1 Cited in Shoichi, Koseki, The Birth of Japan's Postwar Constitution, trans. Moore, Ray A. (Boulder, Colo.: West-view Press, 1997), p. 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!
3 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 Brown, Nathan J., 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.
4 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. Merkl, Peter, The Origin of the West German Republic (New York: Oxford University Press, 1963), pp. 52–54.
5 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.
6 It was formulated this way in the early writings of Sieyès and developed with some inconsistencies through the first two French constitutional assemblies of 1789–91 and 1792–95, and most clearly that of 1848.
7 Schmitt, Carl, Die Diktatur (Berlin,: Duncker and Humblot, 1922); and Schmitt, Carl, Verfassungslehre (Berlin: Duncker and Humblot, 1928), p. 59.
8 See Liberation Government, “Ordonnance no 45–1836 du 17 août 1945”; available at mjp.univ-perp.fr/ france/co1944–5.htm; and Provisional Government of the Republic, “Loi constitutionnelle du 2 novembre 1945”; available at http://mjp.univ-perp.fr/france/co1945.htm.
9 Chosen on the same ballot as the referendum, in the case of a negative answer to the first question of the referendum the assembly would have been an ordinary legislative body under the Third Republic.
10 It is demonstrable that Charles de Gaulle deliberately fought for limits to the provisional government. The outcome was a briet 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 Troper, Michael, Hamon, Francis, and Burdeau, Georges, Droit Constitutionnel 25th ed. (Paris: LGDJ, 1997), p. 368–74; Duhamel, Olivier, Droit Constitutionnel, vol. 2 (Paris: Seuil, 2000), p. 140–41; Godechot, Jacques, ed., Les Constitutions de la France depuis 1789 (Paris: Flamma-rion, 1995),esp. quoting de Gaulle's press conference with its three options, pp. 358–59; and Beaud, Olivier, La puissance de et al (Paris: PUF, 1994), pp. 272–76.
11 Legal continuity did not exist in the case of France because the overthrow of the Vichy government was “revolutionary” in the legal sense, and even the return to the Third Republic (in the case of a “no” vote on the first referendum question) would have implied a revolutionary restoration.
12 Neither is imperative: democratically inclined incumbents, as in Spain, can enact fully competitive interim rules; informal agreements may substitute for roundtables, as in Slovenia; and internal as well as external pressure can be used to enforce legislation allowing democratic elections, as in the German Democratic Republic, where the roundtable designed a permanent constitution that was never enacted.
13 Beaud, , La puissance de et al. , p. 275.
14 For discussion, see Arato, Andrew, “Forms of Constitution Making and Theories of Democracy,” in Civil Society, Constitution, and Legitimacy (Lanham, Md.: Rowman & Littlefield, 2000), p. 229–56.
15 Elster, Jon, “Constitutional Bootstrapping in Philadelphia and Paris,” in Rosenfeld, Michael, ed., Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Durham,, N.C.: Duke University Press, 1994), 1002; and Elster, Jon, “Arguing and Bargaining in the Federal Convention and the Assemblée Constitu-ante,” in Malnes, Raino and Underdal, Arild, eds. Rationality and Institutions (Oslo: Universitetsforlaget, 1992).
16 In contrast to Elster, who was examining single-stage processes when coining the distinction, I treat electoral legitimacy at the beginning of the second stage as “midstream,” while for him this would be “upstream” with respect to the central process. In countries of interim constitution, at least recently, the forging of that constitution represents the beginning of the stream. Like Elster, I leave downstream legitimacy to final enactment and/or ratification processes, but I do not deal with it here since it is irrelevant to interim constitutions in general.
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. 167–98.
19 If these arrangements are to work, they cannot be exposed to a generally flexible amendment rule. “Sunset” provisions are able to limit the longevity of mutual guarantees that are desirable only in the initial phase of the transition. During the operation of the interim constitution, actors in a divided society can learn to interact politically and to seek guarantees that are more compatible with majority rule and the freedom of the constitutional legislature—as in South Africa, where constitutionalism replaced consociationalism.
