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More on the New Iraqi Provinces: Election Stunt or a Strategic Vision of Local Government?

Posted by Reidar Visser on Monday, 27 January 2014 4:49

The surprise decision by the Iraqi government last week to announce plans for altogether four new provinces has been met with mostly predictable reactions among Iraqi politicians. Kurds are angry; as are Sunni Arabs and particularly those of Nineveh who will get most directly affected by the central government’s plans to parcel out some of their territory to create new governorates. Conversely, there has been jubilation in some of the minority communities affected by the plans (Turkmens, Shabak, Christians). Few know what the people of Falluja – the last area to become a projected province – may think about the plans. Their problems are of a more immediate nature, with dramatic estimates of the number of refugees having left the city because of the recent flare-up in the conflict between the Iraqi government and sympathizers of the Islamic State of Iraq and the Levant.

At first it was tempting to assume that the reason behind the sudden declaration of new provinces related to the upcoming 30 April parliamentary elections, with Prime Minister Nuri al-Maliki possibly trying to win votes among Shiite minorities (and Christians) outside the Shiite majority areas. However, interestingly, a more elaborate justification for the scheme has now been presented, suggesting there could be an attempt at grander strategic thinking behind the initiative after all. Tareq Harb, a close legal adviser to Maliki, has maintained that the move is aimed at pre-empting the creation of more federal regions and the potential split-up of Iraq. According to Harb, by weakening large governorates like Basra and Nineveh, the prospect of them turning into federal regions lessens since the tiny rump governorate in each case would be “a joke” of a federal region. Among the potential new governorates enumerated by Harb are Rawa (Anbar), Balad and Dujayl (Salahaddin, both with Shiite populations) and Qurna (Basra).

Meanwhile, the legal framework concerning the creation of such new governorates remains unclear. It has not helped matters that the minister of state for the governorates, Torhan Mufti (himself a Turkmen) has declared that the provincial powers law of 2008 does give the central government a right to change provincial boundaries. The same claim has been reiterated by a member of the parliament committee for the governorates, but neither claim has been buttressed with a reference to a specific article of the provincial powers law. It would be helpful if they (or anyone else who knows) could do so. A cursory reading of the amended law of 2008 indicates a right of governorates to change their internal boundaries (sub-provinces) in article 7-11, but where is the alleged corresponding right of parliament to change provincial boundaries?

One would have thought the US government, which was influential in Iraq at the time the provinces law was adopted in 2008, had analysed this problem. However, whereas an annotated version of the provincial powers law by USAID sounds promising, it fails to produce the required clarity. It seems to agree that there is no power for anyone to change provincial boundaries in the provinces law itself; however it does refer to the 1969 law on provincial administration as an alleged basis for parliament to change borders. There are several problems here. Footnote 32 of the American reports refers to “a power of parliament to change provincial boundaries” in law 159 of 1969. However, article 4 of the 1969 law does not mention parliament at all: Instead, it refers to the revolutionary command council. Even more importantly, as the American report itself goes on to mention, the 2008 law abrogated the 1969 law and hence took away any specific framework that may have existed in that piece of legislation for the central government to create new administrative entities.

Few believe these latest decisions will create changes on the ground in the near future. However, there is a qualitative shift in the Iraqi debate when the redrawing of provincial boundaries becomes part of the political horse trading process. Heretofore, provincial grievances have mostly been contained in the budgetary process, with a certain inflation of petrodollars and other dollars (including compensation for border provinces and provinces with pilgrimage traffic). But whereas money can be easily negotiated, the mere discussion of borders threatens to create precedents and goals that can be difficult to contain once they have been ignited. For example, the schemes for provinces in the Nineveh plains and Turkmen areas dovetail with far more ambitious schemes among Christian and Turkmen politicians to create federal regions in their own right. Another problem relates to scale. If areas the size of Falluja can have their own governorate, one would expect a degree of symmetry in the shape of a multiplication of other similarly small-scaled new governorates. Whereas the existence of micro-minorities like Turkmen, Christians and Shabak may conceivably be used as an argument for administrative separateness (advocates of their scheme refer to article 125 of the Iraqi constitution), no such argument is present in the case of Falluja. All in all, then, given the momentous implications of such vision, it seems doubly important that Iraqi politicians should be a lot clearer about the legal basis for the dramatic changes they now propose.

