After P5 Plus 1: Time to Move on with Iraqi Politics

As expected, negotiations in Baghdad between Iran and the P5+1 (permanent five members of the UN Security Council plus Germany) on the Iranian nuclear file have ended without any major breakthrough.

For Iraq, this means the country can get back to its normal politics, perhaps without the added distractions that inevitably come with a major regional event involving Iran. There has been plenty of speculation as to the causes for the conspicuous synchronicity between the nuclear meeting and the apparent peak of the crisis of the current cabinet headed by Prime Minister Nuri al-Maliki. Has Iran somehow exploited the opportunity to send a not so gentle reminder to international players about its leverage  in Iraqi politics?

Whatever the external pressures, the Iran nuclear file has for now been consigned to Moscow as its next destination in the second half of June. Maliki no longer has any major external event that can remove attention from internal problems and threats about unseating him. And those threats are gaining momentum. On 28 April, an unprecedented gathering of leaders of the Kurds, the Sunni-secular Iraqiyya and the Shiite Islamist Sadrists issued a letter at Arbil calling for Maliki’s own Shiite alliance to make Maliki change his ways within 15 days or else take steps to withdraw confidence in him. The ultimatum wasn’t presented to the parliamentary head of the Shiite faction, Ibrahim al-Jaafari, until 3 May, meaning that it expired on 18 May. One day later,on 19 May, a second summit was held in Najaf. Barzani and Allawi did not elect to descend from their Arbilian heights but the political representation at the meeting was broadly identical to the 28 April summit. After that meeting another letter was sent to Jaafari. It contained a message to the Shia alliance that their previous (very jejune and non-committal) answer to the first ultimatum didn’t really address their concerns. Accordingly, the Arbil signatories now asked Jaafari to identify a new prime minister candidate. It is widely understood that another deadline of 1 week was imposed, although this is missing in the draft of the letter that has been published.

This takes us  on to Saturday 26 May as the new deadline for Maliki. Or, maybe we should say, “for the Arbil signatories”. Their bluff has already been called once and unless there is action this time (the second letter is more of an order than an ultimatum) doubts as to the parliamentary punch of their alliance will set in. Come Saturday and it will be crunch time. Already, there are rumours about a planned third summit of Maliki critics, this time in Mosul.

The problems are however about more than the sheer timing of the no confidence initiative. A second set of issues relates to the modalities for getting rid of Maliki envisaged in the proposal. In the leaked letter the Shia alliance is given the job of finding a suitable replacement, because “it is considered the framework for choosing the prime minister”. Not so fast, please! The constitutional problems here are perhaps best understood through a little bit of prospective history writing. If indeed the Shia alliance votes to change Maliki, it will likely break apart. Now, if all or nearly ally of Maliki’s alliance defects in solidarity with him, the rump National Alliance is no longer the biggest bloc in parliament, and hence has no right to appoint the next PM. Nor has Iraqiyya, which has already dwindled in size to 85 deputies with indications it would be further reduced to at least 75 if an attempt were made to force out Maliki. To avoid Maliki’s bloc getting hold of the nomination of the next PM, Iraqiyya would need to first form a bloc with the Kurds or the Shiite Islamists, agree on a bloc leader and so on. Incidentally, this would imply a negation of their own interpretation of article 76 of the Iraqi constitution on the prime ministerial nomination procedure (which Iraqiyya in 2010 saw as belonging to the biggest electoral list).

Also, there seems to be a prevailing theory that the current Shiite alliance can simply swap Maliki and someone more likable as premier with the rest of the cabinet remaining in place. Again, this is erroneous. Constitutionally, the whole cabinet is considered resigned if a vote of no confidence in the prime minister succeeds. Accordingly, every single member of the cabinet will have to leave their posts and it is for the Iraqi president to identify the next prime minister on the basis of the “biggest bloc”. This is what makes it so hard to understand another bargaining chip used by the opponents of Maliki these days – that of the possible resignation of the current president, Jalal Talabani of the Kurdish alliance. Such a scenario would leave the current deputy president that remains within Iraq, Khudayr al-Khuzaie, in charge for the next 30 days until parliament has elected a new president. Khuaie is a Maliki ally. Also, attention would inevitably be deflected from the prime ministerial question.

The most recent developments have seen Ahmed Chalabi assume a leading role among Shiite critics of Maliki, with frequent meetings of the original half of the Shia alliance known as the Iraqi National Alliance (INA) that was formed in August 2009 with Iranian backing. Some even consider Chalabi a forerunner for replacing Maliki! We should soon find out who they have in mind, because it will be very hard for the Maliki critics to backtrack for their latest string of ultimatums without stultifying themselves in a serious way.

The Hashemi Trial Begins amid Signs the Iraqi Constitution Is Dying

It was perhaps inevitable. An Iraqi politician would eventually declare the Interpol red flag notice for Vice President Tareq al-Hashemi “unconstitutional”.

There are many good reasons for being critical about the reasons that led to the original prosecution of Hashemi. In particular, the timing of the original Iraqi arrest warrant – just hours after the departure of the last US forces from Iraq in December 2011 – smacked of political opportunism. Subsequent allegations about mistreatment of the imprisoned guards of the Iraqi vice president have been met with unsatisfactory replies from the Iraqi judiciary that have prompted suspicion of  whitewash on more than one occasion.

