Iraq and Gulf Analysis

Legality and Constitutionality Questions in Iraq’s Reform Push

Posted by Reidar Visser on Tuesday, 18 August 2015 21:50

A few quick points regarding the sudden reform push by Iraq prime minister Haydar al-Abadi, representing the first significant constitutional developments during a term so far characterised above all by the war against ISIS.

-Proper legal procedure was not followed when the vice presidents were voted out of office by parliament on 11 August: According to the law on presidential deputies, the initiative for relieving them of duty should have gone through the president, not the prime minister.

-In accordance with the law on presidential deputies, the Iraqi parliament is in any case under a legal obligation to elect a new presidential deputy within 15 days from the post became vacant.

-The Iraqi vice presidential position is a position stipulated and hence protected by the constitution. A cabinet that chooses to ignore this could in theory also send parliament on an indeterminate vacation. Whereas it was a good decision to get rid of two superfluous VP posts that were created only to care for the egos of certain bloc leaders, to abolish the VP position altogether seems distinctly unconstitutional.

-Also exactly like in July 2011, no proper constitutional procedure was followed during the downsizing of the cabinet from 33 to 22 ministries. As per the Iraqi constitution, each of the ministers relieved of duty should have been subjected to an individual vote (and discussion) in parliament. Again, the decision in itself is laudable but the procedure that was followed is not.

-An interesting aspect of the recent reform measures concern the attack on ethno-sectarian and party quota-sharing arrangements (muhasasa). Such attacks have been part and parcel of political correct rhetoric in Iraq ever since the emergence of new democratic institutions, but only under Abadi’s recent reforms has it been taken seriously – to the point where Kurds, in particular, are worried that it will mean majoritarianism and informal Shia dominance in practice. It should be stressed that this aspect of the reform IS constitutional. Ethno-sectarian proportional representation is only an explicit constitutional requirement as far as the armed forces, the parliament, and a one-off, now defunct, committee for reviewing the constitution are concerned. It has nonetheless become a de facto organising principle at almost every level of Iraqi government.

-The Iraqi government should be given credit for allowing public protest and persevering with reform, even as it faces an existential external threat in the shape of ISIS. The Kurdish regional government could in this case learn something from Baghdad: External threats are in themselves not an argument for setting democracy to one side. However, if the Iraqi government opts to cheat on legal procedure, its reforms are likely to be stillborn. Not least with respect to the importance of getting the judiciary on board for reform – it is in itself highly in need of an overhaul – it would be wise to stick to instruments and arrangements that are clearly within the constitutional and legal limits.


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Towards a Theory of a Rule of Law Society

Posted by Reidar Visser on Sunday, 17 May 2015 13:07

After having suffered in silence for many years now, I wanted to write up some general and academic thoughts on the extrajudicial punishment operation that I have been exposed to since 2011.

In the most general terms possible, my diagnosis of so-called modern Western civilization following years of harassment is that we do not have a “rule of law society”. By this I mean two things. One, the rule of law is not guaranteed institutionally. Second, the rule of law is not enshrined in culture, to the point where culture could act as a counterforce in the event that institutions should fail. With these two combined shortcomings, Western ” democratic” credentials aside, there is very little in the way of checks and balances in place if and when a government elects to trespass on the fundamental principles of habeas corpus, equality before the law and the presumption of innocence.

Let me give an example. Let’s assume that the police in a given country – in my case Norwegian police – decides to pursue a strategy of extrajudicial punishment against an individual whom they may dislike for whatever reason. In a true rule of law society, citizens would promptly reject any kind of involvement in an extrajudicial operation, simply because such an operation constitutes the very antithesis to the rule of law. If a citizen in a rule of law society were asked by police to harass another citizen – however trivially it may seem, such as for example by driving with peculiar lights on their car, or making particular comments to the targeted individual – they would immediately refuse, and ideally warn the police officer in question that he or she will be reported to the relevant authority for investigating complaints against the police. They would reject any role for the police in morality questions that are not addressed by the laws in force, because morality is the domain of priests and philosophers and not for the police. They might ask the police questions. For example, “if what you are trying to do is legal, why can’t you write about it publicly and confess to it with your full name? Why does it have to be secret?”. Or, “how do you even know where this targeted individual is?” (The answer would be, ” illegal supervision”. ) Or, “How long has this been going on (four and a half years in my case) and, apart from underminig our democracy in the most serious way imaginable, what is this operation costing the taxpayer?” (millions of Norwegian kroner in my case). “Who are you protecting, and against what specific crime?” (Umm, casual street photography. But it IS illegal in Sudan!) And so on and so forth. In short, members of the public in a true rule of law society would immediately understand that a police officer engaged in extrajudicial punishment is perfectly comparable to priests energetically screaming “Satan” from their pulpits: Extrajudicial punishment is the deadliest sin in a rule of law society, because it undermines the rule of law and perverts the role of the police, throwing its unique legitimacy into disrepute. Citizens in a true rule of law society will understand these most holy and unalienable principles. If they don’t, then we are not in modern Western civilization anymore, but in North Korea.

