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Archive for the ‘Iraqi constitutional issues’ Category

Maliki, the Presidency, and Parliament in the Iraq PM Nomination Battle

Posted by Reidar Visser on Tuesday, 5 August 2014 17:06

The Iraqi parliament met briefly today. Since the parliament website remains offline, knowledge of the proceedings is a bit sketchy but it is being reported in media that 245 (out of 328) MPs debated the unfolding ISIS advance in the north as well as the election of new permanent parliamentary committees.

Perhaps more crucial than the actual session was what was being said by leading political figures before the meeting commenced, and how it was reported in Iraqi media. In particular, from reading Iraqi newswires  one could get the impression that momentum was building towards some sort of crucial step regarding the naming of the next PM nominee, or at least defining which political bloc constitutes the largest one in parliament, with a right to have their candidate for PM nominated.

The underlying political dynamic in this seems clear. On the one hand, those who reject a third term for Maliki are trying to induce some sort of parliament action. A particularly interesting aspect of the ongoing maneouvering is the prominent role of former PM Jaafari who during the course of 24 hours during the weekend met with an impressive array of leaders outside his Shiite alliance, including most prominently President Fuad Masum plus Sunni leaders like Saleh al-Mutlak and leaders of the secular Iraq coalition like Qutayba al-Jibburi. It seems clear that Jaafari is now openly challenging Maliki and is trying to use forces outside the Shiite alliance to tip the balance.

On the other hand, Maliki’s supporters are apparently hunkering down, pointing to the closing window of the constitutional timeline for nominating the PM, whose deadline expires some time next week regardless of how holidays and Fridays are counted.

In all of this, it has to be said that Maliki has the Iraqi constitution on his side. It simply isn’t the business of parliament to opine on the biggest bloc, and certainly not to engage in formally naming one (tasmiya) as was reportedly attempted by some blocs today. In fact, no one is going to name the biggest bloc per se. Parliament can name the biggest bloc, the most beautiful bloc or the fiercest bloc for that matter but it would all be singularly irrelevant to the PM nomination process. The only naming that comes into play is that relating to the person of the PM nominee of the biggest bloc, and it is the job of the Iraqi president – some would say, one of the few real jobs of that position – to do that. President Fuad Masum’s reported complaints about “political pressure” to decide on a PM nominee cannot produce much sympathy since that’s an inconvenience that comes with his prestigious job!

Another parliament meeting is called for Thursday, the day before the formal deadline for naming the PM expires. Hopefully, parliament will not engage in more interventions in a matter which is simply beyond its constitutional jurisdiction. Naming the Iraqi PM nominee is not an act of parliament but a presidential prerogative. Any parliamentary action in the matter would be for purposes of public information about the presidential decision only.

Posted in Iraqi constitutional issues | 1 Comment »

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.

Posted in Iraqi constitutional issues | 16 Comments »

Iraq’s Shiite Alliance Wavering in the Question of the Parliament Speakership

Posted by Reidar Visser on Monday, 14 July 2014 22:15

The new Iraqi parliament met briefly on Sunday and failed to make much progress apart from agreeing to meet again on Tuesday.

One interesting aspect of the proceedings that has failed to receive much attention concerns the stance of the pan-Shiite alliance on the issue of electing a speaker before a comprehensive agreement including the positions of president and prime minister has been reached. The Iraqi constitution envisages this kind of sequenced and piecemeal approach (instead of the package deals that were done in 2006 and 2010), and for the first time in Iraqi post-2003 history, there has this year been a degree of actual support for this kind of approach – from Iraqi voices and players in the international community alike. At least some members of the pan-Shiite alliance have also highlighted this possibility, probably fully aware that if they stayed unified, the Shiites in theory have enough votes (more than an absolute majority of 165 deputies) to impose whatever speaker they would like to have.