However, the Interpol red flag notice is in itself not “unconstitutional”. Iraq is an Interpol member and the government has the option of turning to Interpol to request international assistance for bringing suspects to court. The built-in checks and balances in the system in this case have nothing to do with the Iraqi constitution as such but with the ability of other Interpol member countries – including Turkey, where Hashemi is currently staying – to ignore the warrant or deny extradition if they judge its basis to be unsound or the prospects of a fair trial unlikely. This is precisely what Turkey is doing.

Alas, as the trial of Hashemi finally went ahead in absentia in Baghdad today, the meaningless declaration of the Interpol red flag notice as  “unconstitutional” serves as a reminder about much deeper problems in the “new” Iraq. It doesn’t really matter who said it, Sunni, Shiite or Kurd: Today, the Iraqi constitution is merrily being violated by all sides. The term  “unconstitutional” (ghayr al-dusturi) has no real meaning anymore in Iraqi Arabic. It is simply shorthand for  “I wholeheartedly disagree with you (and, besides, I despise you)”.

There are of course numerous indications that the Iraqi judiciary is under severe political pressure from Iraqi Prime Minister Nuri al-Maliki. Over the past year or so it has produced a string of quixotic rulings and constitutional interpretations that leave doubts about its impartiality. Perhaps most noteworthy are the ruling on the independent commissions from January 2011 and the recent ruling on the right of parliament to question ministers (which, symptomatically perhaps, has yet to receive the mainstream media scrutiny it so badly deserves). Maliki’s own refusal to deal in a legal fashion with the various request for federalism referendums over the past year or so is in itself a flagrant constitutional violation – as is his consistent failure to present senior security officials for parliamentary approval.

But the critics of Maliki are not an inch better in terms of adhering to supposed constitutional ideals. With a series of extra-constitutional inventions in the Arbil agreement of 2010 – the centrepiece of their current campaign to unseat Maliki – they, too, are showing scant respect for the Iraqi constitution. In fact, their frequent assertion that they demand adherence to the Arbil agreement and the Iraqi constitution is a contradiction in terms since so much of Arbil involves upsetting the basic balance of power outlined in the constitution and as such should require a popular referendum before being implemented.

It should be added that the international contribution to this anti-constitutional trend in Iraq is generally shameful. The frantic attempts by the United States to get a government seated in 2010 brought about the unhelpful marriage between Iraqiyya and the extra-constitutional strategic policy council scheme, a key ingredient of the Arbil agreement. Similarly, the United Nations agency in Iraq recently issued an unhelpful and naive message of optimism in Iraq, narrowly focusing on security indicators while conveniently brushing obvious political problems under the carpet. Of course, the leverage of both the US and the UN is declining in Iraq as regional players are strongarming their way to fill the vacuum, but the very least they should do after having played such a dominant role since 2003 is to try to emphasize constitutional consistency as a guiding principle for handling political conflict in the country.

Finally, with respect to the green light for the Hashemi trial to go ahead today (it will continue on 20 May), a few comments are in order. Hashemi lawyers had argued that article 93-6 of the constitution gives jurisdiction to the supreme court, rather than to the criminal court, in all cases involving the presidential deputies. On this isolated issue it is possible to agree with the prosecution since said article in fact only mentions the president of the republic (rais) rather than the presidency (riyasa). Another potentially mitigating factor is that Hashemi can appeal the case until it reaches the cassation court, which was recently appointed with at least some new members who were disliked by the Maliki bloc in parliament.

Perhaps the best thing Hashemi’s allies can do going forward is to make sure their own discourse is as loyal to the Iraqi constitution as possible. This, in turn, should make it easier to win international solidarity whenever constitutional infractions become part of the political struggle in Iraq.

Iraq Gets A New De-Baathification Board but the Supreme Court Becomes a Parody

It’s an indication of why Iraq is not unraveling completely: In the midst of political crisis, the Iraqi parliament today actually managed to approve a new de-Baathification board. The decision on the issue had been stalled since 2009. After the death of former director Ali al-Lami in May 2011 an acting official close to Prime Minister Nuri al-Maliki had taken care of the de-Baathification file.

Of the seven new members who were nominated by the cabinet, two were Kurds. Those were incidentally the same Kurdish candidates that were nominated back in 2009. Today’s official parliament report mentions only one of these two and some press reports say one candidacy was withdrawn by the cabinet. Accordingly, it is quite possible only 6 members were agreed after all, which in itself is legally dubious. At any rate, two other members of the new board are close to the secular Iraqiyya party: Muzahim Darwish al-Jibburi, a former minister of state who lost his job after the cabinet was downsized last summer, and Faris Abd al-Sattar, a lawyer from Mosul who has previously worked for the Nujayfi brothers there. The remaining three commission members are connected with Shiite Islamist circles. Falah Hassan Shanshal is a Sadrist. He is considered a hardliner in de-Baathification issues and is seen as a frontrunner for the presidency of the commission. Like several other members he is a victim of the former regime in the sense that he has been previously imprisoned. Jabbar al-Muhmamadawi is also thought to have ties to the Sadrist milieu whereas Basim Muhammad al-Badri is probably linked to the Daawa.

The commission of 7 members makes its decisions with a simple majority of 4. In other words, the 3 Shiite Islamists will need at least one Kurd on their side to push through their agenda. Reflecting their electoral success in 2010, Iraqiyya is better represented than in the original commission proposed by the Maliki government in 2009. At that time, Maliki had hoped to install Walid al-Hilli, a party ally, as chief of the new commission; conversely the Daawa is less prominent in the current commission line-up. Still, the fact that the board was approved by the Iraqi cabinet suggests Maliki probably considers he can live with it.

