Iraq and Gulf Analysis

An Iraq Blog by a Victim of the Human Rights Crimes of the Norwegian Government

The Iraqi Supreme Court Strikes Down Law Limiting Prime Minister Terms

Posted by Reidar Visser on Tuesday, 27 August 2013 13:41

The Iraqi federal supreme court has this week made a decision that renders invalid a law passed by the Iraqi parliament earlier this year that attempted to block a third term for Prime Minister Nuri al-Maliki.

First, two notes on the general debate about this latest decision are in order. Firstly, the supreme court has not “vetoed”  the law, or “rejected a draft” as AP put it. No one vetoes laws in Iraq after the transitional presidency council disappeared in 2010. The law was already published, and, theoretically, in force. In striking it down, the court deemed it unconstitutional after a specific challenge had been mounted against it by  supporters of Prime Minister Nuri al-Maliki.

Second, it should be noticed that the Iraqi supreme court has become rather erratic in its official communications lately. In a trend that has afflicted several Iraqi government websites (including most recently that of the parliament), what was formerly a useful website has become the victim of a fancy upgrade that severely restricts its readability (and the access to past rulings). Accordingly, information about this latest ruling must at the current stage be glanced from secondary reports in the media.

The chief question regarding the court’s decision is what argument was used for striking the term-limit law down. Most reports cite an argument used by Maliki’s supporters that no such term limit exists in the constitution as far as the prime minister is concerned, whereas a specific limit occurs with respect to the presidency of the republic. Had the framers of the constitution wished for a limit, the argument goes, one would have been explicitly included.

The second argument that has been cited as a possible justification for the court in striking down the law, is the distinction the court has made in past between law “projects” (that have passed through the cabinet before being considered by parliament) and “proposals” (draft laws passed without any cabinet interference). The court has previously argued that the Iraqi constitution maintains a sharp distinction between these two, and that “proposals” need to be transformed into “projects” through cooperation with the cabinet before they can be considered a fully-fledged law, i.e. in practical terms severely limiting the right of the Iraqi parliament to act independently of the cabinet. Sadrist Bahaa al Aaraji, not always the most trustworthy of sources, claim this argument was reiterated by the court in its most recent ruling on the term-limit law. That would certainly be significant since there has been an increase of attempts by parliament to circumvent the cabinet through “law proposals” in recent years.

Whatever the exact wording, the ruling is clearly a pro-Maliki one, and thus confirms the continued influence of Maliki allies on the court including supreme court chief Midhat al-Mahmud (whom Maliki adversaries had earlier tried to get rid of). One of the next thorny issue for the court and Iraqi politicians to consider will likely be the elections law, where the pro-Maliki court in 2010 made a ruling that deemed unconstitutional the largest-remainder seat distribution mechanism that was in force in the last parliamentary elections. The law was changed to a more proportional formula, but after their relative decline in the local elections earlier this year, Maliki supporters have now found out they disagree with the supreme court on the issue!

The changes to the election law  could be an interesting quandary for the court and Maliki. In the past, court has shown a remarkable ability to contradict its own previous rulings. Maybe they actually don’t mind the latest changes to their website where the rulings of the past are becoming more and more difficult to retrieve.

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19 Responses to “The Iraqi Supreme Court Strikes Down Law Limiting Prime Minister Terms”

  1. Zaid said

    For the report, although i am totally opposed to a third term for al-Maliki, it seems to me that the court’s rationale is not contrived and that it is justifiable.

  2. Broadly agree with that. The law on term limits had some similarities to the strategic policy council law in that it attempted to subvert some of the principles of the Iraqi constitution through a simple decision in parliament.

  3. observer said

    if the argument used is that there is no mention of the limitation in the constitution – then it can be swallowed. But if the argument is that the law has to be blessed by the cabinet first, then is puts the executive higher than the parliament and therefore it is absured.
    peace

  4. Zaid said

    actually in my view, the court’s decision is correct on both counts. the iraqi constitution actually very clearly distinguishes between legislative proposals and actual bills, and only the latter can be voted on in parliament. although it does come across as absurd, this practice is actually very common in the arab region and in other parts of the world as well. its one mechanism amongst others that constitutions use to stack power in favor of governments under the guise of trying to impose order on the legislative process.

  5. Yes, one question I have been asking myself re article 60 of the constitution is, if it didn’t mean to distinguish it in this way, what else was the point of that article?

  6. Zaid said

    there is no other point. article 60 in the constitution is designed to prevent parliament from acting without involving government. lots of constitutions do this as well. modern practice allows for parliament to pass some legislation on its own but there are usually special rules that have to be followed for that to happen.

  7. Salah said

    The limiting of PM terms or its not big argument as such whether Iraqi Supreme Court agree or disagree. This is their intentions and their influences may be played big part in the outcome of their judgments and order.