Posted in Iraq - regionalism - general, Iraqi constitutional issues | 7 Comments »

The Iraqi Cabinet Decides to Form Three New Governorates

Posted by Reidar Visser on Wednesday, 22 January 2014 1:44

The Iraqi cabinet made big headlines today with a shock decision to form three brand new provinces. Supposedly, there will be new governorates in Tuz Khormato (a Turkmen-dominated area currently in Salahaddin province), the Nineveh plains (a Christian-dominated part of Nineveh province) and Falluja (centre of the current Sunni-led uprising in Anbar province). With a recent decision to create Halabja as a separate governorate in Kurdistan, some observers declared that Iraq all of a sudden has 22 provinces, after decades of relative administrative stability in 18 governorates since the early 1970s.

It is not like the inhabitants of Falluja, Tuz and the Nineveh plains will feel any major changes related to administrative status when they wake up tomorrow. Some of the uncertainty regarding the new move of the Iraqi government can be glimpsed from the language of the cabinet decision itself: The agreement on the formation of these new decisions was made “in principle”, to be completed after the necessary formalities “had been completed”. Those formalities were not detailed: A special committee including members of the ministries of justice and municipalities will look into the “standards and procedures” necessary to complete the transformation.

This ambiguous choice of language in turn reflects wider legal uncertainties regarding any decision to form new provinces. In theory, despite the absence of any constitutional reference to administrative boundary changes, after 2003 such administrative changes were governed by a Baathist-era law, law no. 159 from 1969, which vested the power to change administrative boundaries in cabinet. However, the anachronistic nature of that procedure is attested to by a requirement that “the revolutionary council” approved the measure – an institution that Iraq now thankfully lacks. In any case, in 2008 a new provincial powers law specifically replaced the old provinces law (and repealed it), but it failed to make provision for new administrative boundary changes, meaning there is currently no detailed Iraqi legislation dealing with the subject of the creation of new provinces. That’s the ironic reality of the new Iraq: Whereas elaborate measures exist for the creation of new federal regions, no special provisions for the creation of new governorates exist.

Of course, the absence of a law does not necessarily mean decisions on these matters are off limits to the current Iraqi government. However, in a democracy there will be an expectation that such momentous decisions regarding the administrative structure of a country are governed by laws. Indeed, the recent Iraqi cabinet decision to transform Halabja in Kurdistan to a governorate was accompanied by comments to the effect that a law was expected to be sent to parliament for approval, the lack of relevant formal mechanisms notwithstanding. But whereas the submission to cabinet of a separate Halabja governorate project reflected longstanding internal Kurdish debate on the issue (and eventually a modicum of consensus), no such consensus is known to prevail regarding these three latest would-be provinces.

In sum, such is the uncertainty connected to today’s decision that it is tempting to view it as mainly empty rhetoric calculated to create happiness in particular political circles prior to Iraq’s 30 April parliamentary elections. The question then is what those interested political circles would be. In the case of Tuz and the Nineveh plains (Tall Kayf) one obvious answer would be minority groups in those areas that have long advocated autonomy – Turkmens and Christians respectively. Some view these projects as antidotes to Kurdish expansionism and potential annexation (either through article 140 on disputed territories or the Talabani project to change administrative boundaries back to pre-Baath conditions). It has therefore been suggested that the cabinet move today was an anti-Kurdish project, with Falluja thrown in as a new governorate simply in a rather strained attempt at mollifying Sunni Arab opinion. It would certainly look rather asymmetrical with a small Falluja governorate carved out from the vast Anbar – a hark back to the special administrative provinces seen in particularly ungovernable parts of the Ottoman Empire!

Since the early 1970s, Iraq has experienced relative stability in its administrative map with minor changes to the administrative boundaries of the 18 provinces. If actually granted governorate status, these new entities could soon apply for status as federal regions – something which the proponents of the Nineveh plains unit have long hinted at. It would open the path for similar demands from oil-rich districts in the south who have long felt marginalized within the governorates of which they currently form, including Zubayr and Qurna in Basra. If Falluja can be a governorate, why shouldn’t they claim the same status, with similar population numbers and vast energy resources?