Many terms can be used to describe members of the public that take part in such extrajudicial operations. Most obviously, in most democratic countries such participants will be criminals, since typical extrajudicial punishment operations of the police-stalking kind is illegal in any country that has passed laws against torture including psychological torture (for example Norway, the UK and New Zealand), or has adopted stalking laws (for example the Netherlands). Even in democratic countries without such specific legislation, the invasive surveillance upon which any police stalking operation rests will at the very least be illegal, and thus those who cooperate with the operation will ultimately be accomplices of a crime, one way or another. It is also reasonable to describe citizen participants in extrajudicial punishment operations as uneducated, since the basic principles of the rule of law and the total impermissibility of police acting in a punitive role is part and parcel of the most basic education curriculum in any democratic country, at least at secondary school. Still,, the most fitting and academically satisfactory term for citizen participants in extrajudicial punishment is “medieval”. These are individuals who still today accept what was accepted in the Dark Ages, when priests or police-like entities could rhapsodically administer justice with no or scant reference to courts of law and other basic judicial processes. The punishment that was meted out was frequently inhumane and degrading , and not at all aimed at societal reintegration. Public humiliation was a prime goal (public exposure in stocks being a case in point). Of course, with the radical developments that took place in Western justice following the French Revolution, all of these inhumane practices have in theory been abolished. But all those key developments in Western humanism over the last three centuries have been completely lost on people who still think the police has any right to judge or punish. Such people simply do not comprehend that only the courts are entitled to any decisive opinion about misgivings police may have about an individual, and that every second extrajudicial persecution goes on, the police only adds to its own catalogue of crimes. In my case, of course, in the laws and legal tradition of all Western democracies, to casually photograph random people on the street is not a crime, and to persecute someone for engaging in this kind of activity is a crime. Thus, the only aspect of my case that has any legal dimension to it is the Norwegian police’s own criminal steps against me. Even if I were Osama bin Laden and they succeeded in taking me out using those methods, they would be the ultimate losers because of the scale of the treason of democracy that results from the use of extrajudicial punishment. In short, only the worst enemies of democracy would engage in, or assist in, extrajudicial punishment.

In my experience, the most important player undermining rule of law societies and taking us back to a medieval state of minds are pseudo-intellectuals. No number of police can construct a police state on their own, and if participation in extrajudicial punishment were limited to the uneducated classes, real intellectuals would be able to act as a buffer capable of restoring the rule of law even in the case of institutional failure. Pseudo-intellectuals, however, will profess loyalty to the most noble democratic ideals when they lecture in auditoria or write their books, and then go on to collaborate in the most horrible police-state crimes when they encounter members of the police in a face to face situation and are asked to contribute to an extrajudicial punishment operation. Why so many educated people are able to live with such contradictions inside themselves is an open question. In my experience the preponderance of young families in extra-judicial punishment operations suggests that parenthood represents a particular challenge for intellectuals, perhaps reigniting more basic protective instincts that prompts them to unreservedly embrace anything the police might do on the presumption that it protects their children from something horrible, regardless of the severe transgressions of civil rights that are involved in such operations. Pseudo-intellectuals seem to have a particular problem with alternative sexualities, and will not tolerate any kink except general homosexuality, which has achieved status as the “accepted sexual otherness” among most pseudo-intellectuals. Pseudo-intellectuals react to kinkiness in a xenophobic way instead of insisting on the universality of human rights, including the rights of sexual minorities and micro-minorities (hence the often forgotten Q and the frequently ambivalent T in discussions of LGBTQ rights). Beyond their avid protection of sexual orthodoxies, another truly stupefying aspect of pseudo-intellectual behaviour is they don’t seem to realise the amount of secret supervision police likely carry out against them themselves in order to verify that they are indeed genuine pseudo-intellectuals suitable for participation in illegal extrajudicial punishment, and would not dream of doing the right thing and go straight to a judge or independent police monitoring body to complain about the illegalities of the police! In sum, extrajudicial punishment constitutes a rejection of Western modernity and liberalism, and Western intellectuals who play any part in it are a rejection of themselves.