Interestingly, though, the Shiite bloc has refrained from pushing through any particular speaker candidate to enable a separate speaker vote. Indeed it has been reported that it was members of the Shiite alliance that played a role in having the parliament session on Sunday adjourned following failure to arrive at a more comprehensive agreement on the other leadership posts. This apparent reluctance to go ahead with the speaker election is interesting since it breaks with the trends of majoritarianism sometimes evident in the Shiite alliance (and especially in the State of Law bloc of Prime Minister Nuri al-Maliki). Instead, there have been some rather contrived suggestions by members of the Shiite alliance to impose particular conditions for the selection of the speaker. In one version, Maliki’s legal adviser Tareq Harb suggested that a speaker could be elected “from the smaller lists and temporarily”. How, one wonders, can Harb see this to resonate with his avowed orthodox approach to the Iraqi constitution? Then on Sunday, Hanan al-Fatlawi, another Maliki ally, suggested the speaker could be elected from among some of the tiny religious-minority lists in the Iraqi parliament (such as various Christian lists, Shabak and Sabaeans).

What this all suggests is that the Shiite alliance remains worried about giving away the speaker seat to a Sunni whom they don’t fully trust – Salim al-Jibburi (from the Iraqi Islamic Party in Diyala) having been the most prominent candidate so far. This in turn relates to a broader contradiction between majoritarianism and consensus models that continues to afflict the Shiite alliance. It goes back at least to the spring of 2011, when, after having sometimes promoted majoritarianism in the preceding period, the State of Law coalition pathetically demanded the creation of a third vice-presidency to make sure they had a say even within that minor office. Despite all the persisting talk of “political majority”, it seems the Shiite alliance has lately been fully preoccupied with dividing the spoils of the elections in the traditional way – with heated discussions about who should be the Shiite deputy speaker (Humam Hamudi of ISCI is a forerunner) and who should be the Shiite deputy president (it seems this may go to a Sadrist).

In all of this it is worth noting that despite weather problems (that some suggested dovetailed rather conveniently with Kurdish threats to boycott the Iraqi parliament), the short session on Sunday was actually rather well attended. Press reports talked about 225-235 (out of 328) deputies present, but the official parliament record says 270 which is very high compared with averages from the previous parliamentary cycle. What this means is that there are more than enough deputies present to complete a vote on a speaker, which requires an absolute majority. Maybe Iraqi politicians should now try to liberate themselves from past practices and just go ahead with the speaker vote, as indeed the Iraqi constitution stipulates? Such a move might in itself potentially produce new dynamics and alliances that are capable of affecting the current deadlock in the key question of who should be the next Iraqi prime minister.

Posted in Iraq parliamentary elections 2014, Iraqi constitutional issues, UIA dynamics | 4 Comments »

Nuri the Terrible and George W. the Clueless: American Portraits and Self-Portraits in Iraq

Posted by Reidar Visser on Thursday, 24 April 2014 23:55

It is great to finally see something of a revival of the genre of Americans commenting on Iraqi affairs. The first years since the withdrawal in 2011 were characterised by an apparent urge to forget as much as possible, but the upcoming 30 April parliament elections in Iraq – the first democratic contest in the post-2003 era to be carried out without any form of direct American supervision – has also inspired a good deal of fresh commentary on Iraq by American writers.

Among the more prominent pieces in this wave of Iraq writings is an article titled “What We Left Behind” by Dexter Filkins that has just been published in The New Yorker.

Filkins might as well have named his piece “Who We Left Behind”, because this is mostly about the personality of Prime Minister Nuri al-Maliki. As such, it is an important contribution in many ways. Filkins patches together many useful and sometimes previously unpublished anecdotes that contribute to a fuller picture of Maliki than seen in English previously. Among them are the story of an alleged conversation between Maliki and US diplomat Zad Khalilzad that supposedly was decisive in the emergence of Maliki as the premier candidate of the Shiite bloc in 2006; Maliki’s admiration for General Qasem (the coup leader of 1958) as conveyed in private conversation with former US ambassador Ryan Crocker; vivid portrayals of exchanges between Maliki and Crocker at the time of Maliki’s Charge of the Knights operation in Basra in 2008; comments by Maliki on his relations with some of the key Iranian operators in Iraq, including Abu Mahdi al-Muhandis; as well as Maliki’s take on accusations directed at his own son Ahmed, who is often accused of building a powerbase for himself. There is also some fascinating detail on the new social geography of the Green Zone, where notorious anti-American figures like Qays al-Khazali of the pro-Iranian Asaeb Ahl al-Haqq now live in sumptuous surroundings.

