Parsing Iraq’s TAL: why bother?

My dear friend Juan Cole has recently devoted quite some space on his blog to his own and others’ parsings of the notorious “Transitional Administrative Law” (TAL) that desert fashion maven Jerry Bremer tried to foist onto the proud people of Iraq back in March 2004.
Well, many of us have spent time in the past parsing the 62 articles of that egregious document. I did so myself, back here and on other occasions around then, too.
But now, I ask myself, Why bother?
What was the “status” of that so-called “law”, anyway?
(Answer: It was a text adopted by an “Interim Governing Council” that had been appointed by the occupying force.)
Why on earth should that have any status at all, in comparison with, for example, the will of the people?
Okay, okay, I do know that the “will of the people” is a tough concept to necessarily operationalize or get a good grasp of. It is frequently fickle; it can be capricious or disturbingly majoritarian. But discerning it and operationalizing it are, at the end of the day, what democracy and good governance are all about.
And yes, I know too that there were many, many flaws in the election that was held three and a half weeks ago now, in Iraq…
But still, despite those many evident flaws– which included the use by members of at least one list of governmental powers and resources to try to steer the election their way; the overwhelming presence of occupation forces in many parts of the country; the intimidation campaign launched by militant anti-occupation (and militant anti-Shiite) forces; and the many, many reported irregularities or worse in the conduct of the election– Yet, despite all those flaws, in the January 30 elections the Iraqi people spoke.
The clarity of what they said was necessarily muffled and distorted by all the flaws described right there. But still, I think we can hear a couple of clear things in what they said. Which were, for a significant majority of them, these two statements:

(1) that they believe strongly the legitimacy of rulers springs from the popular will (which was, after all, why they turned out to vote); and
(2) that they reject a leader (Allawi) foisted onto them back last spring by the occupying force– this rejection, note, came despite the fact that Allawi enjoyed all the well-known advantages of incumbency.

Now okay, if we can say that those were the two main messages coming out of last month’s elections, it may not get us as far as we might want to be in resolving detailed issues of federalism, or who gets to control the country’s budgets, or whatever. (Though of course, even under the TAL, those were issues that would still ultimately be left for the Constitutional Assembly to decide.)
But if we can say that the Iraqi “people” sent those two basic messages on January 30, I think it can help us cut through a tremendous amount of currently fevered speculation.
Not only the speculation about the precise “meaning” of this or that clause of the TAL. On that one, frankly at this point after the elections, who gives a damn? At this point, after the elections, the TAL has been transformed into– at most– a suggestive or perhaps “first draft” type of a document.
Remember, as I had cited back in that early March 2004 JWN post of mine, that Ayatollah Sistani issued a fatwa that stated,

any law prepared for the transitional period will not gain legitimacy except after it is endorsed by an elected national assembly. Additionally, this law places obstacles in the path of reaching a permanent constitution for the country that maintains its unity and the rights of its sons of all ethnicities and sects.

In addition, if we agree that, in their participation in the elections January 30 a large majority of the Iraqi people were sending the two messages described above, then we can also say that all the present speculation about whether Allawi can “succeed” at making an end run around the UIA list is equally fevered and beside the point.
Let me repeat. Allawi had all the advantages not only during the election period but in the entire eight-month period leading up to it. And yet, the people roundly rejected his candidacy. From where is he going to cobble together a coalition to defy the will of the UIA leaders?
From nowhere.
So right now, according to the definitely Rube Goldberg-esque and anti-democratic “arrangement” prescribed by the TAL, the people elected to the Iraqi Assembly have to agree on a three-member “presidential council”, by a two-thirds majority vote, and then the “presidential council” needs to come to unanimous agreement on the name of a prime minister. The PM and the Council of Ministers then need to win a simple majority vote in the assembly before they begin work.
Where is democracy in this? Where is the will of the people as expressed in the elections? Where is accountability? Where are deadlines?
It is 24 days already since the election. It took the authorities an inordinately long length of time to certify the election. And now, where is the presidential council?
But why, at this point, should anyone give a darn about that whole cumbersome contraption “prescribed” by the TAL?
I am supposing that nothing much has happened in the past eleven months that has caused Ayatollah Sistani (and his supporters) to change their views regarding the status of the TAL. We have now had the election— an election for which Sistani has pushed and pushed ever since Day 1. So what’s the holdup? Why does it seem as though some people are still eager to deny to the Sistanist list the victory that it won?
Sure, the UIA people still need to work very hard to try to craft new terms of positive engagement between Iraq’s Shiite majority and its Kurdish, Sunni Arab, and other minorities. But there’s every sign that they can do that. They’ve shown extraordinary restraint in the face of terrible, terrible anti-Shiite provocatins over the past 18 months. They’ve said and done many things that indicate their desire to reach out to their non-Shiite compatriots, and their understanding of some of the sensitivities involved in doing so.
So why don’t the Americans just take a big step back right now from their continued, very meddlesome engagement in Iraqi politics, and let the UIA people, the Kurds, and the Sunnis all get on with what they need to do, which is to work together primarily to negotiate the terms of the country’s longterm Constitution?
As for the TAL, with all its extremely complex provisions for what should be happening right now? (But also, I note, no provision at all for what should happen if it should prove impossible to get the 2/3 majority needed for the presidential council, or whatever… In other words, a deeply flawed and inadequate document… )
But who needs the “TAL” anyway? It has performed its main and most important political task, which was to define rules for the country’s first post-Saddam election. Now that that has happened, maybe everyone should let “the will of the people” take over.