In the absence of rule of law societies, police state tendencies can thrive. In my experience with the Norwegian police, an apt parallel for those police units that engage in extrajudicial punishment operations is the Islamic State terror organization (Daesh). Organized crime units in countries like Norway and the IS organization are so similar in their principles – if not their precise modalities – that terms like “Daesh within” are highly appropriate. Exactly like in the case of IS, Norwegian police, officials working for organized crime units have in my case declared themselves judges in an ad hoc fashion without having the slightest formal credentials to justify their lawless behaviour. Like IS, they do not care what the law or the court say; rather they make up their own rules and implement them as judges, jury and executioner in a single institution. In my case, the persecution of a member of an identifiable sexual minority by Norwegian police is comparable to the persecution of gays in areas of IS control, with targeting simply because of sexuality and sexual orientation rather than a specific crime.

Of course there are differences of modality between IS and Norwegian police. IS extrajudicial punishment tends to end brutally and fast, with literal decapitations frequently the outcome. But individuals can also be destroyed more slowly, as in my case with an operation lasting for four and a half years, involving expulsion from my home in Oslo, removing me from my job at the Norwegian Institute of International Affairs, and finally openly interfering with my attempts to find new gainful employment. And when the destruction of an individual is the same underlying motive, consider also some of the stunning structural parallels. Take the widespread employment of children in punishment operations, the strictures on unusual sexual practices, and the medieval ethos of public exposure of vaguely defined evil-doers. All of this echoes common extrajudicial or quasi-judicial proceedings in areas under IS control. The organized character of the attack and the targeting of identifiable members of a minority group and the deprivation of one or more of their fundamental human rights clearly satisfy the definition of a crime against humanity as it is described in all relevant legal texts and conventions.
In short, when sexual intolerance in the general population gets married to state-sponsored extrajudicial punishment it becomes very difficult to describe the structural differences between our own societies and that of Caliph al-Baghdadi. The irony of my case is that one of key strategists in in the organized crime unit of Oslo me that targeted me was eventually jailed and is still under investigation for very serious crimes of corruption and drug dealing in Norway, yet his juniors continue to carry out other aspects of his “untraditional” repertoire against my photography abroad, with the full support of the Norwegian government. This officer was eventually himself targeted not for his role in developing extrajudicial punishment methods, but for suspected involvement in common drug crime. Such crime may still represent a red line for police units in desperate need of sacrificial lambs to cover up their own widespread human rights abuses.

In this way, my case speaks volume about the medieval and premodern character of our supposed modern society and the fictional nature of modern liberalism. How can this terrible situation and the acute threat to our democracies and Western way of life be best rectified? The degree to which extrajudicial methods have become widespread differ from country to country. In places like Norway and New Zealand, these practices are concentrated in so-called organized crime units that can be targeted for prosecution and replaced by new forces. In the case of Norway, though, it will be imperative to restructure the entire judiciary, which in comparative perspective is currently dominated by the police to an unusual extent, probably acting as a permissive factor conducive to the widespread use of extrajudicial punishment. In others countries, like the Netherlands, the problems seem more widespread and more comprehensive reform of the entire police is needed, perhaps in the direction of demilitarization and building a new cadre of public safety assistants.

What must be clear is that in a rule of law society there simply is not much space for what police like to euphemistically describe as “disruption methods”. Once such methods get individualized and targeted, they will almost automatically violate the presumptions of innocence, habeas corpus and the ban on extrajudicial punishment, three of the most fundamental principles on which our democracies rest. Individualised disruption methods are the lobotomy of policing – popular and widespread but deeply wrong and completely unacceptable from a democratic point of view. Practitioners of such methods must be approached in the same way that practitioners of lobotomy were approached in psychiatry and police must get back to its primary role as an instrument of transportation between society and the courts, which are the only place where justice is legitimately served. Whenever police strays from that basic role as a transportation agency between society and the courts – and in practice usurps the role of the latter – democracy is under threat. It is to that basic role the police must return in order to continue to serve as a vital foundation of our liberal democracies.

