Iraq and Gulf Analysis

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

The Iraqi Elections Commission Publishes the List of Political Entities for the 2014 Parliamentary Elections

Posted by Reidar Visser on Wednesday, 20 November 2013 19:35

Coinciding with the expiry of the extended deadline for registering political entities for the April 2014 parliamentary elections (and following approval of changes to the electoral system), a list of 142 entities certified by the Iraqi elections commission so far was released today. It is possible that there will be last minute additions, but most of the big players are included, suggesting the list gives a good picture of the parties that will take part in the elections.  That being said, one should perhaps not look to this list with too much in the way of expectations about answers to what the political landscape will be like in the next general elections in Iraq. During the run-up to the previous elections in March 2010, it became clear that it was the subsequent announcement of coalitions – expected to take place in December this year – that proved significant as a harbinger of the electoral frontlines.

Nonetheless, it is worth taking a closer look at this material. Starting with the Shiite Islamists, all the big parties are in there, and there is also evidence of the persistence of some of the internal subdivisions within the State of Law alliance that came to the fore in the local elections this year. Thus, firstly there are Ahrar (Sadrists), Risaliyun (Shahmani), Fadila, Badr, Hizbollah in Iraq (Sari), Muwatin (ISCI), Iraq National Congress (Chalabi), Muwafaq al-Rubayie, Daawa (Tanzim al-Dakhil), Daawa (Maliki), Daawa (Tanzim al-Iraq), Daawa (Haraka), Independents (Shahristani), as well as State of Law somewhat incongruously registered as an “entity” in the name of Haydar al-Abbadi (the same thing happened before the local elections and it is a little unclear why they are registering the coalition as a party). Independent Sabah al- Saadi, formerly of Fadila and with notoriety for his battle with PM Maliki, has his own party; the Shaykhi subsect of Basra is also running an entity of their own (Amir al-Fayiz). And then there are small parties of people with ties to State of Law: Ali al-Dabbagh, Shirwan al-Waeli and Haytham al-Jibburi. Some of these managed to win seats in the local elections in April. By continuing to exist as recognizable entities, they also signify potential centres of gravity catering for the same electorate that Maliki has appealed to in the past. Finally, two ministers considered close to Maliki that are running separate parties may perhaps be considered in a different light since they appeal to voters outside the Shiite Islamist base of Maliki. They are Sadun al-Dulaymi (Sunni Arab) and Turhan al-Mufti (Turkmen).

Turning to the secular-Sunni circles that in the past have been associated with Iraqiyya, an even greater degree of formal fragmentation can be seen. There is no entity called Iraqiyya as such. What was formerly Wifaq of Ayyad Allawi is now registered under the name of Nationalism (Al-Wataniya). Then there is the Mutahiddun list of parliament speaker Nujayfi , the Future party of Dhafir al-Ani, the small party of Hussein al-Shaalan, as well as a flurry of small lists associated with the defections from Iraqiyya in parliament that happened mainly in 2012 before and after the targeting of Vice President Tareq alHashemi. These include already known entities like White, Hall, Free Iraqiyya and Wataniyun, but there are also separate entities associated with figures like Ahmad al-Masari, Mustafa al-Hiti and Talal al-Zubayie. Saleh al-Mutlak does not appear to have registered a separate list, whereas it is noteworthy that the Iraqi Islamic Party (Sunni Islamist) has reappeared after it lost greatly to Iraqiyya in 2010 and was of little significance in the local elections in April this year.

Two significant omissions must be mentioned. For some reason, the Kurdish KDP party is not listed. Unless this is intended as grandstanding by Masud Barzani (who has hinted at the possibility of boycotting the elections), this presumably relates to a technicality. Also it is unclear whether a list loyal to Asaeb Ahl al-Haqq group, the Sadrist splinter group that has more recently flirted with Maliki, is included in this material. There is no obvious connection through name, but the party leadership has vowed it will run in the next elections.

All in all, it is the nature of an entity list of this kind that a fragmented picture appears. The list is a collection of potentials, and people who may intend to join coalitions at a future stage may have registered separately simply because of their own hubris. It is the coalition list that will truly count, and that is expected in December.

