The Hamudi Files and Article 76
Posted by Reidar Visser on Thursday, 10 June 2010 15:05
On the eve of the first meeting of the Iraqi parliament (scheduled for next Monday) and amid frantic attempts by some Shiite leaders to unify their two blocs more effectively, the interpretation of article 76 of the constitution on the selection of the premier candidate has assumed renewed relevance. In particular, after having been confined to rumours and contradictive press reports since the middle of May, pieces of evidence relating to the constitutional drafting process in 2005 have recently been circulated in the shape of a video snip from the fourteenth meeting of the constitutional committee on 25 July 2005, and some of this material has been published by the television station Al-Sharqiya.
The brief video snip shows an altercation during a meeting in the constitutional committee mainly between Sami al-Askari (of Daawa) and Humam Hamudi (of ISCI, the committee chairman). There is also a third person involved mostly outside the view of the camera, possibly Nadim al-Jabiri (of Fadila) who appears at the very end of the snip. Most significantly with respect to the debate about the interpretation of article 76, there is reference to a report of a previous meeting which according to two of the three men states that the right to form the next government should be “according to the electoral achievements” (hasab al-istihqaq al-intikhabi), which would confirm the interpretation favoured by Iraqiyya of disallowing post-election super-alliances of electoral blocs for the purpose of supplying the premier candidate. Hamudi protests, but not very effectively at first. He interjects and says, “hasab al-istihqaq al-intikhabi al-niyabi” or “according to the electoral parliamentary achievements”. Seen in isolation this does not mean a big difference and would just refer to the distinction between percentages of the vote and the percentage of seats actually achieved, and as such also in conformity with the current Iraqiyya position. However, Hamudi muddles the situation by referring to the existence of “two views” on defining the right to form the government (alas the Nokia tune corrupts his attempt at clarifying this!), and also mentions the term “parliamentary bloc” (kutla niyabiyya), which is indeed the language that ended up being used in the constitution. The video ends without any conclusion to the debate.
The context in which this information emerged is in itself interesting. Sami al-Askari raised the question in relation to the scenario of a second premier candidate, in case of the failure of the first. There is discussion whether the second candidate should come from the same bloc that was given the first attempt, or another one – obviously this is where the point about clarifying “electoral achievements” becomes particularly important. Again, though, and often overlooked, the final version of the constitution in fact remains mute on this question and really places all power for selecting the second candidate with the president. The only requirement, actually, is that he should be a “different” candidate from the first, i.e. he could be any eligible Iraqi (same requiements as for president except a minimum age set at 35 years and a college degree etc.), and strictly speaking does not even have to belong to any of the parties in parliament. Nonetheless, some Iraqi politicians today still seem to believe that the right to be the second premier candidate belongs to the second biggest bloc in parliament.
On the whole, the video provides an important indication that these issues had been thought about in 2005, and that many Shiite Islamist members of the constitutional committee advocated the view that is now being promoted by Iraqiyya, to the point where this at one point was reflected in a written report. Clearly, it would be helpful if a copy of that report were put in the public domain too. On the other hand, though, it has to be remembered that many of the most catastrophic parts of the constitution were not really authored until the subsequent month of August (this was when the Kurds brought in people like Peter Galbraith to consult on matters relating to federalism). Against that backdrop, the video of the 25 July meeting is primarily a testament to an ongoing dispute at an early point of the constitutional drafting process rather than a definitive and unequivocal account of the true “intentions of the framers”.
Some of the arguments by Iraqiyya leaders these days for a “democratic” right for the biggest bloc to form the next government are persuasive, and in particular the fact that few Iraqi voters were informed that the two Shiite blocs planned a merger. On the other hand, though, the argument that the “biggest electoral bloc” logic is applied universally across the world of democracy is incorrect. It is used in many democracies but not everywhere; for example in the UK one possible scenario after the recent election was that of the second biggest bloc (Labour) outperforming the Conservatives in negotiations with the Liberals and thereby staying in power. In the kind of confused situation Iraq is facing today, probably the best thing for Iraqiyya to do in coming days and weeks is to focus their energies on actual attempts at coalition building first and foremost.
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