Juan Cole, a usu­ally smart guy, gets some things wrong in this post on the Iraqi Con­sti­tu­tion. He claims that chang­ing the Aug. 15 dead­line is uncon­sti­tu­tional and he pre-emptively argued that last night’s delay approved by the Iraqi National Assem­bly is against the law. He says:

61 (G) If the National Assem­bly does not com­plete writ­ing the draft per­ma­nent con­sti­tu­tion by 15 August 2005 and does not request exten­sion of the dead­line in Arti­cle 61(F) above, the pro­vi­sions of Arti­cle 61(E), above, shall be applied.

So what does 61 (E) say?

If the ref­er­en­dum rejects the draft per­ma­nent con­sti­tu­tion, the National Assem­bly shall be dis­solved. Elec­tions for a new National Assem­bly shall be held no later than 15 Decem­ber 2005. The new National Assem­bly and new Iraqi Tran­si­tional Gov­ern­ment shall then assume office no later than 31 Decem­ber 2005, and shall con­tinue to oper­ate under this Law, except that the final dead­lines for prepar­ing a new draft may be changed to make it pos­si­ble to draft a per­ma­nent con­sti­tu­tion within a period not to exceed one year. The new National Assem­bly shall be entrusted with writ­ing another draft per­ma­nent constitution.

The lan­guage about chang­ing the final dead­line refers to the period after new elec­tions, not before.
Thus, accord­ing to the exist­ing interim con­sti­tu­tion, the plan of extend­ing the dead­line at this late date is clearly uncon­sti­tu­tional, and par­lia­ment should instead be dis­solved and new elec­tions held. (They have to be held no later than Decem­ber, but could be held, e.g., in Sep­tem­ber or Octo­ber in principle).

Well, not so fast, Pro­fes­sor. Arti­cle 3, Sec­tion A says:

This Law is the Supreme Law of the land and shall be bind­ing in all parts of Iraq with­out excep­tion. No amend­ment to this Law may be made except by a three-fourths major­ity of the mem­bers of the National Assem­bly and the unan­i­mous approval of the Pres­i­dency Coun­cil. Like­wise, no amend­ment may be made that could abridge in any way the rights of the Iraqi peo­ple cited in Chap­ter Two; extend the tran­si­tional period beyond the time­frame cited in this Law; delay the hold­ing of elec­tions to a new assem­bly; reduce the pow­ers of the regions or gov­er­norates; or affect Islam, or any other reli­gions or sects and their rites

Last night’s amend­ment con­tra­dicted none of the bold face in the pre­vi­ous sec­tion. Last night’s vote was unan­i­mous, near as I could tell from watch­ing the video. It doesn’t extend the tran­si­tional period beyond the legal time­frame — indeed, Arti­cle 3, Sec­tion C says, “This Law shall cease to have effect upon the for­ma­tion of an elected gov­ern­ment pur­suant to a per­ma­nent con­sti­tu­tion.” And, finally, it doesn’t delay the hold­ing of elec­tions to a new assem­bly, which are still set for Dec. 15.
Now, one might ask the ques­tion why the Amer­i­cans, who by and large wrote the TAL, inserted “hard” dead­lines in Arti­cle 61 that could be changed with lit­tle effort in Arti­cle 3, but there’s lit­tle ques­tion that’s exactly what they did. And the Iraqis took advan­tage of this.

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