Posted in Iraq parliamentary elections 2014, Uncategorized | 3 Comments »

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 »

Iraq Amends Its Electoral Law and Is Ready for Parliamentary Elections in April 2014

Posted by Reidar Visser on Monday, 4 November 2013 19:51

Iraq has finally amended its electoral law, paving the way for general elections to go ahead no later than 1 May 2014.

The most significant  change to the electoral law concerns the seat distribution method. Following a supreme court ruling that deemed the previous largest-remainder principle unconstitutional, a more proportional, so-called modified St. Lague method will be used to calculate seats. This gives smaller parties slightly better chances to win seats than under the previous system.

Other major systemic changes that were on the table were all dropped. There will be no change to the open-list system, nor will there be any revision to a single, nationwide electoral constituency, which the Kurds had pressed for.

Instead, there are minor adjustment to the seat distribution between governorates. The seven seats that were distributed to the winning blocs at the national level in 2010 have been allotted to governorates instead, and three extra seats have been added to the mix. The governorates that won one extra seat each are Baghdad, Basra, Dhi Qar, Babel, Karbala, Anbar, Diyala, Erbil, Dahuk and Sulaymaniyya. The eight minority seats remain the same.

It is noteworthy that in this way, the Kurds came best out of the new apportionment. Compare with 2010, where the Kurds eventually won one of the seven national/compensation seats, or 14%. This time they are guaranteed a third of the ten seats that are allotted on top of the 310 seats that are distributed based on population statistics. Kurdish assertiveness in this question in turn reflects their historical dissatisfaction with the ministry of trade statistics (based on ration cards) used to determine the number of deputies per Iraqi governorate. The Kurds had hoped that ministry of planning estimates would be used instead, thereby increasing the number of MPs to 351. When this didn’t happen, the Kurds achieved a respectable second best alternative through a disproportional increase in the newly added governorate seats. Generally speaking, since the Kurds have reasonable internal coherence and discipline among its parliamentarians, seat increases work in their favour. Conversely, the Shiite Islamists have strenuously fought against seat increases, probably fearing even greater fragmentation as a result. For their part, the secular (and now increasingly Sunni-backed) Iraqiyya has already fragmented to such a degree that its leaders may have supported the Kurdish position simply in the hope that any increase in seat number would offer them a greater chance to keep their own personal seats! It is noteworthy that in the end, clear signals from the Shiite clergy expressing disapproval of a seat increase were not adhered to entirely. Some sources suggest the United Nations Mission in Iraq (UNAMI) played a role in facilitating a compromise on this issue between the Kurds and the Shiite Islamists.

One caveat concerning the new law needs to be mentioned: Its status as a “law proposal” rather than a “legislative project”. The Iraqi federal supreme court has consistently struck down such proposals as unconstitutional when challenged (and especially when these laws are unfavourable to Prime Minister Nuri al-Maliki). It might do so again, simply for consistency. An even trickier issue concerns the Yazidi minority quota, which the court itself ordered be adjusted upwards in 2010 – that didn’t happen today (and the Yazidis protested). There are however two ameliorating factors here: Firstly, with regard to the overall status of this act of legislation, the new law was passed as an amendment to an existing law, rather than as a brand new law. Second, the new law successfully addresses specific and overriding issues that the supreme court itself had raised regarding seat distribution method. Hopefully, there is now so much momentum towards elections in April 2014 that no side will try to fish in the legal murky waters that admittedly exist. It would, after all, be a parody if the supreme court used a technicality to strike down legislative amendments that the court itself had previously dictated.

Posted in Iraq parliamentary elections 2014, Uncategorized | Comments Off

As Maliki Visits Washington, the Iraqi Parliament Seeks Electoral System Compromise

Posted by Reidar Visser on Friday, 1 November 2013 12:36

As Prime Minister Nuri al-Maliki visits Washington, highly polarized narratives about the nature of his rule in Iraq compete for attention. Maliki himself focuses on reintegration in the Arab world, growth in oil production, and a modicum of internal stability that is only disturbed by the situation in Syria. Some American senators see things very differently, accusing him of authoritarianism and a failure to create a truly inclusive government. In the most extreme iteration of this point of view, Maliki is seen as contributing to the problems in Syria because of the ways Iran is allowed to use Iraqi territory in their efforts to bolster the Assad regime.

