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November 05, 2005

Professor Louis Aucoin Shares with Fletcher Students His Perspectives on the Iraqi Constitution-Making Process

These are just two of the challenges that confronted the drafters of the new Constitution of Iraq, according to Professor Louis Aucoin, who shared his perspectives with Fletcher students on the constitution-making process in a forum organized by the International Negotiation and Conflict Resolution Club and the International Law Society on October 31.

The new Constitution of Iraq, which was ratified last October 15 in a referendum vote, was the product of a draft prepared in 2005 by the interim Iraqi Government to replace the Transitional Administration Law (TAL), which was executed by the Coalition Provisional Authority in 2004.

Aucoin said that a major flaw in the preparation of the TAL, which defined the parameters of the new Constitution, was that it focused more on the substance and barely addressed the issue of process.

“In constitution-making, the process is always more important than the substance. The substance gives legitimacy to the resulting document,” he said.

Aucoin also said that the rules in constitution-making process need to be inclusive and permit open and free participation by the population. He said that while he did not want to use the South African Constitution as the paradigm of the constitution-making process, it could serve as a potential model as it adhered to the ideal two-phase approach which involves educating the population on the process and conducting actual consultations.

However, Aucoin emphasized that there is no monolithic model on constitution-making. One example that he gave, though, was the creation of constitutional commissions which are independent of the government and other interests and which are responsible for the conduct of civic education and consultation with the population.

Aucoin then went on to discuss the results of a conference held in the first quarter of 2005 in Jordan that was organized by the American Bar Association and the U.S. Institute for Peace. He said that the event brought together specialists from all over the world who had played relevant roles in constitution-making to enable them to share their experiences with Iraqi leaders.

“Despite that, however, the Iraqi constitution-making process has gone into disarray and has created a negative perception of the U.S. government. The new Constitution has very limited legitimacy,” Aucoin said.

During the question session that proceeded Aucoin’s talk, Jennifer King, a first-year MALD student, asked what changes he would make if he had the chance to redo the process.

Aucoin replied that he would emphasize the role of the international community writ large and pursue multilateral support over bilateral support.

“What we had was the U.S. being an occupier acting as a supporter—this is a recipe for failure. I cannot imagine the U.S. gaining legitimacy in the process with the current conflict,” he replied, adding that he was uncomfortable with the idea of hiring advisors in the drafting of the document.

“While this is not entirely improper, the advisors have to level their participation,” he stressed.

Responding to a follow-up query from Gillian Cull, a second-year MALD student, who inquired if the international community can be totally impartial when intervening in the constitution-making process of another state, Professor Aucoin replied in the negative.

“They also have interests to protect, so naturally, they cannot be wholly impartial. However, they can be permitted to intervene with respect to the drafting process, not with the substance, which should be left entirely with the constituency to decide,” he said.

Aucoin said that while there is no precedent wherein a constitution provides for a period for correcting flawed provisions, he “holds out a glimmer of hope” that the Iraqi leadership can effect liberal amendments on the document.

“That is the only way by which the Constitution may ultimately be able to attain legitimacy,” he said.

Article by Sharon Rivera, MALD '07

Posted by jessica at November 5, 2005 09:50 AM