It is reported that the vote went ahead in parliament without any major protests. (By way of contrast, Iraqiyya once more successfully obstructed the vote to sack the mayor of Baghdad of ISCI against the wishes of some Maliki allies and possibly the Sadrists as well.) The overall parliamentary attendance figure was given at 195. No split vote was reported nor were any massive walkouts mentioned.  In other words, the de-Baathification board decision does seem to be one of those rare cases in Iraqi politics where every side is satisfied. One possible interpretation of how it succeeded is that Maliki’s Daawa is apparently taking a back seat and is leaving the role of being Baathist hardliner to the Sadrists.

Today’s vote on the de-Baathification commission is interesting also as a possible harbinger of dynamics at an upcoming important vote in the Iraqi parliament: The approval of a new election commission (IHEC). Both these votes can be done legally with a simple majority. However, with respect to IHEC, Maliki is more determined to have the current board replaced since its make-up dating back to 2007 antedates his own rise to power.

Alas, there was also another possible harbinger of future trends in Iraq today. After weeks with pressure on the minister of higher education to appear before parliament for  questioning (and with an apparent ultimatum for him to do so this week) the Iraqi supreme court today produced a very timely ruling, as least as far as the minister’s point of view is concerned. In fact, the request for a constitutional clarification was dated as recently as 30 April, meaning that the court has been unusually effective. It should be added that the minister in question, Ali al-Adib, is from Maliki’s party.

Perhaps it is its effectiveness that has led to what must be described as one of its most scandalous rulings ever, perhaps second only to the Byzantine piece of jurisprudence pertaining to the independent commissions that it produced last year. Basically, the query is about the interpretation of article 61-7-c of the constitution. That article is very simple. It enables 25 deputies to request the questioning of ministers in order to “hold them accountable for matters within their specializations”, with at least seven days between the request to the actual hearing. And that is it.

But the ruling of the supreme court is far more complicated! It appears to say such requests must be accompanied by a specification of alleged constitutional and legal infractions and must define breaches and material damages in terms of criminal procedure. The court goes on to say questioning is the highest form of supervision parliament can exercise and considers it tantamount to withdrawing confidence in the minister.

The problem is, absolutely none of this can be found in the constitution. Actually, the court also refers to article 58 of the parliament bylaws, but the basis for the new interpretation just isn’t there either and the legality of those bylaws – currently under review – is disputed anyway. Certainly, most cases of Iraqi ministers being questioned in the past seven years have been void of specific accusations of criminality.

What we have here is a very clear case of the Iraqi supreme court producing a ruling that seems politically biased to the point where it apparently overrules the Iraqi constitution and the right of parliament to hold ministers accountable. Hopefully Iraqi politicians will use the specific problems at hand here – rather than the fantasies of the Arbil agreement, which in itself is full of unconstitutional and extra-constitutional ideas – to frame a reasonable debate about the independence of the Iraqi judiciary. They have got plenty of time to do so, because parliament is now on holiday until 14 June.

The 9-Point Letter from Arbil

Over the past week, much fanfare has attached to a 9-point ultimatum letter that was written by the Maliki critics convening in Arbil on 28 April (Kurdish president Masud Barzani, Ayad Allawi and Usama al-Nujayfi of Iraqiyya, Muqtada al-Sadr) and then sent to the bloc leader of the Shiite alliance, Ibrahim al-Jaafari. It has been clear for some time that the letter demanded Maliki’s adherence to the contents of the letter within 15 days or a move to sack him would be initiated in parliament. However, the 9 points themselves have not been published before they appeared in the hardcopy version of the Sabah newspaper this morning.

Unfortunately, the letter exudes the usual Iraqi grandiosity and abstraction that have also been the main weaknesses of previous “agreements”. The first two points include generalities like providing services to the Iraqi population, adherence to the constitution, striving for consensus and maintaining democracy! Which Iraqi wouldn’t subscribe to that in theory?

The third point is somewhat more specific, in that it calls for the adoption of the Arbil agreement, the 18 recent points of Muqtada al-Sadr (all of which are useless generalities except for a praiseworthy call for Iraqi support for the oppressed peoples of Bahrain and Syria alike), and, apparently added for good measure, the “memorandum of understanding which the Kurdistan Alliance presented and to which the chief of the government agreed”. The latter sounds perhaps like the Kurdish 19 points of autumn 2010 which were augmented to 25 points in bilateral dialogue with the Shiite alliance in late October that year? Maliki is supposed to have said yes to that and possibly signed as well, but this is difficult stuff that is even harder to implement than Arbil.

The fourth point of the leaked letter is a little bit more specific in that it addresses the problems of ministries governed by deputies and acting ministers. It also underlines the independent commissions and the importance of them staying independent. The electoral commission, in particular, is highlighted as an area of concern.

Alas, with the fifth point it is back to hopeless generalities. Revive the role of parliament. Yeah right. Bring it to life! Maybe that is not for the executive to take care of after all. Sixth point, unsurprisingly, bring an end to dictatorial tendencies in government, please. Seventh, avoid a politicized army and security forces.

The eighth point contains the ultimatum: Unless there is adherence (iltizam) to these principles the matter will be left in the hands of the Shia alliance to initiate a move to withdraw confidence in the government and form a new one – a “real partnership government”. Oh, and just one more: Ninth, the premiership will be limited to two terms to secure peaceful transfer of power and democracy and avoid dictatorship. Just an afterthought, apparently.