    What’s important is the voting process and outcome. If Maliki /Dawa’a party have so supports and love between Iraqis then that the way Maliki will stay for another term simply it the wish of the majority of voters. If not then he can’t stay, he should leave.

    The main case here how perfect the voting and the process of the elections in Iraq. After 10 years is there incredible progress in the process, do we have faith that will bring the democracy in Iraq forward?

    This were the reality and truth hidden when it comes to the democracy in Iraq.

    Most importantly, are we believe in these guys/parties who handed the power in Iraq?
    Are they their work and behaviours looks toward improve/ build democratic institutions for their future and their “country”?

  8. observer said

    RV — really – what was the point? Do you forget that it was written by ideots who next to nothing about law and do not udnerstadn that there must have a definition to key words. Keep on giving slack to Midhat and company. Carry on. Peace

  9. Observer, as I see it, it is the job of the federal supreme court to interpret the 2005 constitution, and the job of the Iraqi parliament to revise any problems in it, of which there are many.

  10. Zaid said

    Observer – yes the constitution was written by a bunch of idiots, but article 60 is not unusual. it is very typical of Iraqi and Arab constitutional tradition. In so far as the PM’s 3rd term is concerned, the better approach would have been to call for the constitution to have been amended on this one specific point. that is something that could have been done; there was ample time and there was sufficient support for it in parliament and in the country. the parliament once again screwed up by pursuing a strategy that was doomed to fail from the start. really, what did they think the FSC was going to do? maliki’s opponents have made a mess of it as usual.

  11. Observing Observer said

    Just curious observer? What is your view on term limits for his royal highness in the KRG? And what do you make of the process that permits him to extend his rule- yet again- without an election? As for the framers’ idiocy and definitional weaknesses, I wonder what we are to make of Barzani’s attempt to exploit the constitutional ambiguity in KRG law when he said the two term limit does not apply to him because he was never elected? That’s moot, I suppose, because he never will be elected, because he is Iraq’s true autocrat.

  12. sulaiman said

    sulaiman yousifzai
    it is the task of the iraqi regime what they think will better and effective in the best benifit of the country.

  13. Onserver said

    Hey mo (my own personal observer ;)),
    When rv posts about barazani, then we can discuss… For now stay on topic. Maliki controls the judiciary. Judiciary can exploit the giant loopholes created by supposedly judicial scholors such as humam… End of discussion.

  14. Mohammed said

    Agheeti Observer:
    It certainly has been a while! Makanak khaalee wallah. First of all, kul 3am wa anta bi elif khayr. I hope you are doing well and in the best of health. I have certainly missed our correspondences through RV’s forum.

    Second of all, I am hurt…really hurt…that you would think so low of me as to that I would pick a nom de guerre as cheesy as “Observing Observer.” Despite our difference of opinion on certain issues, you know I fundamentally respect your intelligence and integrity. If I wanted to make a point about something, I’d directly address you and avoid theatrics. I pretty much have stopped posting on RV’s site since our debates ended last summer, when you took a hiatus, and RV had his own challenges to deal with that precluded us from having regular discussions.

    So as boring as this may sound to you, I agree that bringing up Mam Barzani in this discussion thread by one “Observing Observer” is really pointless. Irrespective of Maliki’s alleged control of the courts, I happen to agree with RV that fundamentally, the term limits law passed in parliament was unconstitutional .

    However, I highly doubt Maliki is going to secure a third term. I said last summer that Maliki needed to do three things and he would be re-elected in a landslide: 1) 24/7 electricity, 2)get oil to 4 million bpd, and 3) keep violence down . Instead we have rampant violence, Abu Ghraib prison break, ISF still using fake bomb detectors, oil production is flat to down, and no really change to electricity delivery. If the provincial elections were any hint, I doubt Dawah/SOL will secure a majority of shia votes this time around. In which case, Maliki will have to make a deal with some Sunnis and Barzani.

    So unless there is a miraculous improvement in the aforementioned performance parameters I have outlined above, or Barzani & Maliki suddenly become best friends— Maliki’s only play will be to delay the elections indefinitely. I don’t think Hakim/Sadr will let him get away with that. Nor will they let him get away with fixing the vote. Provincial elections were a disaster for SOL, but voting was mostly fair.

    Regards,
    The one….the original…Mohammed…aka Mo

    P.S
    Observer, I do hope you continue to post on this forum. I love hearing your views on matters and highly respect them.

    P.S.S
    Reidar, I hope your challenging situation has not kept you down my good cyber friend. I know that last couple of years have been tough for you, but your contributions to understanding Iraq are unique and irreplaceable.

