Sadly, no, Prof. Cole…
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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