In a way, the hapless language of the letter rescues Maliki and the Arbil conventioneers alike. What is demanded, after all, is “adherence” not “implementation”. Probably the safest thing for Maliki is to make that declaration before 13 May. “I adhere”. He will probably add, as long as everything is within the constitution. Most of it isn’t, of course, and actually requires several years of special majority votes in parliament, popular referendums and possibly supreme court reviews. But that is a different story. It is one that was conveniently forgotten at Arbil in 2010 and it can be forgotten again.

Both sides will declare victory; Maliki will remain premier as long as the Sadrists don’t get even more exasperated than they already are. Perhaps the one remaining hope now relates to the electoral commission: Maliki is unhappy with the current one and needs a new one. That can only happen via a majority vote in parliament. Maybe that – more than letters from Arbil – can serve as an effective reminder that he also sometimes needs to broaden his alliance beyond its current state.

Parts of the Arbil Agreement Are Published: So What?

As if any reminders were needed, the leak of some outstanding issues related to the Arbil agreement over the weekend only served to underline the essentially utopian and completely unimplementable character of that whole concord. The published list is not an “agreement” at all; rather it is a schedule of legislative priorities that includes several items seen as particularly difficult, including the law on the supreme court which constitutionally requires a two-thirds majority. Also, it should of course be emphasized that the released points are not the full Arbil agreement, which also includes a more limited trilateral document which is the only thing signed by PM Maliki, Allawi of Iraqiyya and the KRG’s Barzani (and which among other things deals with the intention of establishing a strategic policy council).

Only emphasizing the amateurishness of the whole thing, some points released from the Arbil agreement amount to de facto rewriting the Iraqi constitution. This includes the ridiculous “consensus” file, which stipulates 100% consensus for certain “fateful” issues including constitutional reform. Never mind that constitutional procedures with lower thresholds are already in place. Another dubious item that comes to light is the concept of “constitutional balance” (tawazun dusturi) – code for ethno-sectarian quotas and supposedly to be implemented for such positions as deputy ministers, ambassadors and governmental commissions. In fact, the Iraqi constitution merely stipulates such quotas for the armed forces/security forces and the constitutional review committee. The only other constitutional balance requirement is in article 105 and relates to the formation of a committee that will make sure governorates and regions (not ethnicities) are given “fair” participation in government.  Again, this depends on future legislation and cannot be implemented by fiat of the political leaders. All in all, the Arbil agreement is simply too big and ambitious – a classic case of political bulimia and nothing more.

Thus, despite these supposedly fateful revelations, the only truly interesting question in Iraqi parliamentary politics these days remains whether the Sadrists are prepared to sack Maliki or not. Everything else – including lofty agreements to implement every iota of Arbil – will play into Maliki’s hands by letting him procrastinate the many proposed pieces of legislation ad infinitum. Meanwhile he will continue along the lines of his preferred strategy: Nominal power-sharing and de facto minority government, reflected in an accumulation of acting ministers lacking parliamentary approval. As long as his enemies appear unable to unite in sacking him, why would Maliki do anything else?

A word on the international approach to the ongoing Iraqi power struggle is also in order. Those who want to get rid of Maliki – especially in Iraqiyya but also in some American circles – tend to portray him as an Iranian stooge. They should keep in mind that it is Muqtada al-Sadr that commands the swing vote in this matter. Whatever Sadr decides is probably what Iran sees as being in its best interest. Consequently, if the Sadrists should after all line up with the others to vote out Maliki, this will probably reflect an Iranian desire to see him go, perhaps in order to have him replaced with a “weaker” Shiite premier. This is why it is so hard to understand those arguing for the sacking of Maliki from an anti-Iranian perspective.

As for the US, two contradictive tendencies are seemingly at work. Some months ago, the Obama administration was accused of promoting a “split Iraqiyya” policy aimed at deeper integration of some Iraqiyya ministers and other government officials while shutting out those parts of Iraqiyya that don’t cooperate with Maliki. The merits of those accusations are disputed. But in any case, it deserves mention that if there is in fact such a policy by Washington, it gets constantly contradicted by the US government’s own insistence on keeping the Arbil agreement as the key to better integration of the government. This is so because as long as Arbil remains on the agenda (instead of, for example, a more limited but implementable deal on security ministries), key “centrist” people in Iraqiyya like Usama al-Nujayfi – the parliament speaker – will continue to take the positions of Allawi and the Kurds and the wide gap to Maliki will remain, without any meaningful integration of secularists and Sunnis in the current government.

There are reports that Barzani, the KRG president, is travelling to the United Arab Emirates today for a high-level meeting, supposedly to heap even more pressure on Maliki. The truth is that Barzani can travel as much as he wants but it doesn’t matter much unless he makes Muqtada al-Sadr actually withdraw confidence in Maliki.

The Budget Aftermath: Another Quasi-Decision in the Iraqi Parliament

Iraqi parliamentarians have been on a week-long holiday since they passed the annual budget for 2012. Meanwhile, Iraqi media have given Iraqi politicians a chance to vent their anger regarding items in the budget about which they had second thoughts.