Of course, the Maliki government is not known to be in favour of this kind of large-scale territorial fragmentation. Nonetheless, we now have yet another fictional act of state affecting centre-periphery relations in the new Iraq: The three projected new governorates come on top of a theoretical right for forming federal regions that is always rejected in practice, and a revised and very permissive law on provincial powers that  few think can work in practice.

For the time being, the Maliki government may feel safe that it can play with words in centre–periphery relations without having to face the consequences. In the long run, however, the increasing gap between rhetoric and practice – and between public expectations and the state’s capacity to deliver – may form a contributing factor to a more radical political climate in Iraq.

*Postscript: The changes above are contained in conclusion number 2 from the Iraqi cabinet meeting on 21 January. However, hidden away further down in conclusion number 4 is also mention of a law project to transform the largely Turkmen Tall Afar area of Nineveh to a governorate, and to send this law to parliament for approval. That does seem to indicate plans for altogether four new provinces. Tall Afar has apparently reached a more mature stage of progress towards governorate status. It is also clear that the Iraqi government believes it can send laws for changes of borders of individual governorates to parliament, quite without there being a more elaborate legal framework for such administrative changes in place. The cabinet can also probably rest assured that parliament is unlikely to approve these measures.

Posted in Federalism in Sunni-Majority Areas of Iraq, Iraq - regionalism - general, Iraqi constitutional issues, Kirkuk and Disputed Territories, Uncategorized | Comments Off

After the Passage of Changes to the Iraqi Electoral System, Uncertainty about Their Legal Status

Posted by Reidar Visser on Monday, 11 November 2013 18:33

Ever since the Iraqi parliament passed changes to the Iraqi electoral system on 4 November, doubt regarding the exact status of the action by parliament has lingered. In theory, the legal uncertainties concerning the nature of the piece of legislation passed by the government are such that parliamentary elections – now scheduled for late April 2014 – may be postponed or even canceled in a worst case scenario.

majlis1lawfinal

A juxtaposition of two snippets from the Iraqi parliamentary website – one on the day of the passage of the changes, and another featuring the website as it is today – highlight some of these ambiguities. On the day the law was passed, parliament published a legal text with the headline “law proposal for the revision of the electoral law no. 16 of 2005”. Conversely, today the headline for the same law simply reads, “election law for the Iraqi national assembly”. The more recent version of the document  is helpful in sorting out some contradictions that were present on the day the law was issued. In particular, it seemed strange to call the legislative act an amendment of the existing law, since article no. 47 of the newly passed piece of legislation specifically abrogated the law from 2005! But whereas semantics may be to blame in that respect, the distinction between a “law proposal” and a standard law is not so easily resolved. That is so because over the past couple of years, the Iraqi supreme court has developed something of a pet issue regarding the exclusive right of the executive power in Iraq – the cabinet and the president – to introduce legislative projects to parliament. An independent right of parliament to initiate legislation is not recognized,  and the court has consistently struck down as unconstitutional all “law proposals” that have been brought to its attention,  always citing article 60 of the Iraqi constitution.

It seems clear from all accounts that the new Iraqi electoral law that was passed last week was indeed a mere “proposal”. It reportedly originated from the legal committee in parliament. As such, it has not passed through the executive power, and it would be perfectly analogous and compatible with past precedent to have the law struck down as unconstitutional by the supreme court if anyone complained.

Crucially, such a formal complaint now reportedly exists. It has been reported that an exiled Iraqi  named Ayyad al-Bazi has submitted a complaint to the supreme court, precisely on the grounds that the new law is a mere proposal and therefore unconstitutional according to the court’s own jurisprudence.

