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A Multi-Stage Process for Post-War Iraq


Wednesday, Apr. 16, 2003

Much of the discussion about establishing a new political order in post-war Iraq has assumed that the process will proceed in two steps: an interim regime, followed by a permanent one. Debate has centered on the question of who should play the leading role in the interim regime: the United States and Great Britain; the United Nations; or some hybrid group that includes Iraqis.

In fact, however, the reconstruction of Iraq is best viewed as at least a four-step process, not a two-step one. The key phases are: (1) direct military occupation and administration; (2) interim government during military occupation; (3) the drafting and adoption of an interim constitution; and (4) the drafting and adoption of a final constitution.

By seeing the transition to democracy as staged in this way, Iraqis and the world community may be able to avoid some of the pitfalls that would otherwise lie in store for them.

The First Two Phases: Occupation and Interim Government

Even before the fall of Baghdad, the first phase of the transition had begun. Chaos and looting predictably follow the incapacitation of government authority--whether the cause is war or, as American domestic experience confirms, natural disaster or civil unrest. As soon as American and British forces toppled Saddam Hussein's regime in Um Qasr and Basra, the law of war made them responsible for maintaining order and otherwise administering the areas under their control. The same now holds true for just about all of the country.

It behooves the U.S. to move as quickly as possible to some form of Iraqi self-rule. Obviously, American and British forces cannot withdraw immediately. Thus, for some substantial period of time, Iraq will remain formally under military occupation. Still, one hopes that even during this time, Iraqis themselves will play a substantial role in administering the country, and that appears to be happening. For the short term, a sensible division of labor would put Iraqis in charge of such social services as health care, food and water distribution, and education, while assigning the policing function primarily to the occupying military.

Whichever Iraqi groups or individuals are given administrative authority now will have a major advantage, relative to other players, in the creation of a more lasting regime later. Provided they do not fail disastrously, they will be able to use the tools of incumbency to cement their own power.

To minimize the advantages incumbency might otherwise confer on a lucky few, power should be shared as widely as possible consistent with maintaining order. It should also be made clear that current arrangements are temporary, with a goal of rapid movement to phases three and four--interim and permanent constitutionalism.

Creating a Constitution: The South African Model

Are phases three and four really properly separated? Conventional wisdom might say no. It holds that a permanent, constitutionally enshrined regime should take power from the interim regime. Yet recent experience in South Africa suggests a superior alternative: The constitution itself can be created in stages.

After decades of sanctions and international isolation, by the early 1990s, the apartheid government of South Africa was ready to cede power to a government chosen through free elections based on universal suffrage. However, many white South Africans were fearful that the new government might not protect their civil, political and property rights. Given the experience of Zimbabwe, which underwent its own troubled transition from white minority rule, this was no idle worry.

South Africans faced a dilemma. To ensure a peaceful transition, it was necessary to guarantee whites certain rights--including a mechanism for securing amnesty from prosecution for those who confessed their misdeeds. Yet, if the new Constitution guaranteed whites too many rights, it would not truly be able to root out the apartheid regime.

South Africans hit upon an ingenious solution. They negotiated an interim Constitution, which went into effect in 1994. In addition to setting up the government, the interim Constitution set the parameters for both the substance of, and the procedures to establish, a permanent Constitution based on popular consent.

Perhaps most interestingly, the South African Constitutional Court was given the authority to approve or disapprove the final Constitution. In 1996, the Constitutional Court ruled that the first version put forward by the Constitutional Assembly did not fully comply with the requirements set forth in the 1994 Constitution.. The Constitutional Assembly then went back to the drawing board. In 1997, the Constitutional Court approved its output, and South Africa had a valid Constitution.

Although South Africa faces serious social problems--including crime, AIDS and widespread poverty--the Constitution has been widely regarded as successful given the difficult circumstances.

Lessons of the South African Experience That Can Be Applied in Iraq

What can we learn from the South African experience? The main lesson is that constitution writers need not attempt to solve all their problems at once.

New constitutions tend to be written in moments of crisis--when revolution, civil war or other cataclysm brings an end to one political order and the beginning of a new one. At such moments of crisis, farsighted statesmen and stateswomen can emerge to put the nation on a sound long-term footing. But there is no guarantee that this will happen; indeed, the chaotic circumstances of national upheaval might be thought to favor a form of politics that focuses on immediate issues of survival.

A staged process, such as the one South Africa created, and the process composed of the third and fourth phases of the process I have suggested for Iraq, enables the constitution writers to take account of immediate exigencies, without locking compromises into the political order for the long term.

