”
43. Max Weber, Economy and Society: An Outline of Interpretive Sociology (Berkeley: University of California Press, 1978).
44. See Hideo Otake,“Two Contrasting Constitutions in the Postwar World: The Making of the Japanese and West German Constitutions,” in Yoichi Higuchi, ed., Five Decades of Constitutionalism in Japanese Society (Tokyo: University of Tokyo Press, 2001), pp. 43–72. And yet, imposition worked in Japan only because MacArthur started out with a fundamental concession to the Japanese ruling elite: the survival of the “symbolic emperor” and the formal continuity of the state and the legal order. In the Iraqi case the American occupation authorities seek to impose a new arrangement without any such fundamental concession to either an electoral (as in Germany) or traditional (as in Japan) principle of legitimacy.
45. Niklas Luhmann, in A Sociological Theory of Law (London: Routledge and Kegan Paul, 1985), wrote of normative learning “not to learn.”
46. This dimension is especially important for constitutions if one is to have the two-track structure of constitutionalism rightly stressed in Bruce Ackerman, We the People (Cambridge: Harvard University Press, 1991). Learning constantly would threaten to dissolve the line between constitutional and normal politics. Nevertheless, under a new constitution there must also be an opportunity to correct 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 12th Amendment of 1804. In this sense, an interim constitution properly constructed extends the two-track structure to constitution making itself by providing for normal rather than extraordinary alteration for a period of time.
47. See Andrew Arato, “Constitutional Learning,” in Civil Társadalom, Forradalom es Alkot-mány (Budapest: Mandátum Press, 2000); with a new and expanded version forthcoming in Theoria, where I draw on the competing perspectives of Stephen Holmes and Bruce Ackerman.
48. Since the makers of the interim constitution neglected the elementary requirement to enshrine the amendment rule if they wished to make anything else unchangeable, everything in the TAL can be changed after free elections legally, using a two-step procedure. The same mistake was made by the authors of Article V of the U.S. Constitution, but then no one knew if self-referring rules were valid or not. See the famous article of H. L. A. Hart,“Self-referring Laws?” in Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983)
49. as well as Peter Suber, The Paradox of Self-Amendment (New York: Peter Lang, 1990).
50. See Spencer Ackerman, “Iraq'd: Panic on the Streets of Kurdistan,” New Republic Online, June 10, 2004; available at www.tnr.com/blog/iraqd?week=2004–06–04.
51. Jon Elster, “Arguing and Bargaining in Two Constituent Assemblies,” The Storrs Lectures at Yale Law School, 1991.
52. The Storrs Lectures at Yale Law School.
53. “Iraq's 1st Steps Toward Democracy Stumble. Shiites Say Delegate Lists Were Rigged,” Agence France Presse, July 28, 2004
54. Betsy Pisik, “Power Struggles Crippling Iraqi Democratic Convention,” Straits Times, July 28, 2004
55. “Iraq Selects Interim Watchdog Council,” Associated Press, August 18, 2004.
56. See Beaud, La puissance de l'état, who credits the term to Maurice Duverger's 1945 article “Légitimité des gou-vernements de fait.”
57. Kelsen, General Theory of Law and State.
58. See Robin Wright, “U.S. Immunity in Iraq Will Go Beyond June 30,” Washington Post, June 24, 2004, p. A1.
59. As this article was being completed, a sixty-day emergency has been declared by Prime Minister Allawi. See “In Wake of Attacks, State of Emergency Declared in Iraq,” Associated Press, November 7, 2004. It is too early too see how the TAL and its rights will be affected. The sixty days take us into the electoral campaign, and the emergency can be renewed.
60. Brown, Constitutions in a Nonconstitutional World, pp. 86–87 (for Iraq). I am grateful to Prof. Brown for calling my attention to Bremer's CPA Order #100 in a personal communication.
61. This is a possibility to which Sistani has already objected. See Dexter Filkins, “Top Shiite Cleric Is Said to Fear Voting in Iraq May Be Delayed,” New York Times, September 23, 2004, p. A1.
62. Robin Wright, “Religious Leaders Ahead in Iraq Poll,” Washington Post, October 22, 2004, p. A1. In November 2004, Sistani was working on a unified Shiite list, hoping to block the formation of a moderate slate around SCIRI and Dawa and a radical one around Sadr (joined by Ahmad Chalabi!). In the proportional system two would be as good as one, since no votes would be thereby lost, unless Sistani fears that the moderate group alone might ally itself with Allawi, as it has before.
63. See Edward Wong “Bickering Iraqis Strive to Build Voting Coalition,” New York Times, November 7, 2004, late ed., p. A1.