Remarkably, at the same time, all major Iraqi parties insist they are looking ahead to elections in April next year. The State of Law bloc of Prime Minister Nuri al-Maliki has said it was against the removal of the “largest remainder” method for calculating seats, but did not press the issue. For their part, the optics of the rapidly changing drafts of the law proposal seem to tell a story about quite intense horse-trading behind the scenes. First, of course, during the revision of the local election law in late 2012, it was thought the standard Sainte Lague method would offer the enhanced proportionality demanded by the supreme court after its review of the original election law from 2005. Then, in a draft for the changes to the general elections law published by Al-Mada in July, the D’Hondt proportional formula, which is slightly more beneficial to bigger parties, was used. Finally, all of a sudden, a so-called modified version of Sainte Lague was inserted in the law passed last week. “Modified Sainte Lague “ is already in use in several democracies including Norway and Sweden, with the first divisor of the votes aggregated by each party seat at 1.4. This gives bigger parties more advantages than a pure St. Lague would give (as in the Iraqi local elections law). Notice, though, that Iraq has created its own version of modified St. Lague, with the first divisor raised from 1.4 to 1.6, giving even more to the larger parties. (Also, unlike for example Norway, there are no longer any compensation seats at the national level in Iraq to reduce disproportionality.) This all smacks of a bazaar logic, and one cannot help wondering whether some of it represents a concession to Maliki, who was deeply unhappy with St. Lague in the local elections law.

Lijphard

One must also wonder how the Iraqi communist party, who started the drive towards a more proportional system through a complaint to the supreme court, feels about all this. There has been much confusion about the new changes, with some alarmist reports out of the United States suggesting that the threshold for representation has gone up dramatically. This is not the case: There is no longer any  “electoral divider” (qasim intikhabi) by which total votes are divided by seats available in each governorate to set an official cut-off point for representation. That was an aspect of the largest remainder method that no longer comes into play. However, simulations of the 2010 results strongly suggest that the communist party would remain unrepresented under the new system as well. Indeed, Arend Lijphart,  an internationally recognized expert on democratic theory and electoral systems, considers modified Sainte Lague with a divisor 0f 1,4 less proportional than largest remainder, meaning that Iraq with its even bigger divisor of 1.6 has moved even further away from the proportionality of the original system.

The communist party could thus legitimately complain to the supreme court again, since the new legislation has done little to address their claims and possibly has made for a worse situation from the proportionality point of view. Rather than changing the formula, the key to better proportionality would probably be either more national seats or a single constituency – the latter is mostly rejected by Iraqi parties because of its other disadvantages. In any case, now that Mr. Ayyad al-Bazi’s appeal has been lodged with the federal supreme court, something is there that can potentially be used to cancel or delay the elections, or be used as a means of pressure by those who are less eager to hold elections than others. On the surface, then, Iraq seems on track to polling in late April, with a deadline for political entity registration set for next week. Once more, though, Iraq’s supreme court could become embroiled in politics, and its track record of staying above Iraqi factionalism has not been a terribly good one during the past few years.

Posted in Iraq parliamentary elections 2014, Iraqi constitutional issues, Uncategorized | 1 Comment »

Preparing for the 2014 Elections: Iraqi Parliament to Resume Debate on Changes to the Electoral Law

Posted by Reidar Visser on Saturday, 19 October 2013 9:52

It’s almost four years since Iraq’s general elections of 2010 and new elections are scheduled for early 2014. Iraq wouldn’t be Iraq if there wasn’t some kind of problem on the political horizon, and this time it consists of changes to the electoral law that need to be done in time in order that the electoral commission (IHEC) can starts its technical preparations for the ballot. The Iraqi parliament has given itself until 30 October to adopt the changes, and the debate is scheduled to start this coming week of 21 October.

The immediate reason there has to be changes to the election law is simple. A federal supreme court ruling from June 2010 decided that the current system of seat distribution using the largest remainder principle in a proportional system of 18 multi-member constituencies was “unconstitutional” and that a more proportional system would need to be adopted. In line with this, the Iraqi parliament made changes to the local elections law before the provincial elections earlier this year, by introducing the Sainte Lague method for distributing seats.

The reason the current law was deemed unconstitutional was that its use of the largest remainder principle was found by the supreme court to be in conflict with one of the basic axioms of the Iraqi constitution, which says that no law that contradicts the principles of democracy can be adopted. This conclusion by the court is both esoteric and astonishing. In what amounted to a mutual ball-gag between the Shiite Islamists and Kurds that crafted the new Iraqi constitution in 2005, “principles of democracy” as well as the “basic tenets of Islam” were given status as the unalienable main points of reference for all Iraqi legislation. This arrangement was useful there and then since the political process got moving (and quite a few American academics waxed lyrical about it); however, it was probably never intended to be taken very literally given the abstract nature of the concepts referred to. And it seems truly wild for the supreme court to extrapolate from the very general “principles of democracy” – whatever those may be – to a level of detail where it is suggested that the Sainte Lague method for distributing seats is somehow “democratic” whereas the largest remainder method isn’t. One can only wonder what the Iraqi supreme court members think of such abhorrent practices as those found in countries with a Westminster-inspired model of politics where winners typically take all in single-seat constituencies, and where the gap between the popular vote and the levels of party representation in national assemblies can be quite enormous as a consequence.