It may be worthwhile to use current developments on the Iraqi political scene – unfolding day by day as Maliki visits Washington – as a yardstick for evaluating these very different interpretations of his premiership. These days, Iraqi politicians are busying themselves with amendments to the country’s electoral system. They are trying to pass a brand new election law that will incorporate changes to the current law from 2005 following criticisms from the federal supreme court. If this fails, they will simply make yet another amendment to the existing one – but the independent electoral commission IHEC has warned that it needs to do so fast in order that technical preparations can be completed before elections can go ahead in April 2014.

The optics of this aren’t entirely unfortunate for Maliki. Far from intervening in the squabbles in the Iraqi parliament which began this week and continue on Saturday, he is far away in Washington, not at all fitting the description of him as a paranoid, control-freak autocrat that is terrified of challenges to his rule. The debate about the election law itself has also degenerated into basic haggling over seat allocations to the various provinces, quite similar to what we saw in the autumn of 2009. Initially, there had been prospects for more radical changes to the districting system, but what we are seeing now is a replay of disputes that are four years old, and that mainly relate to the preference of the Kurdish parties to use the population statistics from the ministry of planning rather than those of the ministry of trade. Using the planning ministry figures would increase the number of seats in parliament from 325 to 351, which the Shiite Islamists in parliament have opposed in particular. Most likely a solution will eventually be found, and most likely it will involve some kind of opaque compromise in which statistics will be subordinated to the horse-trading efforts of Iraqi parliamentarians.

There is however one important caveat here that ultimately also relates to the evaluation of the current state of Maliki’s Iraq. What has failed to receive much attention is the fact that the law that is currently being considered by the Iraqi parliament is a brand new law proposal, rather than amendments to the existing law. As a “proposal” or muqtarah it has not been approved by the cabinet, and the most recent trend has been for the Iraqi supreme court to strike down this kind of proposals as incomplete legislative acts – something it has done in particular when new laws have been to the disadvantage of Maliki. Moreover, since the current iteration of the election law from 2005 has also been deemed unconstitutional because of its seat distribution formula, there is a theoretical possibility that Iraq will be without a valid election law if anyone challenges the new law proposal. Maliki might do so if he wishes to delay the elections, although there would be a highly ironic twist to this in that Maliki’s allies are the ones who favour the seat distribution key of the 2005 law that has since been deemed unconstitutional by the supreme court and is the reason the law is being revised in the first place. At any rate, if this kind of scenario should materialize, it would clearly support the interpretation that Maliki is unafraid of the Iraqi parliament because he chooses to ignore it, relying instead on rulings by the supreme court that consistently strengthen his hold on power.

The reality, as ever, is of course somewhere between these extreme, black and white interpretations. And the parliamentary elections of 2014 will in many ways decide which of the two scenarios prevails in the long term. Instead of seeking to impose particular preferences regarding Iraq’s electoral system or fetishizing the question of a third term for Maliki, Washington should use the visit of the Iraqi PM to provide the him with a gentle reminder that Iraq’s problems cannot be reduced to spillover from Syria alone. Whilst there is nothing in the Iraqi constitution or democratic theory more broadly that stands in the way of a third term for Maliki, a failure on his part to build a broader and more inclusive electoral alliance could prevent him from succeeding for the third time. This is not the same as saying that any new government should be a power-sharing one (as opposed to a political-majority government). It just implies that Maliki’s State of Law coalition in its current configuration looks very far from being capable of securing a majority in the next Iraqi national assembly, quite regardless of which method is adopted to count the votes and how many seats are allotted to each of the provinces.

Posted in Iraq parliamentary elections 2014, Uncategorized | 2 Comments »

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 »

Obama and the Syrian Fight Club

Posted by Reidar Visser on Monday, 2 September 2013 15:26

Here are a few thoughts about the intensified debate regarding foreign military intervention in Iraq’s western neighbour, Syria.

The controversy about the use of chemical weapons has essentially forced the Obama administration to present a condensed version of what it will do and what it won’t do in terms of intervening in Syria. In statements related to possible action, it has become clear that the Obama administration views chemical weapons use as the sole possible justification for intervention, and that such intervention does not aim at changing the balance of power between the warring parties or unseating the Assad regime. The only clearly articulated goal seems to be to punish Assad in a way that does not support one side in Syria over the other.

