Constitutional Disintegration

[Update 21 November 2009 14:15 CET: The Iraqi parliament has adjourned without discussing the Hashemi veto in the full assembly, presumably because an attempt to come up with a consensus reply is going on. There is an added urgency to the situation now, given that this week in Iraq is probably going to be a short one with Eid al-Adha coming up. After that point, there is no more than three weeks’ time before the Islamic new year and Muharram]

Today’s heated scenes in the Iraqi parliament are symptomatic of a more general tendency towards constitutional chaos in Iraq in the wake of the adoption of the elections law on 8 November and the subsequent veto of it – or parts of it – by Tariq al-Hashemi yesterday. At one point, the Sadrist head of the legal committee triumphantly announced that the federal supreme court had effectively vetoed the veto for being unconstitutional; on closer inspection it turned out matters were not so clear cut and the parliamentary speaker, Ayad al-Samarrai has announced another early-Saturday session on 21 November for the legal committee (and, maybe, the whole assembly) to consider the veto, saying there was no contradiction between the Hashemi veto and the opinion of the court.

The core of the problem here is the strong but not very detailed powers assigned to the temporary tripartite presidency council in the 2005 constitution. The presidency council reviews all legislation submitted by parliament; unless all its members agree to a bill it must be returned to parliament within ten days of receipt. This procedure can be repeated once more, but may then be trumped by a three-fifths majority of the parliament. Beyond the timelines and the general consensus requirement, no other specific procedural details are outlined in the constitution.

In terms of its constitutionality, there are two aspects to the Hashemi veto. With regard to the substance matter of the veto, there should be no problem at all. Hashemi protests the low quota of seats assigned for out-of-country voting, aka the “national” and compensatory” seats that will total 5% of the total seats less a minority quota of 8 seats. The specific figure is set not by the law but by the Iraqi elections commission (IHEC) based on ministry of trade statistics, and in practice has recently been stipulated to 8 seats. The constitutional requirement is one parliamentary deputy per 100,000 Iraqis; accordingly, unless one really believes there are less than 800,000 Iraqis abroad, it is very hard to disagree with Hashemi. The minuscule quota of “national” and “compensatory” seats” that is left after the deduction of minority seats is probably the most explicit violation of the constitution that can be found in the amended electoral law, and as such the law should be eminently vetoable. Even Prime Minister Nuri al-Maliki probably agrees that there are several million Iraqis living abroad, and there cannot possibly be anything “sectarian” about such a veto (even if many newspapers, and certainly international ones, have hinted at precisely such a connection).

The real problem concerning the veto concerns a second (and ultimately more practical) aspect – its form. This is an attempt at rejecting only a single article of the amendment to the election law. Through instructing the parliament to revisit only a limited section of the bill, Hashemi is entering unchartered constitutional territory that can easily become something of a quagmire unless there is a disciplined legal committee and strong-minded parliamentary presidency to do the navigation. Add to this the political context of all of this – and especially the fact that the Kurds are seeing an opportunity to press for a few more changes that would enhance their share of the pie, especially through larger minority quotas that could include pro-Kurdish representatives of the smaller communities in the north – and it is easy to be pessimistic about the prospect of an early resolution. If the outcome of all of this is a reversion to the closed list system of 2005 or no elections at all, then the net outcome of the veto will be a negative one for the nationalist forces Hashemi ostensibly is seeking to empower.

If the attempt by Hashemi to restrict the veto to a single article thus seems somewhat problematic, reactions to the veto by Iraqi parliamentarians have been even more worrying and serve to reinforce the impression of constitutional frailty in today’s Iraq. In a strongly worded letter, the second speaker of the parliament, Khalid al-Atiyya, a Maliki ally, today dismisses the veto for being unconstitutional “because it does not refer to a violation of a single clause of the constitution or to the by-law of the parliament”. Atiyya then goes on an on with vague and abstract references to the “will of the Iraqi people” and threats to the Iraqi democracy. But where is the constitutionality of Atiyya’s rejection of the veto? Where is the requirement that a veto be furnished with elaborate references to the constitution? After all, the presidency council is the ugly, omnipotent monster that the elites of 2005 created in with the aim of guarding their own privileges; it vetoes but it does not necessarily have to speak its mind. In other words, the presidency council is not the constitutional court. At any rate, proving the constitutionality of the demand for one deputy per 100,000 voters is exceedingly simple, since the requirement has been spelt out in the constitution itself. Nevertheless, almost all the members of the old Shiite Islamist alliance (UIA) have reacted with fury to the veto today, mostly without providing arguments that truly relate to constitutional aspects. One Maliki adviser even suggested that the veto was unconstitutional because it was not unanimous, which is to turn the whole constitutional provision for the presidency council upside down.

The whole situation inevitably brings up memories of the rather shameful attempt by KDP/PUK/ISCI to use the presidency council in March 2008 to veto the provincial powers law because it set a timeline for local elections (which those parties wanted to avoid). After first having voted in favour of other parts of the law, ISCI along with the Kurds tried to vote down the article that created an election timeline; ISCI subsequently presented a presidential veto that contained criticism of the articles they themselves had voted in favour of earlier! But it was the subsequent withdrawal of the veto that sheds light on the fragile constitutional situation in “the new Iraq”. After an unannounced visit by US Vice-President Dick Cheney the veto was promptly removed without further ado – despite the fact that there is no such “undo” option in the Iraqi constitution.

Whereas a similar desire to move forward with elections seems to exist in Washington this time as well, it is to be hoped that the Iraqis now can find their own way out of the problem. The federal supreme court might be a potential arbitrator; it is currently made up of judges with secular career backgrounds and has previously signalled a certain independence from the powers that be, but it seldom speaks unless the constitution contains specific language of relevance. Today, it reportedly confirmed the validity of Hashemi’s demand for one deputy per 100,000 Iraqis but without settling the issue in a definitive way. Another potentially face-saving mechanism for all involved refers to the extremely vague provision for out-of-country voting that remains from the 2005 law (it just says the expatriate vote will be reckoned at the “national” level), as well as the new stipulation of the amended bill that the IHEC will work out the exact practical procedures. In theory, then, without doing too much injury to the existing bill (and while saving both time and the risk of parliamentary delays), the IHEC should be able to cut a deal with Hashemi whereby new semantics could pave the way for a nineteenth electoral district proper for out-of-country voting (of maybe 20-30 seats), all in return for a withdrawal of the veto. In this way, the expatriate vote could be kept separate from the 5% quota for minority/compensation/national seats while at the same time satisfying the constitutional requirement of 1 deputy per 100,000 Iraqis (which after all is confirmed also in the recently-passed bill). That would, however, require that the IHEC is willing to prove its political independence. Today has above all been about negative knee-jerk reactions from many Iraqi parliamentarians who simply do not appear to be interested in the reasoning behind Hashemi’s veto.