The first days after the passage of the budget, the debate was dominated by signals that some in the government, especially those close to Prime Minister Nuri al-Maliki, were unhappy with the failure of parliament to pass article 36 of the budget which would have given the government greater freedom with respect to spending money. There were even suggestions that the government would bring the matter before the supreme federal court – based on the argument that the annual budget is a special case of legislation for which article 62 of the Iraqi constitution imposes limits as to how much parliament can do in terms of editing (basically nothing much beyond moving money from one post to another). Furthermore, it has emerged that it was the financial committee headed by Haydar al-Ibadi, a Maliki ally, that played the leading role in abruptly adding articles to the budget on the day of voting subsequent to the cancellation of article 36, including some that seemed nonsensical or out of place (for example, a stipulation that scholarships abroad be distributed evenly between governorates). Was some of this last-minute added matter a deliberate move to make the budget vulnerable to challenges in the supreme court so that the government could regain article 36 if it wanted? One can wonder, especially since the cancellation of a single article on spending hardly goes beyond what the constitution allows for in terms of transfers (i.e. the equivalent of nullifying something), and also since it has been done before (in the 2011 budget, article 22 cancelled the “social spending” of the three presidents also through a last-minute change).

More recently, it is the earmark for armoured cars for Iraqi parliamentarians that has come to the forefront. The massive public criticism of special protection for politicians is understandable given the continuing security problems affecting the poorest of Iraqi society. Nonetheless, the question is how parliament can make changes to the whole budget it just passed.

Today, that issue came up for debate as the Iraqi parliament reconvened. It was decided that in order to make changes to the budget, a new, ordinary law has to be passed. The committees for finance and legal affairs were charged with preparing a draft law, which supposedly will go through the usual two readings before a vote. Thankfully, parliament did not opt for the (perhaps more logical) solution of amending the entire budget.

Politically, it is noteworthy that members of Maliki’s State of Law bloc were in the forefront among those demanding a new law to cancel the spending on the armoured cars. That, alongside the fading of the calls for a supreme court review of the budget, might indicate State of Law ended up concluding that the glass is at least half full and that there is a political net advantage of having negotiated the budget hurdle without any major showdown. Certainly, opening up once more the whole parliamentary debate on the budget would be risky, and even the Iraqi supreme court would probably find it difficult to go ahead with what Maliki perhaps might prefer – reinsertion of article 36 and keeping the rest unchanged.

As for the Iraq parliament as an institution, despite what the media says, today’s “decision” on the budget was essentially a non-decision. The deputies “agreed in principle” to press for a law to cancel the armoured cars. That “agreement in principle” is not a law, but with parliament so often unable to do what it should do (i.e. pass laws) there has been an inflation of this kind of quasi-decisions  that can help mask the ineffectiveness of the deputies. A recent, interesting case in point is the little-noticed “decision” that preceded passage of the budget on 23 February – about “balance” (ethno-sectarian quotas) in the armed forces (as per article 9 of the constitution) and special representation of the federal regions and the governorates at the level of state (article 105). This is however not a law (and article 105 specifically calls for a law), and whoever demanded it as a prerequisite for passing the budget (presumably the Kurds) has in fact signed up to yet another mini Arbil agreement unlikely to see implementation any time soon.

In the weeks leading up to the Arab summit scheduled for the end of March, focus in parliament is likely to move to the amnesty law (with another attempt at a second reading on Thursday). Generally speaking, Sadrists and the secular Iraqiyya have people in their constituencies who would benefit from a liberal amnesty law whereas Maliki’s State of Law are pressing for more restrictive definitions of who should be eligible for pardon. The law has been at the level of a second reading for several months, exemplifying the kind of long-term stalemate that has become so characteristic of Iraqi politics.

Maybe Iraqi parliamentarians will understand that one day, armoured cars may not be sufficient to protect them from the anger of an unhappy electorate fed up with parliamentary inefficiency?

Towards Asymmetrical Decentralisation in Iraq?

Maybe it was the physical dislocation of the Iraqi cabinet and Iraqi journalists to the southern port town of Basra that was the reason.  Perhaps it had to do with a desire on the part of Prime Minister Nuri al-Maliki to somehow please his constituency in Basra at a time when pro-federal Sunni movements have forced him to take a negative stance on the creation of new federal regions generally. Whatever it was, Iraqi politicians and journalists produced an amazing array of misleading statements subsequent to the first meeting of the Maliki government outside the capital Baghdad yesterday.

In what appeared to be direct quotes from normally reliable people like deputy PM Hussein al-Shahristani and government spokesman Ali al-Dabbagh, there were suggestions that not only had Basra been granted some kind of special status with minister rank for its governor and enhanced spending powers compared with other governorates. Some even suggested that contractual powers for the oil sector were also included:

وقال الشهرستاني في تصريح صحفي ان :” مجلس الوزراء قرر في جلسة عقدها اليوم في البصرة منح المحافظ خلف عبد الصمد صلاحيات وزير فيما يتعلق بصرف المبالغ الخاصة بالمشاريع الخدمية الى جانب ابرام العقود النفطية في خطوة ينشد منها المجلس توسيع صلاحيات الحكومة المحلية في المحافظة “.
واشار الشهرستاني الى ان ” قرار المجلس اعطى المحافظ صلاحية التوقيع على صرف مبالغ تتراوح ما بين 50 الى 100 مليون دولار والتي كانت سلفا حصرا بالوزير ، كما مكن المجلس المحافظ من احالة المشاريع وابرام العقود مع الشركات (بضمنها ا النفطية) دون الرجوع الى الوزارات المعنية بالامر “.