20 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.)
21 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; and 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 Kis, Janos, “Between Reform and Revolution,” Constellations 1, no. 3 (1995), pp. 399–422; and Arato, Andrew, “The Occupation of Iraq and the Difficult Transition from Dictatorship,” Constellations 10, no. 3 (2003), pp. 408–24.
23 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; and “Constitution-making in Iraq,”Dissent (Spring 2004); available at http://www.dissentmagazine.org/menutest/archives/2004/sp04/arato.htm.
24 Ali al-Husaini al-Sistani, June 25,2003; translation by Juan Cole in Informed Comment, http://www.juancole.com/2003_07_oi_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; Steven Weisman, “Powell Gives Iraq 6 Months to Write New Constitution,”New York Times, September 26, 2003, p. A1; and Patrick E. Tyler, “Iraqi Groups Badly Divided Over How to Draft a Charter,”New York Times, September 30,2003, p. A14.
25 Arendt, Hannah, On Revolution (London,: Faber and Faber, 1963).
26 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 http://www.guardian.co.uk/Iraq/Story/0,2763,1171880,00.html.
27 Shoichi, , The Birth of Japan's Postwar Constitution, pp. 90ff.
28 The Avalon Project at School, Yale Law, Laws of War: Laws and Customs of War on Land (Hague II), July 29,1899 (Washington, D.C.: Government Printing Office, 1968).
29 See Chesterman, Simon, “Occupation as Liberation: International Humanitarian Law and Regime Change,” pp. 51–64, this journal.
30 ICISS, The Responsibility to Protect (Ottawa,: IDRC, 2001), p. 25.
31 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.
32 See Benomar, Jamal, “Constitution-Making after Conflict: Lessons for Iraq,” Journal of Democracy 15, no. 2 (2004), pp. 81–95.
33 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.“
34 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, http://www.juancole.com, June 9, 2004; and 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.
35 Sistani never bought the argument that elections were not possible before setting up the first legal provisional government. There is a lot of documentation that the Iraqi census experts agreed with him last winter, and the idea of using ration cards for registration was floated already then.
36 See Kelsen, Hans, General Theory of Law and State, trans. Anders Wedburg (Cambridge: Harvard University Press, 1945).
37 There are also reports that the Kurdish members—unopposed by the CPA—threatened to withdraw from the whole process. It is very likely that both threats were bluffs, because President Bush had the American electorate, and the Kurds, Turkey, to worry about, if they carried them out. But even the Shia members had a lot at stake in the continued relevance of the Governing Council, and possibly in the governmental formula they expected to emerge if the interim constitution was signed.
38 See Chesterman, “Occupation as Liberation.”
39 Note, however, that this language does not decide how the “constitutional conference” would be selected, and hence does not exclude an elected body. It speaks only of “drafting” and not of “promulgating” or “enacting” without, e.g., popular ratification. As far as the preparation of the constitutional conference was concerned, the resolution called for “national dialogue and consensus building,” something that did not happen during the secretive drafting of the interim constitution.
40 Weber, Max, Economy and Society: An Outline of Interpretive Sociology (Berkeley,: University of California Press, 1978).
41 See Otake, Hideo, “Two Contrasting Constitutions in the Postwar World: The Making of the Japanese and West German Constitutions,” in Higuchi, Yoichi, 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.
43 I leave aside the co-opted National Conference of July and the scandalous single-slate election organized within that body for a consultative National Council. See note 57 below.
44 The UN's mistake lay not in choosing a proportional representation system, which is most suitable for constitutional assemblies, but rather in its choice of one national list instead of provincial ones. The latter would have provided for adequate Sunni representation even with a low turnout.
45 Luhmann, Niklas, in A Sociological Theory of Law (London,: Routledge and Kegan Paul, 1985), wrote of normative learning “not to learn.” This dimension is especially important for constitutions if one is to have the two-track structure of constitutionalism rightly stressed in Ackerman, Bruce, 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. See Arato, Andrew, “Constitutional Learning,” in Civil Tdrsadalom, Forradalom es Alkot-mány (Budapest: Mandatum Press, 2000); with a new and expanded version forthcoming in Theoria, where I draw on the competing perspectives of Stephen Holmes and Bruce Ackerman.
