By Yousef K.B.,
This post will show two things: 1) the heavy handed intervention of the U.S. in the process of drafting the permanent Iraqi constitution and 2) the permanent Iraqi constitution is illegal based on its own legal foundations, namely the Transitional Administrative Law (TAL). There are two ways that can be used to provide evidence for U.S. intervention in drafting the permanent Iraqi constitution. One is to show how the permanent constitution that was being written by Iraqis changed over time to resemble more and more the constitution that was written by the U.S., the TAL. This is a longer study that I will try to post at a later time. The other way this intervention can be shown and what I do in this post is to show the pressure put forth by the Americans as well as by direct personal interference such as by the American Ambassador at the time, Zalmay Khalilzad.
There are two constitutions that were written and implemented after the invasion of Iraq. The first is the CPA’s “Law of Administration for the state of Iraq for the transitional period” (TAL) passed in March 8th of 2004 setting the legal groundwork for the “transitional period” which was defined as the “period beginning on 30 June 2004 and lasting until the formation of an elected Iraqi government pursuant to a permanent constitution … no later than 31 December 2005” (TAL, Article 2 Sec. A). The second is the permanent constitution that was voted in by a referendum on October 15th of 2005.
Article 61 of the TAL laid out the process and the timeline for developing the permanent Iraqi constitution, which was the main task of the Iraqi transitional government. According to this article the “the National Assembly shall write the draft of the permanent constitution by no later than 15 August 2005” (TAL, Article 6.11). This draft was to be put to a general referendum no later than October 15th of 2005. In the meantime the same article asserts that the “draft constitutions hall be published and widely distributed to encourage a public debate about it among the people.” If the referendum was ratified then elections for the new assembly is to be held no later than 15th of December. However if the referendum was rejected then the National Assembly was to be dissolved and new elections held for a new assembly to develop a new drat constitution by the same date of 15th of December.
Alternately however section F of article 61 of the TAL gives the president of the National Assembly “with the agreement of a majority of the members’ vote” the power to ask the Presidency Council for an extension of no longer than six months, no later than the August 1st of 2005.
U.S. involvement in the constitution writing process, as with the general government existed throughout with a former CIA analyst saying explicitly “as long as U.S. interests are not directly at stake, we’ve allowed Iraqis to run the show and make their own mistakes and be responsible” (Wright 2005a). However the heavy U.S. intervention in the constitution drafting process became more and more visible as the deadline of August 15th approached. On July 31st 2005, a day before the deadline for calling for an extension for the constitutional drafting committee, most of the committee members in addition to senior Iraqi political leadership and civil society organizations favored a call for an extension (Iman 2005). However the U.S. administration was adamant in keeping the deadlines set up by the TAL in its efforts to show progress in Iraq, domestically. As such the U.S. ambassador had multiple meetings with senior Iraqi leadership impressing upon them the need to keep the deadline. As one member of the constitution drafting committee put it “the Americans are the ones who want to have this done quickly” (Dexter Filkins 2005). It was this American pressure that forced the Iraqis to retain the original set of deadlines set out by the TAL. As they reached the next deadline of August 15th, the constitution was still not finished, and the Americans kept pushing the constitution to be finished by the deadline suggesting to postpone agreement on tough issues to later times (Carroll 2005; Wright 2005b). Some Iraqi officials were commenting that for the Americans the deadlines were ‘sacred’ (Glanz 2005). This heavy U.S. insistence on keeping the deadlines and its lobbying against an extension on August 1st, became problematic since the draft was not ratified by the Assembly on August 15th and was followed by decisions that were outside of the article 1 regulations of the TAL.
Sections E and G of article 61 of the TAL state that if the August 15th deadline is missed, the referendum is seen as having failed, the Assembly dissolved, and new elections are to be called. The continuation of debate on the draft constitutions and meetings that were held after August 15th, opened up questions and is an obvious transgression of the procedures set out in TAL. This legal questions, put at risk the validity of the constitution itself, something that has been ignored both by the Iraqi government, the U.S., and the occupation regime in general (Morrow 2005). It is ironic that despite all of the talk by the U.S. of “law and order” and establishing “rule of law” the U.S. itself interfered in the process of developing the highest legal document in the country ignoring the very “laws” it established (TAL).