Many observers were skeptical, but for the next 24 hours the stories made their way through Iraqi media anyway – complete with parliamentarians commenting for and against the assumed cabinet decision. After all, the Iraqi cabinet already violates so many fundamental features of the Iraqi constitution (including the right to form federal regions) that it wouldn’t necessarily be shocking for it to introduce yet another infraction, however outlandish.

In the end, though, it was a false alarm. In the more down-to-earth report by parliament spokesman Dabbagh today, there is no mention of the oil sector, and hardly any suggestion that Basra was given special status – the reported spending cap was made to apply to all governorates. In fact, in the Dabbagh summary, the only special privilege granted to Basra is an apparently simplified governmental approval process for certain kinds of projects. Whether this really constitutes differential treatment in practice remains to be seen, but it is a lot less radical than the initial media headlines suggested:

7.الموافقة على زيادة سقف الحد الأعلى لصلاحية لجان المشتريات في كافة المحافظات الى (100) مليون دينار بدلاً من (50) مليون دينار ورفع صلاحية المحافظ في الإحالة الى (100) مليار دينار. والإيعاز الى محافظة البصرة بعرض المشروعات المحالة من قبلها دون إستحصال موافقة اللجان الوزارية المختصة على اللجان المختصة القطاعية لتدقيقها وإستحصال الموافقات الاصولية بشأنها وعلى اللجان الوزارية القطاعية (لجان الخدمات والشؤون الاقتصادية والطاقة والتعليم) النظر في المشاريع المحالة عليها من الوزارات والمحافظات خلال (14) يوماً من تاريخ استلام الطلب في اللجنة وبخلاف ذلك تعتبر موافقة اللجنة حاصلة ما لم تبادر اللجنة لطلب معلومات إضافية عن المشروع من الوزارة أو المحافظة خلال تلك الفترة وترسل طلبات الموافقة على الإحالة الى اللجان الوزارية المختصة مباشرة دون الحاجة الى إرسالها عن طريق الأمانة العامة لمجلس الوزراء من قبل الجهة المعنية وباليد لتسريع الإجراءات

What this whole little affair has revealed, however, are the large gaps in the legislation regulating centre–periphery  relations in Iraq – as well as considerable ambiguities in the Iraqi constitution itself.

Everyone talks about the “spending cap” for governorates, but where exactly has that been legislated? Is it in the provincial powers law of 2008 or in the annual budgets?? This problem in turn relates to the fact that the provincial powers law of 2008 did not really do much to demarcate responsibilities between governorates and ministries in so-called “shared” areas of government (articles 112 and 114 of the constitution). What it did, first and foremost, was to create a sack-and-appoint procedure whereby local politicians were given a say in the appointment of high-level officials of the central administration working in their governorate (health, police, education etc.).

Similarly, today, the Kurdish MP Bayzid Hassan expressed outrage about the alleged cabinet decision to give Basra contracting powers for the oil sector. This “has to be legislated”, he demanded. But his outrage is misguided. According to article 112, federal regions and producing governorates enjoy exactly the same rights as far as oil is concerned. Basically, if KRG can sign – and that is a big if, depending on how one reads the rest of 112 – Maysan can sign. There is no other possible reading, regions and producing governorates have equal constitutional status as regards energy (and residual powers, article 115), period. Incidentally, this means that if any of the current draft versions of the oil and gas law actually passes in parliament, it will be unconstitutional from the get-go since all versions bestow contracting rights on federal regions but not on producing governorates.

Most commenters dismissed the story about Basra contracting rights as unrealistic, not least given the past record of centralism on the part of Shahristani in particular. What the episode actually highlighted was yet another fundamental contradiction between the Iraq outlined in the constitution of 2005 and the way the country actually works.

The Arbil Agreement and the Real World: Time for Some Cold Water

Tomorrow, Sunday, Iraqi leaders will once more meet to make preparations for their next big get-together. When, or if, there is ever a national conference-style gathering in Iraq – possibly to downgrade expectations it is now officially just called a “national meeting” – it is unlikely to turn into the implementation of the far-fetched and shadowy Arbil agreement. At most, the meeting will end in renewed agreement in  principle to legislate non-implemented aspects of Arbil (strategic policy council, oil and gas law etc.) whereupon those pieces of draft legislation will come up against the usual stalemates when they actually reach the floor of the Iraqi parliament.

It could be argued that only two items in the Arbil agreement stand out as having some realistic chance for implementation: Cabinet bylaws and the distribution of the security ministries.

Maliki knows perfectly well that the inclusion of the cabinet bylaws as a separate item at Arbil was aimed at restraining himself as a potential strongman. However, unlike many of the other items in the Arbil agreement, on the bylaws one Maliki cannot easily hide behind the claim that the proposed mechanism is outside the constitution. In fact, the constitution specifically demands the adoption of bylaws for the cabinet (85), and not even a parliamentary decision is needed.

What Maliki can do, of course, is to rely on the proven ability of Iraqi politicians to quibble forever over even the most inconsequential details, making it a safe bet to assume that no early adoption of cabinet bylaws is terribly likely.

That aspect should be kept in mind also by those who want to use the upcoming meeting for the purpose of modifying what they see as highhandedness on the part of Maliki. Perhaps they may want to have a look at the second implementable item instead: The allocation of the security ministries.