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The Federalism Dimension in Yemen’s Draft Constitution

Posted by Reidar Visser on Tuesday, 20 January 2015 18:40

After having been leaked for several weeks, a draft proposal for Yemen’s new constitution has finally been officially published online. Among other things, it offers insights into the ongoing struggle about what state structure Yemen should have in the future, with important parallels to similar processes in Iraq and Libya.  The draft constitution defines Yemen as a federal country, with key questions relating to the demarcation of federal units, as well as the division of power between the centre and the projected regions.

As far as administrative divisions are concerned, the draft (article 391) defines Yemen as a country of six regions, of which four will be in the north and two in the south (Aden and Hadramawt). Subunits of the regions are listed, meaning that boundary demarcation will be a relatively minor issue. Additionally, the cities of Sanaa (capital) and Aden (commercial special area) will have separate statuses. The partition of the north into four separate subunits is known to have prompted strong objections from the Shiite-leaning Houthi movement (which senses it will be left short-changed in a way that is not commensurate with its recent military successes) but is in line with previous UN-sponsored proposals.

In this way, the Yemeni draft goes further than the Iraqi constitution in presenting a fully-fledged federal map where the entire country is subdivided into federal regions from the outset. There are also some checks and balances regarding territorial representation at the central government, including provisions for 40% representation of the two southern regions in the first parliament (article 139) and a requirement that senate decisions must enjoy support of at least a third of southern senators (article 143). The president (who, unlike Iraq, will be the main executive) and his deputy are to be elected on a single list representing more than one region (article 180), though the powers of the deputy president are not defined beyond whatever the president decides (see article 194).

The most important issue concerns division of power between the different levels of government. The Yemeni draft is unsatisfactory in this respect, exactly like the Iraqi constitution that was adopted in 2005, and arguably a lot less clear than the recently published Libyan draft constitution. The problem is the way in which the concept of residualism is tackled. In most federations, division of power is defined by a list of powers that are reserved for either the centre or for the subunits exclusively – with everything else (the “residual”) by implication being reserved for the other. There may also be a specific list of shared powers. However, in the Yemen draft constitution there are at least six points related to this. Firstly, there is an enumeration of powers for the central government. Secondly, there is an enumeration of powers for the regions. Thirdly, there is a list of powers for subunits within the federal regions. Fourthly, there is a list of shared areas of government between the centre and the federal regions. Fifthly, there appears to be an attempt at establishing residualism in favour of the regions for anything not specifically mentioned at any level. Sixthly, provision is clearly being made for special autonomies for the two cities with special administrative statuses (Sanaa and Aden) but there is no specification of their exact powers.

As for those powers that are mentioned as exclusive powers of the federal government, beyond the rock-bottom minimum of the likes of weight and measures and external defence, there is national electricity provision as well as “national education”. Both are examples of things that are constitutionally not the exclusive powers of the central government in Iraq but are nonetheless directed from Baghdad in practice. “Shared competencies” between the federal government and the regions include policy areas that are less contested like youth, women’s affairs and sports. On the other hand, a noteworthy item among the powers reserved exclusively for the regions  (article 337) is the right to sign deals for trade and investment. But other “exclusive” areas are less exclusive in reality. For example, confusingly, for both education and environment, a distinction is made between national and local policy, meaning very critical demarcation issues are left for later.

Beyond this, article 338 outlines competencies of subunits in the federal regions (wilayats). This is confusing, especially because there is sometimes no clear specification of whether policy-making or simply the provision of services is intended, for example when public services including water, gas and electricity are mentioned. There is also a contradiction in the way in which powers of subunits of federal regions are already defined by the drafters of the constitution. This  leaves very little room for meaningful content in the stipulated new constitutions of the regions.

On top of this, article 341 seems to establish the principle of residualism in favour of the regions for whatever competencies are not enumerated specifically for either the central government or the local subunits. One might think that oil and gas could be one such residual area but that is not  the case. Instead, separate sections (articles 357 and 387-90) address energy issues, but only by way of generalities, leaving the designation of revenue distribution and the management of the oil sector for future legislation. With vague concepts like “a just (adila) distribution” the Yemeni draft constitution offers even less in terms of guidelines than the hapless Iraqi one from 2005, and much less than the relatively clear Libyan constitutional draft that was released recently.

In sum, the long-winded Yemeni draft constitution provides less clarity than the often contradictive Iraqi constitution of 2005, and much less than the Libyan constitutional draft. With the military situation unfolding rapidly, there is not much in this document that key players can look to in order to save the situation and bring it back to the political track. Quite the contrary, it has been suggested that fury simply over the proposed administrative divisions and the six-way federal scheme was a contributing factor behind the recent moves of the Houthis against the Yemeni president.

