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2.19.2009

The Danger of Constitutional Deadlines

Alex's post on the constitutional crisis in Afghanistan -- specifically the tension between constitutional deadlines and practical reality -- brings to mind similar challenges already encountered by Iraqis as they simultaneously attempt to rebuild a nation, stamp out vestiges of a near civil war, and honor the rule of law.

The first such tension occurred literally with the first constitutional obligation following the 2005 national elections. Art. 54 requires parliament to convene its first session within 15 days of certification of the election results. The results were certified on February 10 but the first session did not take place until March 16. The delay was due to political haggling over who would assume the top governmental posts (Parliament Speaker, President, and PM) -- a critical first step for Iraq's major constituencies to agree on a national unity government. It would be months before this process would be completed (and in the process other constitutional deadlines would be missed), but the end result, however imperfect, was a national unity government that survives to this day and has made momentous progress towards national accommodation.

A second example where practical considerations trumped constitutional obligations concerns the on-going constitutional review. Mandated by Art. 142, this comprehensive review of all constitutional provisions was to commence with the forming of a committee "at the beginning of [the parliament's] work" and result in a report by the committee to the full parliament "within a period not to exceed four months." Contrary to these requirements a committee was not formed until over seven months after parliament's first session and two years later the committee has yet to present a final report to parliament. The reason: there are critical unresolved constitutional issues that go to the heart of Iraq's federal structure, its treatment of vital natural resources, and its internal boundaries (among others) and Iraq's political leadership has deemed it more important to allow the necessary time to work out compromises to these challenges then to abide by an arbitrary and self-defeating brief constitutional time line.

So what is one to take away from Iraq's and Afghanistan's constitutional travails? One lesson might be a caution against constitutional time lines, particularly in transitional or post-conflict countries where practical realities are likely to get in the way. A second lesson could be the need to include in constitutions a mechanism to resolve (predictably) missed deadlines. A third, more controversial, lesson may be to accept that in nascent democracies struggling with the myriad of challenges confronting Iraq and Afghanistan today a certain amount of constitutional flexibility may be necessary. Rule of law practitioners (and I count myself among them) should cringe at the parade of horribles that may result from starting down this slippery slope. (Another missed deadline, Art. 140's December 31, 2007 deadline for a referendum on Iraq's disputed territories, might have been more easily ignored as a result of the earlier more innocuous constitutional transgressions.) And to be sure, the far preferable solution is a document that is itself responsive to these challenges. But no constitution, however well crafted, will be able to provide for every contingency -- particularly in nations where development of the constitutional "rules of the game" has far out-paced political maturation and development of a cohesive national compact. Iraqis have been pragmatic and creative in resolving crises stemming from missed constitutional deadlines. May Afghanistan similarly resolve its own.

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