That seemingly surgical goal should in itself warrant some suspicion. If the plan is to strike at command and control centres rather than the chemical weapons themselves (which would be even more dangerous), how can this not affect the balance of power in Syria which is already so fragile that every little village is fought for as if they constituted some kind of Stalingrad in their own right? Additionally, with the ample advance warning provided, the Americans would be very lucky to avoid any attempt by Al-Qaeda to perform attacks against Assad scheduled to coincide to with the American attacks, which inevitably would give Islamist hardliners an unintended boost in the conflict.

More fundamentally, it seems contradictive in the extreme to perform this kind of attack if the ulterior motive is precisely to not affect the balance of power in Syria. Because that approach means that the main strategy remains diplomacy, doesn’t it? Surely, diplomacy will be collateral damage in any American attack, since the Assad regime, Iran and Russia alike will see no reason to soften their position following what will be perceived as an American provocation. That in turn means that the net outcome of any American attack, even if performed precisely according to the American ideas about pinpointed strikes, will be a setback for diplomatic efforts and hence mean a prolongation of the Syrian conflict.

From this point of view, President Obama seems to be about to shoot himself in the foot with his attacks. Maybe he understands it himself, and that is why he is almost reversing American constitutional order by turning so surprisingly to Congress? Unless, of course, the United States views Syria as some kind of Middle Eastern version of Fight Club, in which shirts and shoes are OK but no chemical weapons please. Go on, just slug it out with your “ancient sectarian hatreds”; we will stand by and remain intensely seized by the matter without doing anything at all, not even diplomatically. That is a view of international politics which fetishizes the difference between killing with chemical weapons and killing with other means, but then again it is also what has enabled American allies in Israel, Bahrain and Saudi Arabia to continue repressing and killing their own citizens for decades without attracting much in the way of scrutiny by the US Congress.

Posted in Uncategorized | 9 Comments »

The Iraqi Supreme Court Annuls Article 23 of the Provincial Elections Law Regarding Kirkuk

Posted by Reidar Visser on Friday, 30 August 2013 11:19

Somewhat in the shadow of the recent decision by the Iraqi federal supreme court to strike down a law limiting the terms of the prime minister, another crucial decision has been taken by the court in relation to the disputed city of Kirkuk.

Technically speaking, this latest decision consists of a ruling that deems one article of the provincial elections law from 2008 unconstitutional. The article in question is number 23, which stipulated arrangements of quotas and power-sharing in the local government as well as a procedure whereby a parliamentary committee would arrive at special electoral arrangements for Kirkuk, which has not held local elections since January 2005. These stipulations have now been struck down, reportedly after a complaint from the Kurds filed only a month ago.

Since the court decision itself remains unpublished, exactly as in case of the ruling on the terms of the prime minister, we may only second guess the court’s rationale for acting the way it has. However, the most likely official reasoning for striking down the law could relate to the court’s past outspoken dislike of quota arrangements, which it considered before the great debate on the parliamentary elections law in 2009 when Kirkuk was also an issue. According to the court, the only quota arrangements that are sanctioned by the Iraqi constitution are for women as well as minorities – and crucially, the latter means minorities only when they are very small minorities that would risk no representation at all if quotas were abolished. There is of course a special irony if the argument against quotas is now being used in Kurdish favour in Kirkuk, since the Kurds have been the most consistent advocates of quotas in Iraqi politics since the 1990s. However, in Kirkuk it wanted to persevere with the same electoral arrangements as in every other governorate, thereby using its increasing demographic clout. The court’s latest decision will make it easier for the Kurds to have it their way.

There is an historical and symbolic dimension to the cancellation of article 23 that should not be lost upon us. That article, when it was passed in 2008, represented some sort of pinnacle to the Sunni-Shiite reconciliation in the name of Iraqi nationalism that eventually opened the space for Prime Minister Nuri al-Maliki to temporarily achieve some distance from Iran. Article 23 was fought over for many months, mainly with opposition from the Kurds and ISCI. Now it is gone.

This is sufficiently dramatic that it is difficult to study the decision by the court away from Iraq’s and indeed the regions political complications as a result of the Syria crisis. Why is the pro-Maliki court suddenly issuing a ruling that is so clearly in the favour of the Kurds? In the past, the  supreme court has not been particularly supportive of the Kurds, and for example in October 2010 rejected the idea of linking the Iraqi census to article 140 regarding the final status of Kirkuk and other disputed territories.