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Federalism and Decentralization in Libya’s Constitutional Proposals

Posted by Reidar Visser on Thursday, 8 January 2015 14:48

Followers of Iraqi politics in the post-2003 period and the ongoing debate about federalism will likely see parallels to the way the concept of federalism has made its way into two other ongoing transitional processes in the Middle Eastern region: Those of Yemen and Libya. Whereas the political complexities of those transitions are too immense to be discussed by someone who does not specialize in the politics of those two countries, constitutional drafts are emerging that make for some interesting surface comparison with the way federalism has been applied and continues to evolve in Iraq.

As far as Libya is concerned, a patchwork draft constitution was made available in late December 2014. Consisting of several sub-documents on matters like administrative division, organization of the judiciary, transitional justice, independent commissions, finance and natural resources, it can hardly be considered a complete constitutional draft. Also, on some subjects there are two competing proposals, again stressing the incomplete nature of the emerging charter. But at least some hints about the prevailing trends inside the constitution-writing committee are provided by the publication of these documents.

On administrative structure, there are two papers. Reflecting the longstanding polarization in the Arab world between competing visions for state structure, there is one paper featuring decentralization and one paper using federalism as point of departure.

On closer inspection, beyond terminological issues (“regions” or aqalim versus “governorates” or muhafazat, literally the same as in the Iraqi constitution) the differences between the two papers on state structure are less than one would think. Structurally, there is of course some difference, since the federalism position outlines a tripartite Libya consisting of Tripoli, Cyrenaica (Barqa in Arabic) and Fezzan, largely consisting of historical divisions that were also the chief organizing principle during Libya’s past existence as a federation in the 1950s and the 1960s. Conversely, the paper advocating administrative decentralization within a unified state sets out a map of 32 governorates. Most of those units are corresponding to Libya’s administrative map of 2001 which had the same number of administrative units before some mergers ensued in subsequent years. Provision is made for a cabinet decision on exact administrative boundaries, suggesting that at least some demarcation ambiguities remain. But unlike the Iraqi constitution – a Spanish-inspired hybrid of established regions (Kurdistan) and potential regions (elsewhere) which has also been suggested for Yemen – there is no suggestion that future federal regions in Libya will emerge based on popular initiatives. Whichever version is adopted, it is assumed that the administrative structure of Libya will be decided top-down, by the constitutional committee itself.

As for the division of power between the centre and the subunits, the two papers are in fact surprisingly similar. Unlike the Iraqi constitution, these proposals keep unspecified powers as the domain of the central government under the principle of residualism, with only the powers of the administrative subunits being enumerated. Most local services are in both papers described as the powers of the subunits, including in fields like agriculture, health and local police. However, unlike the situation in Iraq, some of the weightiest spheres of government including oil and energy, general security including the military and most education (not higher education) are implicitly kept for the central government to administer. In so doing, the Libyan proposals at least offer greater clarity than the Iraqi constitution in terms of demarcating responsibilities for key areas of government.

Also unlike the Iraqi constitution, the question of dividing energy revenue is tackled head on, with a specific formula distributing income with 30% to the governorates according to population, 30% to the governorates on an equal basis, 30% to the central government, and 10% to the producing subunits. The last arrangement echoes the Iraqi petrodollar arrangement for producing governorates that has yet to achieve explicit constitutional confirmation.

Whereas the two papers on state structure are positive steps as far as clarity regarding division of power is concerned, evidence of lingering ambiguity can be found in the remaining papers meant to form the whole of Libya’s constitutional draft. In these papers, tensions relating to the federalism controversy continue to be manifest. In the primary document regarding the relationship between legislature and executive power, there seems to be a working assumption that a federal system will be adopted, since a stipulation of equitable distribution between “the three geographical regions” is included as basis for the formation of the country’s new senate. No special federal formula is iterated for the first chamber or the executive. Whereas this could be normal also in a federal system, other quotas of a non-territorial nature are referred to (ethnic minorities being specifically mentioned alongside the vaguer “components” – sharait and mukawinnat).

Similarly, the paper on resource management is partially compatible with the federalism/decentralization papers as regards revenue sharing, but does not overlap entirely. For example, there is a stipulation that producing “areas” (manatiq, which could be anything but sounds like something quite local) should get 10% of the proceeds and “neighbouring areas” (similarly undefined) should have 3%. The latter stipulation would seem to be an attempt to micro-manage internal affairs of a potential autonomous federal region.