So far, it is mainly the State of Law coalition of Prime Minister Nuri al-Maliki that has voiced a bit of scepticism to the proposed change – it lost a considerable number of seats in the last provincial elections and at least some of them can be attributed to the new distribution mechanism. Most other Iraqi politicians seem to be happy with the change from largest remainder to Sainte Lague as such, and could in theory adopt that change without needing Maliki’s votes.

Unsurprisingly, however, once the election-law can had been opened earlier this year, other worms came out as well, with interested parties soon showing enthusiasm for more wide-ranging changes that have complicated the discussion of the election law changes in parliament. In particular, this relates to the Kurdish desire to go back to a single, nationwide electoral constituency, as was practised in the elections to the constituent assembly in January 2005. Whereas that kind of move could perhaps be seen as a logical continuation of the supreme court’s insistence on hyper-proportionality, it is also the case that this kind of electoral system was widely discredited as one of the main factors behind the ethno-sectarian voting patterns seen in the first Iraqi elections. Besides, if carried out with reference to the “principles of democracy” it would also imply that Israel, the Netherlands and Slovakia are among the the only incarnations of true democracy with their past and present examples of nationwide constituencies!

The Kurdish goal is obviously to pick up minority Kurdish votes in places where they are unlikely to win seats in other ways, especially in Baghdad. The small Iraqi communist party, which has limited numbers of enthusiastic adherents spread across the country is also in favour of this kind of arrangement – it was them who brought the initial challenge to the current system before the supreme court in 2010. In an interesting reflection of the unpopularity of the single constituency outside the Kurdish camp, the secular but increasingly Sunni-dominated Iraqiyya has voiced opposition to the Kurdish proposal. That is noteworthy since Iraqiyya might well have gained something from a more proportional system in which they could pick up a little bit more points from scattered Sunni and secular minorities south of Baghdad.

If that wasn’t enough, though, other problems are lurking too. Back in 2009 there was a huge debate about special arrangements for the disputed city of Kirkuk. Eventually, a highly theoretical method for scrutinizing the result was adopted, but it was never put into practice because the contesting parties – Kurds and Iraqiyya – seemed happy with the outcome (it was the Iraqiyya camp that had introduced the idea of a special status for Kirkuk as it was assumed the Kurds would dominate the process there). However, the issue could easily come up again, possibly in combination with the other contentious issue of minority seats, if the conflict over other parts of the election law persists.

Iraqiyya and the Shiite Islamists have enough votes to trump the Kurds on constituency size unless they start quarreling internally over Sainte Lague versus the largest remainder distribution mechanism. Another question is to what extent the regional sectarian climate will influence the Iraqi decision on these matters. Lately, events in Syria have brought Iraq’s Shiite Islamists and Kurds closer together again, presenting them with a considerable dilemma and the prospect of regional side effects from any major quarrel in the Iraqi parliament. The president of the Kurdish federal region, Masud Barzani, has already threatened to boycott the next parliamentary elections if Kurdish interests aren’t safeguarded in the electoral arrangements. Barzani is himself under pressure because of his loyalties to Turkey (which supports the Syrian opposition) and his relations to other Iraqi Kurds (some of whom are more favourably inclined towards the Assad regime). Hopefully, though, Iraqis will use the election law debate as a means to build political bridges domestically instead of importing ever more problems from abroad.

Posted in Iraq parliamentary elections 2014, Iraqi constitutional issues | 2 Comments »

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.

Posted in Iraqi constitutional issues, Uncategorized | 19 Comments »

The Iraqi Prosecutor General Asks the Iraqi Parliament to Replace President Talabani

Posted by Reidar Visser on Monday, 13 May 2013 16:03

Much more will likely be written about this in coming days and weeks, but it is already now worth taking note of a letter sent from the Iraqi prosecutor general to the presidency of the Iraqi parliament, asking them to replace Iraq’s current president Jalal Talabani due to his prolonged absence for health reasons.