The immense amount of pressure that was put on the Iraqi drafters by the United States also resulted in an omnipresent American attendance at every negotiating meeting and every important event related to the constitution especially after August 1st of 2005. This is best represented by the constant pictures of U.S. Ambassador Zalmay Khalilzad who was shown every night on Iraqi television sitting next to the Iraqi President Jalal Talabani on the negotiation table. The following excerpt from a report by the U.S. Institute of Peace is enlightening in regards to this intensive push on the part of the US:
“From the time the Leadership Council [this was a group developed outside of the National Assembly made up of senior Iraqi leaders from all sides in order to fast track negotiations] was formed, U.S. Ambassador Zalmay Khalilzad attended meetings regularly, and U.S. Embassy officials were engaged in less-than-subtle efforts to accelerate a final constitution. Several of the early meetings of the Leadership Council took place at the U.S. Embassy. By August 10, the United States was strongly expressing its views on substantive constitutional issues to reach fast compromises that resembled the terms of the TAL… On August 12, in efforts to accelerate the drafting process, the U.S. Embassy circulated its own draft constitution in English” (Morrow 2005).
The U.S. and the occupation regime in Iraq was not only involved in controlling the timeline of the process of drafting the permanent constitution in accordance with its interests in domestic matters, but it also had a heavy influence in the substantive content of the constitution. This influence led to a clear transformation of the constitution through its evolutionary course from one of a welfare state to a neo-liberal one. The evidence for this is not presented in this post, but can be found in the insightful work of Herbert Docena of the Focus on the Global South. What is clear is that the U.S. took the important and critical process of drafting the permanent Iraqi constitution as simply a campaign gimmick, as a PR tactic to show progress in Iraq. It did not allow Iraqis to take time, which they could afford, in developing a meaningful constitution that can act as the legal framework of their own country. The US intervention also was a heavy hand that barred the Iraqis from developing a government based on what they thought was best for them. The US with its Iraqi allies pushed a heavily neo-liberal Iraqi constitution that can shackle the hands of the Iraqi government for years to come, irregardless of U.S. presence in the country. The constitution as such is flawed, any many parts of it in need of reform. In this regard social movements in the future can take solace in the fact that the permanent Iraqi constitution was illegal based on the provisions of the TAL.
- Carroll, Rory, “US steps in to end Iraq deadlock,” Observer, August 14, 2005, <http://www.guardian.co.uk/world/2005/aug/14/usa.iraq> (March 13, 2008).
- Docena, H. 2005. “Iraq’s Neo-liberal Constitution.” Foreign Policy in Focus 2.
- Filkins, Dexter and Joes Brinkley. 2005. “Iraqis Promising a Constitution by the Deadline.” in New York Times. New York.
- Glanz, James, “U.S. Builds Pressure for Iraq Constitution as Deadline Nears,” New York Times, August 14, 2005, <http://www.nytimes.com/2005/08/14/international/middleeast/14iraq.html?sq=iraq%20constitution%20drafting%20&st=nyt&scp=5&pagewanted=all> (March 16, 2008).
- Iman, Mona. 2005. “Draft Constituion Gained, but an Important Opportunity Was Lost.” United States Institute of Peace, Washington D.C.
- Morrow, J. 2005. “Iraq’s Constitutional Process II: An Opportunity Lost.” US Institute of Peace, Washington, DC.
- Wright, Robin, “Iraqi Official Appeals for Greater U.S. Role,” Washington Post, June 3, 2005, <http://www.washingtonpost.com/wp-dyn/content/article/2005/06/02/AR2005060201789.html?nav=rss_world> (Februrary 27, 2008).
- Wright, Robin ; Peter Baker. 2005b. “Despite Setback, Bush Optimistic on Iraqi Charter.” in Washington Post. Washington D.C.