  15. observer said

    mo, execuse me form making the asumption – but I am used to the tactics of da3wa and this diversion tactic is part and parcel of their “style”. Yes I know you are going to give me a lecture about you not beign a supporter of Maliki and Da3wa, etc., etc., but in the end your positions are mostly in the support of the islamic parties and that is what has destroyed Iraq. Regardless, and to stay on thread. I said that I am in supprot of the idea that it is unconstitutional to insert a term limit, but the basis on which the argument is made is just as important as the argument it self. If the argument is based on the “finding” that Parliament has not right to initiate a law, then that is wrong regardless of previous rulings. But if it is based on intent of the writers and that the fact that term limits was specifically mentioned for president but not PM, then it is fine by me. But if you are going ot accept that the latter is a proper basis, then you have to reject the interpertation of the sme Maliki court regarding electoral block vs. parliamentarian block. To use RV’s words, what is the point of having and electoral block if in the end it is the parliamentarian block that is goign to ahve the right to name the PM. You can not have the cake and eat it to.

    All the above theory aside, Iraqi is going to hell right now and I am fully prepared to see Maliki stop the constitution and declare a state of emergency, especially if an all out war is started in the region via Syria. All the She3a Islamic parties take their dictation from Tahran and do not expect anything to go counter to Iran’s interests. We are about to go into an abyss, but it seems nobody really is prepared. The politicians I meet seem to be oblivious to how dangerous our situaiton is.

    With respect to the electicity and services – you think Maliki is going to allow any demonstrations? Ballots you tell me!! hehehe. Dude you live in the US. You have not a clue on how we live here in Baghdad.
    Peace

    PS
    do not expect me to post much. I will particiapte every now and then, and I am even more reluctant now that the Islamic aprties have assigned a person to observe me… I do not want to give information that will be useful to your side of the fence.

  16. Mohammed said

    Observer:

    I’m glad you decided to stick things out and continue the good fight in Iraq. You are a better and braver man than I.

    To put an end to the constitutional debate issue, I am not a constitutional lawyer, but I have to respect Zaid’s opinions earlier in this thread (He is an expert on constitutions and is certainly not pro-Maliki), who wrote that the supposed reasons given by SC are not that unusual. If indeed the constitution stipulates that only the cabinet can introduce such forms of legislation before being passed by parliament, then that is yet another flaw in the constitution, and the fault doesn’t lie with the ISC. In any case, it’s a done deal so let’s move on.

    With respect to Maliki “allowing protests,” I argued over a year ago that sunnis should go to the streets and protest for the rights. You said back then, Maliki wouldn’t allow it. By and large, Maliki has been unable to stop such protests, and the response of the ISF has been largely peaceful save for Hawija and Ramadi protest, and protests have gone on for more than 8 months now.

    You overestimate Maliki’s power. If Hakim and Sadr will do as Iran wants as you claim—yet both despise Maliki, then most likely Iran will simply insist Maliki is removed and another Islamist shia politician will be put in his place. There is nothing holy about Maliki.

    If that is indeed what will transpire, it will be a tragedy. In my opinion, the masses yearn for a real viable alternative to dawa/SOL, sadr, and hakim.

    regards,
    M

  17. Salah said

    Observer – yes the constitution was written by a bunch of idiots؟

    No they are not idiots, but the were devoted to put this text to idiots…

  18. observer said

    mo, l am not going to yield on the issue of the contradictions in the constitution, but more improtantly on the politicization of Midha’st court to zaid or to anybody else. You do not need a law degree to spot the weakness in the argumentation. The law, basically, is logic. So wave your hands all you want, the issue of how politicized the court is, is not going to disappear and will have to be dealt with if there is ever going to be a state of law and order in this corner of the world….

    On maliki and the basic system put in place by the sectarian politicians….. We are about to have a war in Syria. Irony of ironies, Maliki who threatened to take asad to court for allowing jihadis into Iraq is now defending asad. What happened? Do you think Maliki is afraid that his files in the security departments in Syria will be exposed? Or do you think that orders are coming from Tehran?

    I am not going to comment on Hakim vs. sader vs. Maliki. There is too much at stake to be talked about in public. But Maliki knows that he is in an existential fight. All options are on the table.

  19. Zaid said

    The FSC is politicised and there is plenty of evidence to support that. This decision however does not fall under that category. Constitutions all over the world restrict parliament’s ability to pass legislation without seeking the government’s approval. There are lots of rationales for this:

    (i) in order to make sure that legislation sticks the government’s overall programme. If parliament is allowed unrestricted right to legislate that would, in many countries (particularly those that have loose electoral systems like Iraq), lead to total legislative incoherence. In countries that have a strong party system and a restrictive electoral system, it becomes less important to restrict parliament’s right to legislate;

    (ii) the logic behind this is that, if parliament is unhappy with government’s overall trajectory, then it should simply withdraw confidence. A parliament that unhappy with government’s performance but which is incapable of withdrawing confidence is clearly dysfunctional. The solution is either to withdraw confidence or to hold early elections.

    Once again, for me there is no question that Maliki has captured the court, but proper comparative analysis shows that this one decision is probably properly reasoned.

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