Could it be that the pressures of the Syria conflict have made it more important for Maliki than before to have good relations with the Kurds? Could it be that Iran also favours an even stronger Shiite-Kurdish alliance in Iraqi politics? With the increasing targeting of Kurds by Al-Qaeda friendly elements in Syria, the maintenance of a Shiite-Kurdish alliance may perhaps seem more important and achievable to Maliki than before.

There are regional complexities to take into consideration as well: Kurdish-Sunni rapprochement in recent years has been associated with Turkey, Barzani of the KRG and  Nujayfi and Allawi of the Sunni-secular Iraqiyya . By way of contrast, Kurdish-Iranian rapprochement has been linked to President Talabani, Vice-President Khuzaie, PUK, PKK and Syrian Kurds generally. Barzani’s credibility as a Kurdish leader is increasingly under pressure from his alliance with Turkey which seems to do nothing to protect Syrian Kurds from atrocities by Al-Qaeda friendly elements.

Kurdish interests in post-2003 Iraq were first focused on grand settlements on Kirkuk and oil, and more recently on revising administrative boundaries. Maybe this recent change of status of Kirkuk elections arrangements through a court ruling represents a more mundane and achievable bargain with Maliki?

Posted in Kirkuk and Disputed Territories, Uncategorized | 7 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 »

Anbar and Nineveh Form New Provincial Governments

Posted by Reidar Visser on Friday, 2 August 2013 8:26

Through last-minute maneuvering this week, both Anbar and Nineveh managed to get new provincial councils seated before the end-of-Ramadan holiday begins in Iraq. This means the process of forming local governments following the local elections earlier this year is complete across Iraq (with the exception of the KRG and Kirkuk where no elections were held).

The Mutahhidun bloc of the Nujayfi brothers (Parliament Speaker Usama and Governor of Nineveh Athil) expressed satisfaction with both these new local governments, reflecting the fact that they played a key role in forming them. That is something of a comeback for the Nujayfis, who had seen a substantial drop of votes on their home turf in Mosul in the elections themselves. Whereas it seems clear that much wheeling and dealing has been involved and Mutahhidun among other things were forced to cooperate with the Kurds in the Nineveh council (they had marginalized them in 2009), Mutahiddun now clearly does emerge as something of a leading party in the Sunni-majority parts of Iraq from Anbar via Nineveh to Diyala, and with some decent representation in the Baghdad council as well.

What happened politically is that the Nujayfis in both governorates managed to win people from the Karbuli and Mutlak factions over to their side in order to neutralize potentially hostile blocs.  This is a significant victory for the Nujayfis since these are precisely the factions of Iraqiyya that have been more disposed to cooperating with Maliki in the past. Other parties with a greater potential for working with Maliki than the Nujayfi camp – including the bloc of former Anbar governor Fahdawi and the list of the Yawer clan in Nineveh – in the end remained marginal and on the sidelines of these new local government formations. Maliki can now probably only count on Salahaddin among the Sunni-majority governorates for some potential support.

The council formations in Anbar thus cements the role of Nujayfi  as some kind of unifying figure in the Iraqi north-west, and to some extent compensates for lost prestige resulting from the marked decline in votes in Nineveh itself. Even though it is debatable whether the Nujayfis personally enjoy the same level of influence in Anbar and Diyala as in Nineveh, this turn of events does seem to signify the return to the agenda of some of the radical rhetoric that characterized protest movements in Anbar earlier in the year. With Nujayfi stronger, these parts of Iraq are inevitably drawn closer to Turkey, the Kurds and Sunni oppositionists in Syria than what might have happened with an Anbar governor closer to Maliki.

Still, these were local elections only. There has already been talk about the emergence of a potential alternative to Maliki in the shape of an inter-sectarian alliance between his opponents; yet back in 2009, many tentative alliances that were floated during local council formation never grew into anything enduring for the subsequent parliamentary elections. It is that crucial stage of national elections, scheduled for 2014, that will henceforth take centre stage in Iraqi politics.

Posted in Iraq local elections 2013, Uncategorized | 1 Comment »

Anti-Maliki Forces in the Iraqi Parliament Reach Another Milestone

Posted by Reidar Visser on Friday, 26 July 2013 10:42

In many ways, the approval by the Iraqi parliament this week of a Sadrist nominee as head of the country’s de-Baathification board is significant also as an indicator of the shrinking parliamentary support base of Prime Minister Nuri al-Maliki.

