Still No Agreement on Iraq’s Parliamentary Membership

Almost one and a half years after the general elections of 7 March 2010 and amid persistent street protests, the Iraqi parliament can’t even make up its mind as to who exactly are its 325 members.

According to the official agenda, yesterday’s session of parliament should have been devoted to such momentous issues as the second reading of the strategic policy council bill and a vote on the amended parliamentary bylaws. As expected, none of this was actually addressed by the almost half-empty assembly. However, the presidency of the parliament announced an interesting forthcoming vote – supposedly on Saturday – on the “correctness of the parliamentary membership” of three deputies, namely Jawad al-Shuhayli, Jamal al-Gaylani and Ammar Hasan Abd Ali.

The reason there are controversies relating to these and other members of parliament is the replacement process that began in December 2010 for deputies that became promoted to ministers in the second Maliki government. That process continued well into 2011, and in March came to involve a vote on 7 deputies whose membership qualifications were in doubt. Lately, the matter has been further complicated by the fact that more than a dozen ministers lost their cabinet jobs as a result of the government downsizing and have demanded they get their old jobs as deputies back!

Of the three cases in the latest batch of controversies, that of Shuhayli should be the most straightforward one. Shuhayli replaced Nassar al-Rubayie, a Sadrist. While Shuhayli is from the same list, he ran as a candidate in Dahuk,  where there are almost no Shiites and where he received almost no votes. For his part, Rubayie was a candidate in Baghdad. In other words, in this case, the law on replacement of deputies has clearly been violated since the legal (and constitutionally mandated) balance between governorates has been upset.  Except, of course, that parliament has already once overruled the law and the constitution in this very case since Shuhayli was included in the March vote – and unlike in the case of Jawad al-Bulani, no one appealed the decision. The question is, can parliament challenge it own previous decision in this way, effectively acting as its own appeal court? Article 52 of the contitution just says that the parliament rules, with a two-thirds absolute majority, on the correctness of its own membership within 30 days of a complaint having been presented. That decision, in turn, is subject to a 30-day appeals period before the federal supreme court.

For his part, Gaylani was given a compensatory seat after Abd al-Karim al-Samarraie of Salahaddin and the Iraqiyya became minister of science and technology. Gaylani was also a Salahaddin candidate and he comes from the same Tajdid bloc as Samarraie. There should be no problems whatsoever with this replacement, and if someone is trying to challenge it on the basis of number of personal votes, they are simply misreading the deputy replacement law (which was written at a time when there were no personal votes in the electoral system).

Perhaps the most problematic of the three will be the third case, of Ammar Hasan Abd Ali. He was given the seat of Jamal al-Batikh from Wasit who became minister of state in February and was a member of Iraqiyya for Wasit at the time. That decision has been challenged by members of Batikh’s breakaway faction, White Iraqiyya, which was formed just around the time Batikh obtained his portfolio. The question is whether the new bloc – which did not even exist at the time of the elections – can now claim ownership of the seat based on post-election realities.

In other words, even though this third replacement is correct as far as the governorate balance of deputies is concerned, the question is whether the replacement law is unambiguous as far as sub-entities within the same electoral list are concerned. The answer, alas, is no. The law is unclear because it refers to a bloc (kutla), a list (qa’ima) and entity (kiyan) in the same sentence, without making it perfectly clear which of them shall be used as point of departure for reckoning the replacement entitlements. One way of reasoning that could be made relevant here would be that since the only entity every voter knew about at the time of the elections was the list (qa’ima), it would make sense to use that as point of departure for replacements, instead of using kutlas which come and go, and which voters may be unaware about.

These three cases come on top of the problem of what to do with the ministers of state that unceremoniously lost their jobs in the recent government downsizing. Recently, the consultative state assembly ruled that these ministers should be given their deputy jobs back, despite the absence of any modalities governing that kind of eventuality in the deputy replacement law. Symptomatically, perhaps, this ruling has yet to be published by the Iraqi ministry of justice.

What all of this may serve to remind us is that in a context of immature institutions in the middle of a democratic transition, calling for new elections might well prove counterproductive. Maybe a far better option would be for parliament to try to work for reform from within. And maybe the best place to start would be two pieces of legislation that are actually called for in the constitution: The federal supreme court bill and the special constitutional revision that has yet to be implemented.