For more than one year, the security ministries have been in the hands of acting ministers – Maliki himself for interior, with close allies at defence (Dulaymi) and national security (Fayyad). Two main attempts at having them filled through parliamentary procedure (March and May 2011) both failed. There is general agreement that the jobs should be filled by professionals nominated by the secular Iraqiyya (defence ministry) and the Shiite Islamist National Alliance (interior ministry) respectively, although attempts have been made to Maliki to define the defence ministry as reserved for a Sunni rather than an Iraqiyya candidate, which could enable him to impose a figurehead instead. Critics of Maliki claim the current acting (Sunni) defence minister is precisely such a figurehead.

The dynamics of the security ministries have changed somewhat over time. Initially there was considerable intra-Shiite conflict between Maliki’s State of Law and the other Shiite parties, and the Sadrists in particular, about who should become interior minister. The Sadrists at one point wanted Ahmed Chalabi for interior minister; Maliki favoured Shiite professionals who had worked for the old regime.

More recently, there has been renewed focus on the Shiite candidates for the interior ministry, with a more consistent chorus of voices suggesting Tawfiq al-Yasiri, who was once in the Iraqi army but fled after 1991, is now the consensus candidate of the Shiites and that he also enjoys some support from Iraqiyya and the Kurds. The problem now is apparently that Maliki has rejected a string of defence ministry candidates from Iraqiyya, citing de-Baathification in ways that look inconsistent with how he himself is in the habit of employing Shiites with a Baathist past. In fact, it seems Maliki is actually quite happy with Dulaymi as acting minister. It is not entirely unlikely that Maliki is using the candidacy of Yasiri mainly as a fig leaf and that he is actually also happy with his close ally Adnan al-Asadi continuing to exert de facto control at the interior ministry.

If that assumption is correct, probably the only way Iraqiyya can obtain support for one of their own candidates at defence is to think outside the box. What Iraqiyya could do in order to make Maliki change his mind is to remind him of the fact that the Sadrists are waiting in the wings with a claim for a deputy interior minister. If they want to reach out to Maliki, Iraqiyya could make sure to support an interior ministry candidate that the other Shiites detest. There is precedence for this: In the second half of April 2011, Maliki reportedly offered Iraqiyya to support their candidate for defence if they would give him the necessary support to get rid of Ahmed Chalabi as the interior ministry candidate of the Shiites. Maliki has similarly resisted other candidates for the interior ministry considered too close to the Sadrists such as Abd al-Karim al-Sudani. As recently as September 2011, Maliki was in trouble in Maysan when he imposed a police chief (Ali Ghazi al-Hashemi) with a military and Baathist background against the wishes of ISCI and the Sadrists.

Alas, Iraqiyya is apparently not thinking along those lines at all. In a sad repeat of their manoeuvres to obtain Shiite support for their Ayyad Allawi as premier candidate in summer 2010, Iraqiyya leaders have once more been courting ISCI and Sadrists in order to “challenge” Maliki. As has Turkey. As has the United States (minus the Sadrists). These players just don’t see that the “challenge” to Maliki will never tip the balance.

If Iraqiyya proceeds like this, one of the few likely results of the upcoming national meeting could be the appointment of a Sadrist deputy interior minister. How wonderful.

The Kurdistan Constitution Is Back on the Agenda: Implications for Iraqi Politics

The project to adopt a constitution for the federal region of Kurdistan (KRG) can be classified as one of the “silent drivers” of Iraqi politics.

The current draft constitution of the KRG was finalized by the Kurdish parliament in 2009. At the time, a referendum on it was expected but it was eventually delayed. Some attribute the delay to internal bickering among the Kurds; others say pressures from Baghdad played a role.

At any rate, Kurdish politicians – and Kamal Kerkuki in particular – are once more talking about the need to have a referendum on the Kurdistan constitution. Reactions from outside Kurdistan have been quite massive. The main reason the KRG constitution is sensitive to Iraqi politicians beyond the Kurdistan region itself is the definition of the Kurdistan region contained in the draft constitution. This includes several areas in the governorates of Wasit, Diyala, Salahaddin, Kirkuk and Nineveh that are claimed by the Kurds but are not currently controlled by them. Politicians in areas claimed by the Kurds in Diyala, Kirkuk and Nineveh are particularly furious about the renewed talk about a referendum.

The protestors make reference to the constitutional principle that no law passed in Iraq can contradict the constitution itself. Does the Kurdish constitution contradict the Iraqi constitution? Technically speaking, it certainly does. This is so because the definition of the Kurdistan region in the Iraqi constitution is very clear: Article 142 says article 53A of the Transitional Administrative Law from 2004 shall remain in force; that article in turn says “The Kurdistan Regional Government is recognized as the official government of the territories that were administered by the that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh”. Of course, Kurdish politicians will lose no time in reminding us that also article 58 of the TAL regarding the settlement of “disputed territories” was given extended life through articles 140 and 142 of the constitution; their staunchest opponents say the failure to implement article 140 by the constitutionally mandated deadline in 2007 signified its death.

Irrespective of the legal complexities involved, it is noteworthy that in political terms, key allies of Prime Minister Nuri al-Maliki have previously invested considerable energy in criticizing the Kurdistan constitution for being in conflict with the Iraqi constitution. Importantly, this goes beyond predictable resistance from Turkmen allies of Maliki like Abbas al-Bayati. It also includes people like Sami al-Askari, who in the past has specifically spelt out the differences between the TAL definition of Kurdistan and the definition contained in the Kurdish draft constitution.

The revival of the Kurdistan constitutional referendum question highlights the long-term options before Maliki today.

Maliki can choose to work with the Kurds, support their constitutional referendum plus implementation of article 140 (or the light version proposed by President Talabani). This will inevitably make him look sectarian in the eyes of many Sunni Arabs, who are among the main opponents of Kurdish expansionism – and will in turn likely make him more dependent upon Iran.