For example, members of the old regime may be needed in the new one because they have experience and expertise that are in short supply. This was the case in South Africa and central and eastern Europe in the 1990s, when members of the former apartheid and Communist regimes, respectively, were often best qualified to administer their countries. The same is true of former Baathists in Iraq today.

A phased constitutional transition will permit Iraq to employ former state employees--such as the police officers now jointly patrolling Baghdad with the U.S. marines--in the short term, while giving less Baath-influenced institutions time to develop.

Phasing in constitutionalism also provides another advantage: where--as is likely to be the case in post-Saddam Iraq--the threat of civil war and territorial disintegration is real, one may be tempted to create a very strong central authority. But once the immediate danger has passed, the nation's long-term security and wellbeing may be better served by a substantial degree of regional autonomy.

The answer may lie in an interim constitution that provides for a high degree of centralization, even as it calls for a permanent constitution that allows greater deference to the Iraqi provinces or other geographical subdivisions.

The Development of an Authentic Iraqi Constitutional Culture

Yet another benefit of a staged process of constitutional creation in Iraq is the possibility that the document that emerges will be an authentic product of Iraqi deliberation.

Granted, there are historical examples of one country successfully imposing a constitution on another. The United States essentially wrote the Japanese Constitution after World War II, and despite its foreign origin, that Constitution has secured the allegiance of the Japanese people. Nevertheless, the Japanese experience will be difficult to duplicate, especially given widespread mistrust of the United States in the Middle East.

And certainly, other things being equal, it is highly preferable for a nation's people themselves to draft the foundational document that will govern them. This, too, is arguably a basic feature of constitutional democracy.

Phasing in constitutionalism will allow the U.S. to substantially reduce its presence in Iraq before the country's permanent constitution is drafted and adopted. This timing is crucial if there is to be public confidence in the document's legitimacy. Even if the process is genuinely inclusive, any Iraqi constitution adopted while substantial numbers of American troops remain in Iraq will be suspect.

By contrast, an inclusive process that produces an interim Constitution over the course of roughly a year could set the stage for a permanent Constitution to be adopted after foreign troops have left (or remain in much smaller numbers).

The interim period would also provide an opportunity for Iraqis to develop their own distinctive form of constitutionalism. They will need to decide whether to choose a purely secular model such as Turkey's (and, ironically, that of the Iraqi Baath Party until recently) or to provide some essential role to Sharia, Muslim law. They will also need to decide whether to adopt a parliamentary, presidential, or hybrid system of government. And they will need to decide whether to authorize judicial review of legislation by a constitutional court or similar institution.

In answering such questions, Iraqis can draw upon a history of civilization under law that goes back at least as far as Hammurabi's Code of nearly four thousand years ago. Of course, Hammurabi's Code itself is not directly relevant; it is essentially a set of criminal laws, and an extremely harsh one at that, prescribing the death penalty for most offenses it defines. By contrast, a constitution sets out the framework for all of government, rather than particular laws.

In any event, my point is that in thinking about their own constitution, Iraqis need not simply ask how to apply the lessons of other countries; they have intellectual resources internal to their own culture upon which to draw.

Re-Thinking The "Miracle of Philadelphia"

Perhaps the greatest gift we Americans can give to Iraqi constitutional democracy is our own negative example. It is worth recalling that the first constitution of the United States was a rather dismal failure. The Articles of Confederation were approved by the Continental Congress in 1777 and went into force in 1781, before the conclusion of the Revolutionary War. Within half a decade, it became apparent that the Articles had created a national government too weak to achieve the tasks assigned it, leading to the Constitutional Convention of 1787.

Even the Constitutional Convention's handiwork lasted a scant two years: Ratification was obtained in 1789 only on the condition that a transformative Bill of Rights be added as soon as Congress convened. The amended Constitution then only survived into the nineteenth century because the manner in which the President and Vice President are chosen was fundamentally altered by the Twelfth Amendment, after the deadlocked election of 1800.

And of course, in a deep sense, the original Constitution plus the first twelve amendments were a failure as well. They failed to resolve the slavery issue, leading to the Civil War.

I recite this American history for two reasons: First, to urge some humility on my fellow Americans. Our own institutions barely worked here; there is no guarantee they will work elsewhere.

Second, our history shows that the great strength of American constitutionalism has been its adaptability--through a combination of the formal amendment process, and judicial acquiescence to popular innovations.

Iraqis too deserve a constitution that changes and adapts to their changing needs and circumstances. They are more likely to get one if they view the adoption of the constitution itself as a process that unfolds over time, rather than as a single act of lawmaking. Consciously staging the process of constitutionalism can facilitate that process.

Michael C. Dorf, a FindLaw columnist, is Professor of Law at Columbia University School of Law.

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