Guest Editorial Amendment And Empire

Guest Editorial: Amendment and Empire

Andrew Arato

Amendment and Empire

‘ Constitutional amendment rules are beautiful things. They signify the sovereign right of a political community and its legitimate representatives to fashion and revise their political rules and institutions. Both Jefferson and Madison, though at odds concerning the nature and frequency of desirable constitutional amendments, agreed on this point. Empire, in the modern world, is ugly, precisely because it means the confiscation of state and perforce popular sovereignty. On Sunday, August 14, 15 minutes to midnight, the amendment rule of the TAL, the Transitional Administrative Law was used, in the presence of the American Ambassador, resisting to the end, to strike a blow against empire and imperial imposition.

According to its first project (“Fundamental Law”), introduced on November 15, 2003 in the so-called agreement of the Coalition Provisional Authority and the Iraqi Interim Governing Council, the interim constitution was not supposed to have an amendment rule at all. The whole process was legally speaking imposed by the American occupiers, and they apparently wanted to make sure that their imposition was not going to be tampered with after the supposed “transfer” of “sovereignty”. In the subsequent process, which had an element of negotiations built into it, however distorted by the exclusion of legitimate Sunni partners, the TAL was in any case given an amendment rule. What it provided for however was almost like an unchangeable constitution though, because of the powerful built in vetoes meant to protect above all the beneficiaries of an American-Kurdish side agreement on the structure of the state. It was to take ¾ of all the votes in the National (Constitutional) Assembly elected in January, and the agreement of all three members of the presidential council (probably: one Shi’a, one Kurd, and one Sunni) to amend the TAL. In fact even this rule was not supposed to be used to change certain things, like the over-all time frame of the transition, the fundamental rights and the rights of governorates.

Enter or re-enter empire. The results of the early processes of Sunni exclusion were disastrous, also for the United States. The insurrection was followed by the electoral boycott, which meant an even more radical Sunni exclusion from the National Assembly, which fuelled, in turn the insurrection. The United States shifted gears. From an advocate of Sunni exclusion (de-baathification, destruction of the army, construction of the GC from exile groups mainly, blacklisting Arab nationalist parties etc.) it became a significant force for Sunni inclusion, probably against the impulses of many of the other actors. So far so good, because the result of the earlier imposition had to be somehow balanced by the only possible actor that had sufficient influence on the earlier beneficiaries. The Constitutional Committee of the National Assembly was expanded in a very intelligent way; finally capable and probably (I really hope!) influential Sunni politicians appeared on the scene, interesting debates occurred along different conflict lines.

Still good, though of course imposition is hard to justify unless it is fully self-vitiating. Which it never is. The U.S. government in a true imperial over-reach began setting time- tables, insisting on when the process had to be completed, that the provision of the TAL for a six-month extension, possible till August 1, was off limits. After that date was missed, they spread the quite mistaken (because the total time frame need not be affected) interpretation, that TAL could not be amended on this point at least (Why not? The texts with the dates TAL Art. 61A , and 61F were not enshrined in any way! Thus the ban against extension applied only under the TAL as it was, not as amended). So when the political principals began to meet in something like a genuine round table negotiations format, after that big sandstorm, on the 8th of August, they had a few days to negotiate all the contentious issues, six days exactly if they were to leave zero time for a debate in the constitutional assembly!!!! And yet Ambassador Khalilzad, like the actual ruler of a neo-colonial dependency insisted that they had to do this anyway, within the deadlines. He continued to insist even after Mr. Hakim of SCIRI threw in a major monkey wrench, probably with some Iranian support, with his demand of the 9 province Shi’a mega state with half the people, all the ports, who knows how much of the oil. Now the negotiators needed even more time, but they were supposed to have less.

Even worse, Khalilzad personally and in a highly publicized way attended meetings of the round table, distributed a constitutional draft or something like it, probably twisted arms, cajoled, threatened and who knows what else. He, or any other Federal official could not have even attempted something like this at a constitutional convention of New York state or Texas, and I would bet Puerto Rico or Guam. But he did it in Iraq, without the U.S. press saying one negative word about the matter in the country of Jefferson and Madison- but admittedly also Mac Arthur whose team by the way kept the constitutional imposition in Japan entirely secret!

Well here is a negative word, that the NY Times would never print. But I want to be fair. Khalilzad is the first intelligent American pro-consul in Iraq. He has pushed for many right things (for whatever reason): womens’ rights, Sunni inclusion (he seems to be the main force behind this still), the integrity of Iraq. Amazingly enough given what I think about this war and occupation, I have no disagreement with him on the substance, except perhaps his idea of a delay on the main issue of constituting new regions that later on could be redeemed by simple majority rather than more consensual 2/3 majority votes (I made an error on this in my last editorial, not having the text). But I cannot understand why he does not understand that his procedural role suggests imperial imposition once again, which could be easily used to delegitimate the final product of the efforts, his own, but much more importantly the actually autonomous work of the participants themselves. Because I do not for the moment think that the formulas Khalilzad advocates have a chance merely because he is advocating them, or imposing them for which he does not have the power anymore, but because given the political constellation, the relevant splits, the need for consensus, the only deal possible is more or less around what 1. moderates on all sides can live with and 2. what the Sunni delegates can take home, and use as the bases of a plausible alternative to the insurrection, with sufficient popular and tribal and mosque support behind it. And that is the deal more or less which Khalilzad too is advocating. Let us hope that he has not compromised it too much.

A ray of hope, against imperial appearances, lies in the use of the amendment rule that was never meant to be used. Using the TAL Article 3A to extend the process by a week, in spite of the apparently raging resistance of the U.S. Ambassador who stormed out of a meeting when he heard of the decision, was a small declaration of independence on the part of the Iraqis. This too went unreported by the U.S. press, that focused on the new spin from Crawford, Texas: praise for the Iraqis for using the democratic process so well. For once, Bush (whose last Iran speech almost shipwrecked the whole process!) was right and Khalilzad was wrong. But of course neither gets it. No major Arab country today will submit to imperial rule, its reality or even its appearance. That is what President Chirac tried to explain to the U.S. President, but in vain. The Iraqis moreover understand the stakes, the rules, the process, and they probably hate both the reality of a low scale civil war as well as the prospects of a full blown one. Now that they are in a genuine negotiation process let them finish the job, at their own pace with their own result. Things will be difficult enough afterwards, even without the appearance of yet another imperial imposition. ‘

Andrew Arato