PM Nomination Trouble in Iraq
Posted by Reidar Visser on Tuesday, 29 July 2014 23:22
Unlike the procedures for electing the president of the republic (for which a separate law with elaborate procedures exists) the nomination of the Iraqi prime minister is governed entirely by the Iraqi constitution. As a result, the selection of the prime minister candidate is arguably the most sensitive and unpredictable stage of the Iraqi government formation process.
With respect to the Iraqi constitution, it simply says in article 76 that within 15 days of his election, the new president must charge the candidate of the largest parliament bloc to form a new government within 30 days. The new cabinet will then be presented for parliament for approval by an absolute majority – for ministers individually, as well as the cabinet programme.
Beyond the constitution there is an opinion by the Iraqi federal supreme court – no. 25 of 2010 – that sets out to clarify some of the vagueness of article 76. This piece of constitutional jurisprudence has been cited (and criticized) far more than it has been actually analysed. What the opinion does is basically two things. First, it provides a specification about what is meant in article 76 of the Iraqi constitution on the duty of the president to charge the candidate of the largest parliamentary bloc to form the government. On this, the opinion suggests that it is irrelevant whether the bloc was formed before or after the election, which was an issue of contention in 2010. The opinion on this is quite logical and not as contrived as has been suggested since the constitution talks about parliamentary bloc (kutla niyabiyya) rather than electoral list (qaima). However, secondly, the opinion of the court goes on to introduce a point whose relationship with the constitution is more unclear. It establishes a cut-off date for bloc formation by saying that what counts is bloc size at the time of the first sitting of the new parliament. It is not clear why, after the general principle of post-election bloc formation has already been admitted, there should be any reason to consider the first meeting of parliament as particularly important from the constitutional point of view. After all, parliament can be expected to have several meetings before the PM is nominated even if the constitutional timelines are strictly adhered to, and it would for example be far more logical to establish a cut-off point following the election of the president, when a 15-day window for finding the PM nominee begins.
In any case, what all of this suggests is that the Iraqi constitution is far from crystal clear on the nomination of the PM, and that at least a degree of presidential discretion should be taken as a given – and certainly with respect to what point in time the “largest bloc” should be estimated. However, although Iraqi politicians have engaged in a ridiculous amount of correspondence to indicate their bloc size at the time of the first parliament meeting on 1 July, it really is a different problem that is now more acutely coming into the foreground. The problem is that Iraqi factions seem to cling to the erroneous view that the right to form the next government is governed by bloc size alone. That view is misleading. There are two elements in the constitutional instructions for the president: He needs to identify a bloc, and a candidate. Blocs are only relevant for purposes of government formation if they also have a candidate. Candidates with no blocs are irrelevant; as are blocs with no candidates. In other words, a bloc does not have a right to form a government by virtue of size alone. And that is why all the calls for the Shiite alliance to be charged with the premier nomination, as an assumed “right of the bloc”, in the current situation are beside the point, since the Shiite alliance doesn’t have an agreed PM candidate. A bloc with no PM candidate has no right to even enter the discussion of government formation, no matter its size.
The biggest bloc in the Iraqi parliament that also has a PM candidate is currently State of Law, whose candidate of course is Nuri al-Maliki. Members of this bloc, including Maliki himself, are now explicitly demanding the right to form a government, separate from the rest of the putative pan-Shiite alliance. Unless a bigger bloc comes up with a candidate before the constitutional timeline for PM nomination expires on 8 August (or a few days later if holidays are counted), President Fuad Masum has a constitutional duty to charge Maliki with forming his third government, regardless of whether he has a realistic chance of reaching an absolute majority when he presents it to parliament for approval or a second attempt by another candidate will be needed.
Whether this second scenario will come into play remains to be seen. Noteworthy in this respect is the almost sensational amount of presidential discretion that exists in the case the first PM nominee fails. The president ‘s job, in that case, is simply to find “a new candidate”. Yes, you read that correctly – article 76-3 of the Iraqi constitution. It doesn’t say which bloc the second candidate should come from, just that it should be a “new candidate”. Apart from the general age and education requirements of article 77, there is, in other words, nothing much to go by. In theory, then, the president’s mandate in the potential case of a second PM nomination could be interpreted as using his political skills to select whomever he thinks has the greatest chance of carrying an absolute majority in the Iraqi parliament .
Iraqi politicians now have the rest of the Eid and the next weekend to contemplate these issues. But soon they will have to go beyond the debates about numbers and focus on the premier candidates themselves.
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