The letter was first reported by media leaks, but it is now published on the website of the Iraqi judiciary, meaning it is definitely official and enjoys the support of the judiciary as an institution.

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The question of when, during a period of prolonged absence, the Iraqi president needs to be replaced is not well defined by the Iraqi constitution. Nor is there bylaws for the presidency that govern this question. The major issue concerns interpretation of article 72, which says a new president must be elected if the incumbent president “vacates” his post for any reason.

The question then is, who should decide that the president’s absence is so prolonged that it satisfies the criteria for replacement as per article 72? The Iraqi judiciary today gives us the answer by referring to article 1 of the law of the state prosecution service, dating from the Baath era. That law, slightly amended in 2006,  gives the prosecution service the job of defending the order of the state, and it is presumably in such a capacity it now deems itself capable of intervening.

This latest step by the Iraqi judiciary raises the question of whether replacing Talabani may finally have received the support of Prime Minister Nuri al-Maliki, who has seen Talabani as a friend among the Kurds, and whose own political ally  Khudayr al-Khuzaie has effectively controlled the presidency in the absence of Talabani and with the other vice-presidents either resigned (Abd al-Mahdi) or in exile (Hashemi).

Barham Saleh, also from Talabani’s PUK,  is reported as a possible replacement candidate. The Iraqi parliament will vote on a replacement; the aim is a two-thirds majority but if no one reaches that level, a simple-majority run-off vote will be held.

Posted in Iraqi constitutional issues, Uncategorized | 11 Comments »

New Law Limits the Terms of Iraq’s Prime Minister

Posted by Reidar Visser on Sunday, 27 January 2013 9:26

A couple of points regarding the law on term limits for the “three presidencies” passed by the Iraqi parliament on Saturday.

  • The law limits the three presidencies (president proper, speaker of parliament and prime minister) to two terms, whether successive or not.
  • Whereas a limitation on the presidency to two terms is prescribed in the Iraqi constitution for the presidency proper, no such restriction appears with regard to the premiership. Maliki supporters is calling the law unconstitutional for this reason. It may be more correct to see the law as “extra-constitutional” (since the constitution is mute) but that does not mean the supreme court will not find problems with it.
  • Another noteworthy problem is that the law is a “proposed law” rather than a legislative project. In 2010, the Iraqi supreme court struck down another such “proposed law”, arguing that parliament had no right to initiate legislation other than making a proposal that would then have to pass through parliament. The supreme court may opt to strike down the bill simply for that reason.
  • Note that rejection of the bill is not automatic: It must be specifically challenged before the supreme court. Maliki will probably lose no time in doing so, but it should be added that at least a couple of dozens of “proposals” have indeed been passed into law apparently without such challenges over the past few years, and quite a few others are on their way. The sheer volume of this legislative action suggests the Iraqi supreme court may gradually find it harder and harder to defend what is arguably a somewhat contrived ruling.
  • It is noteworthy, too, that the law shows the Iraqi parliament can be effective when it wants. The bill was introduced, read and passed all in the single month of January.
  • The bill passed with 170 votes. That’s of course more than the magical 163 threshold that was not achieved when the sacking of Maliki was on the agenda last spring. Nonetheless, the bill is so clearly directed against Maliki personally that it should be taken to mean any other vote in parliament other than a non-confidence motion is potentially problematic to him. Maliki may hide behind supreme court activism that effectively confines the ability of parliament to legislate introduce bills or hold ministers accountable for the purpose of sacking them. But he needs to get a budget passed and handle acute tensions with the Kurdish federal government, some of which require legislative agreement. Maliki cannot survive merely on the basis of an amenable judiciary and populist gestures of an increasingly sectarian nature.

Posted in Iraqi constitutional issues | 6 Comments »

The Iraqi Parliament Moves against Maliki on Several Fronts

Posted by Reidar Visser on Tuesday, 15 January 2013 12:11

Reports out of the Iraqi parliament are getting more and more extraordinary. The summary of events relating to its session on Monday is no exception.

