Iraqiyya Challenges the Jurisdiction of the Federal Supreme Court

In its reaction to the recent opinion by the Iraqi federal supreme court on the permissibility of creating post-election alliances in order to achieve the position as the “biggest bloc in terms of numbers”, the Iraqiyya alliance headed by Ayad Allawi has challenged the jurisdiction of the court itself.

Strange as it may sound, the challenge is in fact quite plausible. It relates to yet another aspect of incompletion in the post-2003 framework of government in Iraq: While the constitution adopted in 2005 does create an overall framework for the federal supreme court, a number of central issues – including the key question of the composition of the court – have been left to be hammered out by future legislation. Not only that, the sensitivity of the issue of the court’s composition was considered to be such that a provision was made for a special majority (two thirds of the parliament) for the relevant bill to pass. Needless to say, no law has seen the light of day so far, and the closest Iraq has to a supreme court are relics of the CPA period. These are namesakes of the institutions outlined in the constitution, but they are not identical: Rather the parameters of their operation are defined in separate legislation passed in February 2005, i.e. several months prior to the adoption of the constitution.

Crucially, the prerogatives of the court that were defined in February 2005 are narrower than those adopted in the constitution. Whereas interpretation of the constitution was indeed part of the latter (which clearly foresaw a federal supreme court functioning as a constitutional court proper) this power is not enumerated in the legislation that was passed in February 2005. In other respects there are many similarities, including the authority to settle disputes between the various levels administration in Iraq as a federal state (regions, governorates, sub-governorates, etc.), as well as reviewing the constitutionality of laws that are passed. But while some may see the latter as an implicit recognition that the court does exercise a degree of constitutional interpretation (how could it otherwise perform constitutional review?) it does seem significant that the task of interpreting the constitution is mentioned specifically in the description of the (projected) federal supreme court in the constitution, indicating that this new prerogative is intended to go beyond what had been stipulated in the February 2005 legislation. It is of course problematic that even though much of the work of the federal supreme court has indeed focused on relations between the various levels of government (as mandated by the February 2005 rules), in some cases it has already exercised a degree of constitutional interpretation of the kind that is now being challenged by Iraqiyya.

As for the substantive issue at hand one may sympathise with either side, depending on whether one wants to take a scriptural reading of the constitution or emphasise democratic values more broadly. From the technical point of view, it is true that the constitution is vague by simply identifying “the biggest bloc in parliament in numerical terms” as the force that is to be charged with forming a government, upon request from the president. In practice, during the 2005–2010 period, the definition of a “kutla” has indeed proven to be elastic, since big “kutlas” have become smaller (most notably the United Iraqi Alliance, which today is listed in parliamentary documents as the Sadrists, Fadila and the rump UIA), and some smaller once have grown (for example the breakaway ex-Iraqiyya deputies that eventually amalgamated into an entity of their own). From the point of view of democratic theory, though, the idea of post-election coalition-forming comes across as somewhat more suspect, since it would involve a great amount of backroom deals in which the electorate had no say at all.

Some will perhaps object and point out that such post-election deal-making is after all a natural part of the democratic process in many countries, and also that the idea of the biggest bloc in parliament forming the government is not necessarily universal. But there are key differences with the Iraqi situation. In mature democracies, coalition scenarios are often part and parcel of the election campaign; in Iraq, by way of contrast, almost nothing was done by the parties to communicate to the electorate their visions of possible post-election deals. Similarly, while the president in many democracies is given a certain leeway to evaluate the prospects of government viability more broadly before singling out a PM nominee (instead of automatically giving the job to the biggest bloc), the problem in Iraq is that the selection of the president is part of the same electoral dynamic that produces the parliament, and whoever holds the position is therefore less credible as an independent broker in this kind of process.

Meanwhile, if there is no legal arbiter in this matter, the best way to avoid a violent showdown over the issue would be for Iraqiyya to make headway with its coalition-building initiatives and thereby forestall the kind of super-alliance to which it objects (most realistically just the Iraqi National Alliance and State of Law merging to form the “biggest bloc”, which would be a copy of UIA, the all-Shiite alliance of the past). There is much to suggest that the internal friction in the would-be rejuvenated UIA remains considerable, but the Sadrists seem to be moving ahead with some kind of internal consultation process with its supporters on the best PM candidate, which might have a significant impact given its overall strength within the INA, and should indicate to the Iraqiyya leadership that the clock is already ticking.