The First Step of the New Maliki Government: Attaching the Independent Electoral Commission to the Executive

The batch of decisions by the federal supreme court released earlier this week contained another interesting item in addition to the refusal to rule in the parliament replacement debacle. In a lengthy ruling, and probably one of the more innovative pieces of jurisprudence ever produced by the court, it has decided that henceforth the “independent commissions” and in particular the Iraqi election commission (IHEC) are to be “attached” to the executive branch of the government.

This is an extraordinary move since the constitution is crystal clear in article 102 with respect to how IHEC is answerable to the legislative branch of government, i.e. the parliament and not to the the government:

تُعد المفوضة العليا لحقوق الانسان، والمفوضية العليا المستقلة للانتخابات، وهيئة النـزاهة، هيئاتٌ مستقلة، تخضع لرقابة مجلس النواب، وتنظم اعمالها بقانون

But through a lengthy argument and creative thinking, the court in its latest ruling manages to put this unambiguous provision to one side by arguing instead that the nature of the work of IHEC is of the “executive” kind and hence its subordination to the legislative branch of government contradicts the principle of separation of powers, which is also part of the constitution as a general principle!

In other words, the court has detected an “error” in the 2005 constitution, and rules in favour of the government against a clause of the constitution itself. This is interesting firstly because it indicates the amount of pressure that must have been brought to bear on the court from the government. Secondly, it begs the question of why the court is not doing anything to explicitly address a far more glaring “error” in the constitution, i.e. the obvious contradiction between article 115 (which gives residual powers to both federal regions and governorates) and article 122 as well as the whole provincial powers law of 2008 (which subordinate the governorates to Baghdad in a more comprehensive way). In this question the court has increasingly ruled in favour of the central government although clause 115 on the residual powers of the governorates is arguably stronger. Thirdly, the timing is also interesting, since the request from Maliki’s lawyers to make the change is dated 2 December 2010, i.e. at a time when he had not yet had his new cabinet confirmed but evidently had the audacity to enter into such controversial legal territory apparently without any fear of creating scandal. But then again, this latest decision just adds to the impression of a political system that is rotten to the bone. Unlike the Tunisians, however, the Iraqis and the Iraqi press just don’t seem to have the guts to do anything about the situation.