Among the items on the agenda that were taken up for debate was nothing less than the “questioning of the minister of sports in absentia”. The sports minister, a Turkmen Shia Islamist and an ally of Prime Minister Nuri al-Maliki, has been accused of misconduct relating to the affairs of his ministry, including a major sports city project. The questioning went ahead headed by a Sadrist, whereas Maliki’s minister of parliamentary affairs called for legal procedures before the federal supreme court (relating to recent limitations on the rights of parliament to question ministers) to run their course before any questioning.

In another challenge to Maliki, a second reading for a bill intended to limit the terms of the “three presidencies”(i.e. the president of the republic, the “president of the cabinet” which is Arabic for the prime minister, and “the president of the national assembly”, i.e. the parliament speaker). The move, initiated with a first reading just a week ago, is seen as an obvious attempt to curb Maliki’s ambitions for a third term. It is noteworthy that whereas term limits for the president of the republic exist in the constitution, there is nothing in the Iraqi charter that prevents a prime minister for continuing for unlimited periods as long as he wins parliamentary support to accede to the position each time. Maliki allies have pointed out this, and claim that any attempt to impose limits without fixing the constitution itself (that requires supermajorities) would be unconstitutional. It is also unclear how the federal supreme court would deal with any passage of the law since it is a mere “proposal” rather than a cabinet-sponsored “project”, a legal distinction that limits the possibilities for the Iraqi parliament to initiate legislation.

Finally, Parliament Speaker Usama al-Nujayfi formally communicated a decision by the presidency of the parliament to withhold the voting rights of Maliki ally Hanan al-Fatlawi until she has apologized formally to Nujayfi for insults thrown at him. It is noteworthy that the parliament presidency is dominated by Nujayfi (Iraqiyya) and his two deputies – a Kurd and a Sadrist. In the case of Fatlawi, at least, these forces are standing firm against Maliki, and it will be interesting to see whether Maliki will use the upcoming annual budget law to expand his parliament support base somewhat, or whether he will persevere with his current strategy of a de facto minority government as the local elections of 20 April come closer.

Posted in Iraqi constitutional issues, Uncategorized | 1 Comment »

Provincial Elections Law Revisions in Iraq

Posted by Reidar Visser on Thursday, 2 August 2012 8:43

At a time when most Iraqi politicians seem to consider the cabinet crisis to be over,  attention is increasingly turning to the next local elections, scheduled for early 2013. More and more, it is being suggested that major political reform may well end up on the back burner again, with a decision on the electoral commission composition perhaps the most prominent issue of the day (it is also on the agenda as parliament meets today).

Yesterday finally saw a vote on revisions to the provincial electoral law that originally dates back to 2008. Symptomatically, perhaps, the revisions have yet to be published on the parliament website! But at least some features are known from press reports.

The problem with the revised law is that the Iraqi supreme court has already deemed it unconstitutional, at least if press reports about the contents are true. This is so because the revised law reportedly keeps the principle of allotting surplus seats to winning parties only, using the largest remainder principle. In 2010, the supreme court, based on a request from the small communist party, specifically ruled this arrangement “undemocratic” (and therefore unconstitutional), and demanded change to a more proportional allocation formula. Apparently, this aspect – which after all was one of the main reasons there was a need to change the law in the first place – was conveniently forgotten by Iraqi politicians yesterday. In other words, once more Iraq is saddled with a law that will be unconstitutional from the get-go.

Other reported changes concern the allotment of additional minority seats for Fayli Kurds and Turkmens (the latter reportedly in Baghdad). Again, this may be indicative of a trend in Iraqi politics. The previous iteration of the law only gave true micro-minorities (Yazidis, Christians, Shabak etc.) seats in particular governorates, whereas medium-sized minorities like the Turkmens and the Fayli Kurds were left with the option of mobilizing within the framework of the ideologically defined (non-ethnic) parties. Inevitably, one gets the impression that the more Iraqis are encouraged to vote in closed ethnic constituencies, the smaller the prospect for the development of a truly national political fabric. With recent moves to expand the size of the electoral commission, it is conceivable that this trend will only continue to grow further.