46 In the case of ordinary laws, unanimity of the council is required for a veto (Articles 36 and 37).
47 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 Hart, H. L. A., “Self-referring Laws?” in Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983), as well as Suber, Peter, The Paradox of Self-Amendment (New York: Peter Lang, 1990).
48 I am inferring a simple majority, since nothing else is stated. The National Assembly is free to draw up its own internal procedures (Article 32A), which would have to deal with this question. If the draft constitution is interpreted as a bill, the Presidency Council would arguably have veto power over the draft before it is submitted to the people, which could mean either veto by only one, or, more likely, by all three members (Articles 36C and 37). But the constitution could be interpreted as a special law, wherein the final act of enactment referenda replace the executive that is not mentioned in this context by the very poorly drafted text.
49 Strictly speaking from the legal point of view, an una-mendable constitution can only be replaced as a whole, though politically speaking, partial illegality regarding its application (through creative interpretation, disregard of the amendment rule, etc.) is also possible. In either case the transitional legal order that interim constitutions are meant to establish and protect would be severely endangered.
51 Jon Elster, “Arguing and Bargaining in Two Constituent Assemblies,” The Storrs Lectures at Yale Law School, 1991.
52 “[Brahimi speaking] I welcome the clarification… by Ambassador Bremer, who… stressed that ‘the Interim Government will not have the power to do anything which cannot be undone by the elected government which takes power early next year.’ The fact is that the TAL is exactly what it says it is, i.e., a transitional administrative law for the transition period. It is not a permanent Constitution. Indeed, it is not a constitution at all. The Transitional Law (or any other law adopted in the present circumstances) cannot tie the hands of the National Assembly which will be elected in January 2005 and which will have the sovereign responsibility of freely drafting Iraq's permanent constitution.”“Statement of the Special Adviser to the Secretary-General, Lakhdar Brahimi,” Security Council 4952nd Meeting, April 27, 2004; available at http://www.un.org/apps/news/infocusnewsiraql.asp?NewsID=730=1. I cannot tell if Brahimi deliberately or inadvertently confuses “interim government” in Bremer's formulation with “Transitional Administrative Law” in his own. The two are not the same as to their ability to bind. An interim executive obviously cannot bind a constitutional assembly. An interim constitution, as in South Africa, can, at least in principle—and the TAL definitely tries to regulate the constitution-making process under the National Assembly.
54 “Iraq's 1st Steps Toward Democracy Stumble. Shiites Say Delegate Lists Were Rigged,”Agence France Presse, July 28, 2004; Betsy Pisik, “Power Struggles Crippling Iraqi Democratic Convention,”Straits Times, July 28, 2004; and “Iraq Selects Interim Watchdog Council,”Associated Press, August 18,2004.
55 See Beaud, La puissance de etat, who credits the term to Maurice Duverger's 1945 article “Legitimitée des governments de fait.”
56 Kelsen, General Theory of Law and State.
57 See Robin Wright, “U.S. Immunity in Iraq Will Go
58 I do not mean this in a pejorative sense; all provisional governments unlimited by laws are dictatorships, which I define as republican forms involving the unification of powers and the primacy of executive will over rules.
59 TAL, art. 44; Annex, sec. 2 combines weaker dimensions of both Marshall and Kelsen types of courts. Like a Kelsen-type European court, the Iraqi court is separated from the system of courts that could give it the power of the whole judicial system and confirm its decisions on several levels; but, at the same time, standing for political actors that could allow the Supreme Court to intervene relatively early, even before a law takes effect, is also missing.
60 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.
61 The first article of the Loi constitutionnelle de 2 novembre (preconstitution) provides for the possibility of censure, vote of no-confidence, and the removal of the head of the executive.
62 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.
63 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.
64 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. See Edward Wong “Bickering Iraqis Strive to Build Voting Coalition,” New York Times, November 7, 2004, late ed., p. A1.