Here are important insights in US policy-making and thinking, too. There is a priceless snapshot of a conversation between Brett McGurk (at the time at the NSA) and President George W. Bush concerning a map of the Basra battlespace at the time of Maliki’s operations against the Sadrists in 2008. There are details about frustration in the US embassy in Baghdad following the settlement of the second Maliki term basically at the behest of Iran in autumn 2010, with at least one high-ranking official reportedly resigning because of the perceived stand-down in the face of Iranian hegemony. And there are glimpses of the frustration felt by US diplomats during the course of 2011, when possibilities for negotiations about a prolonged, reduced US troop presence in Iraq evidently existed but when the White House simply just couldn’t make up its mind. Perhaps most fascinating, though, are comments by Lieutenant Michael Barbero which reveal that at least until January 2011, the US allegedly threatened Maliki with military resistance if he moved towards the disputed areas with the Kurds. Barbero apparently wished that US troops should continue to serve in this kind of peacekeeping role in infinity.

However, despite the impressive list of people interviewed for the Filkins article, there are also aspects of it that inspire distrust. For starters, in his introduction, Filkins finds it noteworthy that a “long-time associate” of Maliki maintains that the Iraqi PM “never smiles”. This assertion can be easily falsified by a simple Google Image search, and one assumes the longstanding Maliki associate is talking to Filkins because he is not any longer such a close associate and that maybe that, in turn, may explain the perceived absence of smiles.

And there are inaccuracies relating to far more important matters than body language here. In his description of the 2010 government formation process, Filkins asserts that the Iraqi federal supreme court ruling that formally enabled post-election coalition forming “directly contradicted the Iraqi constitution”. This is just untrue. The problem is that the Iraqi constitution is mute when it comes to the relationship between electoral lists and parliamentary blocs. It just says the biggest parliamentary bloc will nominate the premier, and the supreme court simply repeated that sentence, with the addition that pre-election and post-election formation should be considered on an equal footing. Filkins refers to minutes from the constitutional negotiations, but the only thing that has been published by Maliki’s critics from those negotiations is in fact inconclusive as regards the intent of the framers on government formation.

Also other comments on legal affairs sow doubts about the overall reliability of the article. Filkins claimed that Maliki has “secured a decision from the Iraqi High Court that gave him the exclusive right to draft legislation”. Again, this is incorrect. What the supreme court has done, since before 2010, is to assert an orthodox interpretation of the Iraqi constitution which stipulates that legislation can be introduced by cabinet or the president. In other words, the Iraqi constitution does not seem to give the Iraqi parliament the right to initiate legislation on its own without going through cabinet. This is unusual in comparative perspective but nor unheard of, and in any case the ruling certainly did not bestow any particular privileges upon Maliki personally with respect to legislative powers.

Beyond the general leitmotif of Maliki as a horrible autocrat, Filkins also portrays him as the diehard enemy of Sunni Arabs, as a community. Following the standoff at the Ramadi protest camp in 2013, Filkins claims that “the rest of Sunni Iraq erupted”. Whatever security can be found in Baghdad is attributed to the physical separation between the two sects after sectarian displacement in 2005-2007. Filkins repeatedly cites American favourite Adel Abd al-Mahdi for his criticism of Maliki’s alleged wholesale marginalization of Sunnis and Kurds. At one point Filkins claims that Maliki “set out to banish every trace of Sunni influence from the bureaucracy”.

What is lacking in this account is some mention of key Sunnis that Maliki continues to rely on. Just to take one example, some quite substantial “trace of Sunni influence” remains at the federal supreme court, where several Sunni judges continue to shape the rulings of the court. And what about key provincial officials in Anbar and Salahaddin with whom Maliki continues to cooperate? These are people that appear to be more eager to work with Shiite-dominated Baghdad than submerge themselves in the radical Islamism of the Islamic State of Iraq and the Levant.

Inevitably, when Filkins cannot get basic legal details right, questions emerge as to whether we can fully believe him with respect to all the other, less easily verifiable information about Maliki that he presents as facts. He paints and paints, and he asks other, mostly American, painters about their opinions. In the end, Filkins’ piece of art comes across as a self-portrait of Americans in Iraq, rather than a naturalistic image of Iraq itself.

Posted in Iraqi constitutional issues, US policy in Iraq: Leverage issues | 2 Comments »

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.

kabr

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 »

 
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