Meanwhile, one interesting aspect of the decision yesterday on electoral law changes is the political dynamic. It was reportedly a deal between the two biggest coalitions, Iraqiyya and State of Law, that led to agreement. These two groups will both benefit from maintaining the current, largest-remainder for winning blocs principle regarding the “surplus” seats. For their part, Shiite parties outside Prime Minister Maliki’s bloc like Fadila and the Sadrists have already been prominent in criticizing yesterday’s parliament decision. A major elephant in the room, of course, was the disputed city of Kirkuk, which never held elections in 2009, and where the issue of ethnic quota seats remains a big problem.

This is an ironic reminder, then, about how State of Law and Iraqiyya could have got things done in parliament if their leaders could just hate each other a little less. Symptomatically, perhaps, when the two finally did vote together in parliament, it was on an issue that is likely to maximize their own powers in the crudest sense imaginable, at the expense of the smaller forces in Iraqi politics.

Posted in Iraq local elections 2013, Iraqi constitutional issues | 4 Comments »

The Syrian Crisis and Its Repercussions for Erbil-Baghdad Relations

Posted by Reidar Visser on Monday, 30 July 2012 9:51

One of the interesting aspects of the crisis in Syria is the way Syria’s Kurds are navigating between regional power brokers in Turkey, Iraqi Kurdistan and Iraq. In particular, there seems to be a degree of tension surrounding the relationship between the largely pro-Turkish regional government of the Iraqi Kurds and Syrian Kurds who are seeking the support of Erbil but are not necessarily quite so supportive of Turkey.

So far, no decisive policy seems to have emerged among Syria’s Kurds in this respect. As for the spillover impact on the Iraqi scene, the Syrian crisis has so far served to further strain relations between the Iraqi Kurds and the central government in Baghdad. Due to tension in border areas with Syria, central government Iraqi forces have been seeking access to areas controlled by the Kurds, and this, in turn, has aggravated the conflict between Erbil and Baghdad.

For the first time, the Kurdish peshmerga ministry has now published a constitutional defence of its position. In a letter directed to Prime Minister Nuri al-Maliki, the Kurds enumerate four constitutional articles that they consider Baghdad are violating when they are seeking access to the Kurdish areas: Articles 9, 61, 111 (some sources say 11 but that makes no sense) and 121.

Article 9 of the Iraqi constitution deals with the Iraqi army. It is one of the few constitutional provisions to specifically demand proportional representation on an ethno-sectarian basis (quotas), and this is conceivably what the Kurds are complaining about, even though there are large numbers of Kurds serving in the Iraqi army controlled by Baghdad.

Article 61 deals with parliamentary powers, and presumably the Kurdish objection relates to the failure of government to have leading military officials confirmed by parliament. This is a real problem, although there are reports that the government has lately sent a list to parliament which is now awaiting approval.

Article 111, if correctly cited, deals with oil ownership (“Iraqi oil belongs to the Iraqi people in all the governorates and regions”)  and is presumably a general criticism of Baghdad regarding the longstanding dispute about whether Erbil or Baghdad should conclude deals with foreign oil companies.

Article 121 specifically gives federal regions the right to organize internal security including “guards of the region” which is commonly seen as the standard reference to the Kurdish peshmerga militia which is now the official internal army of the Kurdish region.

All in all, whereas it seems clear that the central government may need to make some improvements as regards Kurdish representation in the Iraqi army (article 9) and getting parliamentary approval of army officials (article 61), it is hard to see how article 121 could override the exclusive prerogative of Baghdad when it comes to managing national security and external defence  as set out in article 110-2, where “borders” are specifically mentioned. Indeed, article 121 itself at the outset explicitly stipulates that the powers given to the region should not usurp exclusive prerogatives of the central government as specified in article 110.

What this whole issue brings to the forefront, of course, is that whereas Iraq on paper may be a federation, it is in practice a confederacy in which the Kurdish entity appears to be torn between seeking independence and de facto Turkish overlordship. The Syrian crisis is likely to make these tensions more acute, given the apparent greater scepticism of the Syrian Kurds when it comes to accepting the idea of a substantial role for Turkey in deciding their destiny. As a consequence, it is possible that the autonomous Iraqi Kurds, too, will finally have to be more specific and concrete about where exactly they are heading and when.

Posted in Iraq international relations, Iraqi constitutional issues, Kirkuk and Disputed Territories, Oil in Iraq | 14 Comments »

 
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