Ever since his accession to the Iraqi premiership in 2006, Maliki’s strength has been the ability to avoid outright showdowns with the Iraqi parliament despite persistent and growing frictions. In some cases, this has been done simply by letting parliament quarrel among themselves regarding key legislation whereas Maliki governs based on Baath-era laws: The oil and gas law is a case in point. In other cases of problematic legislation, Maliki has relied on the judiciary to strong-arm the national assembly into obedience. This approach proved itself successful in a number of cases – and perhaps most spectacularly so when the supreme court struck down early attempts to decentralize the provincial powers law in 2010, as well as in Maliki’s moves to attach the independent commissions administratively to the executive and to limit the right to question ministers. And again other potential conflicts have been defused in the last minute by the resuscitation of sectarian alliances, sometimes with reported Iranian support. First, there was of course the last-minute détente with the Sadrists that largely helped save Maliki’s premiership in early summer 2012 when things almost reached a critical level. As late as January this year, only months before the provincial elections, Shiite parties similarly sided with Maliki and failed to attend an emergency session of parliament intended as a show of support for growing political unrest in Iraq’s provinces. In sum, whereas Maliki is dreaming a lot about rather unrealistic visions of a “political majority” government, he has actually been quite successful in surviving with what is often not the “power-sharing” he posits as the lamentable reality, but rather a “political minority” government.

There have of course been exceptions, i.e. votes that were lost for Maliki or turned out in ways that were antithetical to his vision for Iraq. At the first such vote, the October 2006 law on the formation of federalism, one could argue that the Daawa had not consolidated its parliamentary base in any shape or form, and incongruously ended up supporting legislation which it would later bitterly oppose. Perhaps the most serious losses was the ascendancy of Ayyad al-Samaraie to the speakerhip in 2009, which was vigorously contested by Maliki but to no avail. More recently, Maliki twice tried to influence the formation of the Iraqi electoral commission – first by prematurely attempting to sack the incumbent one in July 2011, then by a failed attempt at inflating the number of commissioners in 2012. This was a harbinger of more serious things to come: Term limits on the premiership in January 2013, and provincial powers law revisions in June. There are reports Maliki allies are challenging some of these laws before the supreme court (and he may potentially have some success with the limitation of the premiership terms) but so far no clear decision has emerged.

Earlier this week, on 22 July, another such milestone for the critics of Maliki was reached. In a parliament session attended by no less than 243 deputies, a proposal to confirm the Sadrist Falah Hasan al-Shanshal as de-Baathification head was approved. Details on the vote are few, with some sources claiming “unanimity” and others suggesting some Maliki allies rejected it. Whatever the actual voting patterns, Maliki supporters have already indicated that they may once more complain to the federal supreme court.

The really important point though is that according to the accountability and justice law, the decision on the head of the de-Baathification committee must be made by an absolute majority, i.e. 163 out of the 325 parliament members. We must assume the decision was made in this way, and that an absolute-majority opposition to Maliki is beginning to consolidate in the Iraqi parliament. That is a threatening proposition even to a prime minister who has expertly sidelined the assembly in the past. Going forward to the parliamentary elections of 2014, he must especially be wary of the burgeoning coalition of Shiite Islamists (Sadrists and ISCI) and Sunnis/secularists (the Nujayfi bloc in particular) that reportedly pushed forward Shanshal’s approval.

Beyond the numbers, there is the strong symbolism of the personalities involved. Shanshal, of course, was sidelined by Maliki earlier this year after having attempted to remove Midhat Mahmud – the supreme court chief and a key Maliki ally in his efforts to keep the Iraqi parliament at an arm’s length. Now Shanshal is being reinstated, suggesting more criticism of Maliki’s regime of the deeper kind focusing on his relations with the judiciary could be coming up.

On a more humoristic note, the abnormally high attendance rates in the Iraqi parliament in July, in the middle of Ramadan, raise some questions about what is going on. Could it be related to superior provision of air condition at a time when most other Iraqis suffer in the 50 degrees Celsius heat? Surely, if the trend continues like this, the assembly might actually get things done, which would be a welcome change from the recent past in Iraqi politics.

Posted in De-Baathification, Uncategorized | 4 Comments »

 
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