Alternatively Maliki can work with Iraqiyya, or with splinters from Iraqiyya, in which case it would be easier to keep Iran at an  arm’s length. But this would also raise the prospect of full secession by Kurdistan, possibly followed by armed conflict to settle final boundaries.

More likely, Maliki will try to avoid making too strong commitments to either side. In the meantime, however, he still needs some political allies to get the annual budget for 2012 passed.

After One Month of Boycotting: Iraqiyya at a Crossroads

It is exactly one month since the secular, increasingly Sunni-backed Iraqiyya coalition began boycotting  the Iraqi parliament, followed by the withdrawal of its ministers from cabinet sessions. It has been a dramatic month full of heated verbal exchanges with political opponents; nonetheless it is high time that Iraqiyya stands back and reflects on what exactly it has achieved so far.

In terms of practical results, Iraqiyya’s actions have at least managed to put the subject of some kind of “national conference” on the agenda. Iraqiyya are hoping that such a conference will deal with the fulfilment of promises made by Prime Minister Nuri al-Maliki during the process of government formation in November–December 2010. But doubts remain about the exact agenda, location and date of the conference.

More fundamentally speaking, it is the unequivocally negative results of Iraqiyya’s boycott that stand out. The boycott has clearly accelerated a trend of defections from the Iraqiyya coalition by individual politicians and groups of politicians that are more interested in taking part within the system than in boycotting. Examples include prominent politicians from Babel and Nineveh – the latter showing that this is a phenomenon that includes Sunnis as well as Shiites from Iraqiyya. The defectors are not necessarily openly pro-Maliki, but they tend to agree with Maliki on some issues, including an aversion against the recent pro-federal trend among some Sunni politicians.

The net effect of all the defections from Iraqiyya since early 2011 may be a loss of around 5 deputies so far. That may not sound like a lot, but every single defection does bring Maliki closer to his dream of a so-called political majority government.

So what are Iraqiyya doing at this momentous juncture? Alas, very few new ideas were presented by coalition leader Ayyad Allawi during his speech today. In fact, all three alternative ways forward proposed by Allawi involve constitutional problems that have been debated before.

Firstly, the suggestion by Allawi to have new elections under an interim government is unconstitutional. This goes back to an idea which has consumed a ridiculous amount of energy both among Iraqiyya leaders and the Americans since 2009, to the effect that there could be some kind of neutral “caretaker” administration during the run-up to elections. Unless the prime minister resigns or is voted out of office, there is no such thing as a transitional caretaker government in the Iraqi constitution, period. The legal status of the government remains exactly the same until a new government is formed. Additionally, any call for early elections would of course reopen the stalemated debate about the composition of the Iraqi elections commission and the electoral law, probably ensuring that actual elections would not happen until 2013 at the earliest.

The second suggestion by Allawi to have the dominant partner in the government, the Shiite National Alliance, change its prime minister (i.e. sack Maliki) is also unconstitutional as long as he means changing the PM only. As per the constitution, once the PM is voted out of office, the cabinet as a whole is considered resigned and it is the job of the president to identify the biggest bloc in parliament and charge its PM candidate with forming a new government. Constitutionally speaking, then, there can be no smooth and easy transition from Maliki to whoever may be waiting in the wings – Allawi is probably thinking of Adel Abd al-Mahdi; Iran of Ibrahim al-Jaafari.

Thirdly, the alternative of trying to enforce an implementation of the Arbil agreement itself would also be unconstitutional, as Maliki has rightly reminded us lately. Things like the national council for high policies, the idea of “balance” in the ministries of government, and the re-establishment of the presidency council are all unconstitutional. One of the few specific points of the obscure Arbil “agreement” that actually resonate with the constitution is the demand that bylaws for the cabinet be adopted. In the current political climate, early agreement on such a complex piece of legislation seems entirely unrealistic.

The real alternatives for Iraqiyya seem very few at this point in time. They may of course opt for the pro-federal course, as some have attempted, but this might also end up with a bloody nose as well. Examples of Sunni resistance towards federalism continue to manifest themselves, and might well surge considerably if an actual referendum were to be held.

A far more realistic course of action would be to forget about most of the acrobatics of the Arbil agreement and instead focus on something very basic: The security ministries that are still run by acting ministers not confirmed by parliament (the interior one being of course Maliki himself). Although the constitution does not expressly deal with the question of acting ministers, the idea of having ministers confirmed by the national assembly is so central to all variants of parliamentary democracy in the world that Maliki would be in for severe international criticism if he should opt to continue with acting ministers indefinitely.

What Iraqiyya could and should do is to make a deal with Maliki on the security ministries that appeals to his desire to be in a dominant position vis-à-vis competing Shiite Islamist factions. It is well known that the Sadrists, Fadila and ISCI are all critical of some of Maliki’s nominees for the interior ministry. What Iraqiyya should do is to give Maliki support for an interior minister that is unpopular with the other Shiite factions in exchange for a defence minister acceptable to Iraqiyya. That could, over time, bring about the rapprochement that the Arbil agreement will never be able to produce.

For Iraqiyya, the real alternative to rapprochement with Maliki is none of the three options discussed by Allawi today. Rather, it is an inevitable process of internal disintegration, eventually leading Maliki to establish a more narrow governing coalition that will likely exclude many Iraqiyya politicians entirely.