The Caretaker Joke, and a More Serious Problem
Posted by Reidar Visser on Thursday, 16 September 2010 16:29
Iraq is slowly emerging from Ramadan mode but it is already weekend again and it might as well be useful to take a closer look at an interesting detail from the big Obama speech on Iraq on 31 August:
“A caretaker administration is in place as Iraqis form a government based on the results of that election.”
What a truly Delphic assertion. At first sight one might wonder whether Obama was trying to put the Maliki government on notice by designating it as “a caretaker government” instead of a normal one. But no, a closer look at statements by White House spokesman Robert Gibbs and Vice-President Joe Biden suggests that there was in fact an attempt at putting a positive spin on the situation in Iraq. According to Gibbs, “more importantly, there is a caretaker government that is making decisions on behalf of the Iraqis.” And then Biden, “unlike after the last election, however, a caretaker government is providing security and basic services and preventing a dangerous power vacuum from erupting”.
Aha! A caring caretaker government that carefully takes care of Iraq. So it was meant to be positive, after all. The problem is that it all resonates poorly with the Iraqi debate on the subject, and moreover that the labelling of the Maliki government as a “caretaker government” is in fact fallacious and unconstitutional.
Here is why. In the autumn of 2009, enemies of Nuri al-Maliki in Iraqiyya and the Iraqi National Alliance (INA) began making strenuous attempts at labelling the government as a “caretaker” one in an attempt at restraining Maliki’s spending powers prior to the elections. They appeared not to care a fig that such a designation was a legal concoction with no basis in the constitution, but eventually modified their demands – first to a “law on electoral conduct” that would go some way towards restraining Maliki but was never passed, and then by restricting Maliki’s spending powers somewhat in the 2010 budget. But of course throughout this period the government maintained exactly the same legal status, since there simply is no constitutional provision for changing the status of the government after an election. Such a change in status comes into effect only if parliament is dissolved prematurely; otherwise all that is specified relates to the steps and the timeline for forming a new government. It should be added that Biden’s attempt to create a contrast to the situation in 2006 is also erroneous. Just like the constitution adopted in 2005, the Transitional Administrative Law that remained in place under the Jaafari government did not explicitly change the status of the government subsequent to the first legislative elections; rather it stipulated a deadline for the formation of a new one (31 December 2005) which like all other deadlines in Iraq was cheerfully violated, in that case by around six months.
One may still wonder how this curious designation found its way into the White House. One possible route is through Ad Melkert of UNAMI, whose ideas are often listened to by the Obama administration. In early August, before the UN Security Council, Melkert said “a common understanding seems to have evolved last week among all political blocs over whether indeed the stage of a ‘caretaker’ government has been reached.” This is however misleading. What happened was as follows. After the elections, some Iraqiyya and INA members have continued their vivid exegesis of the Iraqi constitution to claim that the current government is a caretaker government. This reached its height in late July, when a legal counsel to Nuri al-Maliki, Tariq Harb, presented an elegant, diplomatic and constitutionally correct refutation by saying that the current government was for practical purposes a caretaker government, since the constitution explicitly demands parliamentary consent for certain decisions (treaties etc.) and since parliament is not operational. In other words, the current Iraqi government could perhaps be construed as a de facto caretaker government, but surely any attempt at a de jure designation of it as a caretaker government would be unconstitutional – one might as well declare Mithal al-Alusi the King of Iraq, since that kind of action similarly has no legal basis. Nonetheless, some Sadrists and other INA members shouted loud hurrahs afterwards, claiming victory; Melkert then flew off to the UNSC with his interpretation of the events based on the INA version and it later ended up in the Obama speech.
Why should we care about these ridiculous details? Because the US government seems to underestimate the extent to which competing interpretations of the constitution may be used to determine who should form the next government in Iraq. For example, how will Iraqiyya react if its claim to a privileged role in forming the next government is trumped by an all-Shiite alliance? How will the Shiite alliance, in turn, respond to US-inspired attempts to check the powers of the prime minister that are not in the constitution? If the US government wishes to make a meaningful contribution to forming the next government in Iraq and assist the Iraqis in identifying solutions that are both realistic and constitutionally acceptable, it should pay greater attention to what is in the constitution and what is not. It may however be too late, since the drift towards a focus on the putative pan-Shiite alliance has strengthened during Ramadan, which on top of the legal issues brings up the issue of stalemate within that alliance. Often it is forgotten that the problems we are seeing between INA and Maliki in many ways go back not to 2009 or 2005 but rather to the 1980s when the Daawa seceded from SCIRI in Iran.
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