The paper on the judiciary does not seem to relate to the federalism at all. For example, it does not include much in the way of guaranteed representation in the constitutional court on a territorial basis.

And that is pretty much it. Not much to write about and many blank spaces as far as the detailed workings of federalism are concerned. However, the Libyan drafting committee is to be congratulated on its efforts to achieve greater clarity regarding the division of power between the centre and the provinces than what has emerged in Iraq. Still today, almost 10 years after the adoption of the post-Baath constitution in October 2005, Iraq is struggling to define the relationship between Baghdad, current and future federal regions, and ordinary governorates. The decision by the new Abadi government to withdraw a legal challenge to far-ranging revisions of the provincial powers law passed by the previous parliament in 2013 really does nothing to clear up the situation: Symptomatically, the move was coupled with an initiative to introduce revisions to the revised law. By comparison, these Libyan papers offer at least a modicum of clarity as regards the intended division of power between the centre and the provinces.

The bigger question, of course, is whether something along the lines of this draft stands any change of popular democratic approval in the current chaotic conditions in Libya. If the draft converges in the direction of a decentralized system that retains central control of overarching sectors, political currents of a far more radical nature, including pure separatism, are proliferating on the ground, especially in the eastern Cyrenaica region. Again compared to Iraq, Cyrenaica arguably has a more dominant role in Libya’s oil production than Kurdistan has in Iraq, making the question of what will be acceptable in terms of a federal deal potentially an even more contentious issue. So far, the Libyan constitutional committee is offering far less to the provinces than the Iraqi committee dominated by the Kurds and one of the Shiite parties (SCIRI) did in 2005. All in all, it could offer a more viable formula for a unified state, but it could also prompt so strong reactions that the constitutional process itself gets aborted and separatism prevails.

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Groundbreaking Iraq Supreme Court Ruling on the Law on MP Replacement

Posted by Reidar Visser on Tuesday, 16 December 2014 20:55

Today, the Iraqi federal supreme court issued a press release indicating the court has changed its interpretation of the principles relating to vacant seats and replacement issues in the Iraqi parliament.

The ruling itself is not yet available on the supreme court website, but there is sufficient detail in the press release to gain an impression of the change that has arisen. In essence, for the first time, the court stipulates that the number of personal votes achieved by candidates in the last general election will decide their eligibility to replace MPs that vacate their seats for whatever reason (normally getting a ministerial job, or due to ill health or death).

It should be stressed that the “correctness of the membership” of the Iraqi parliament (sihhat adwiyat) is decided by the Iraqi parliament itself as a court of first instance, with a two-thirds majority. Only in those cases that are appealed does the court system and the law come into play, meaning that there have been a significant number of cases where MPs continued to hold their jobs because no one appealed their (illegal) possession of seats to the supreme court. But to the extent that appeal cases have transpired, only two legal criteria have hitherto been enforced by the supreme court: The replacement must come from the same governorate and same political bloc (kutla – electoral list does not suffice) as the MP that is being replaced. These principles have been stressed in rulings where a replacement was attempted from a different governorate or a different kutla, but at no time have considerations relating to the number of personal votes been part of the legal reasoning. Indeed, in one of the rulings the court explicitly says replacement is governed solely by the law on deputy replacement that dates back to 2006, before the personal vote system had even been adopted.


Ruling 100 of the Iraqi federal supreme court from 2011 stipulating the law on deputy replacement as the legal basis for replacing MPs

Today, however, personal votes are being used to disqualify a replacement candidate who was approved by parliament but had less votes than someone else from his kutla in the same governorate. According to the court, this has been done with reference to the revised electoral law being “most in conformity with the Iraqi constitution”.

This interpretation by the court seems quite radical for a country with a strict civil-law tradition, since words such as “replacement” and “membership” don’t even occur in the electoral law, and since the replacement law which outlines criteria for governorate and kutla (but not personal vote) is still in force. In this way, the ruling seems to be of a rather innovative variety, similar perhaps to a previous ruling which decreed that “principles of democracy” dictated Iraq must change from the absolute remainder principle to the Sainte Lague method as basis for its electoral law.

Given the politicized nature of the Iraqi judiciary, it makes sense to ask about possible political pressures behind this latest decision. What happened was that Adnan al-Zurfi, a Najaf politician who has been in and out of alliances with former PM Maliki over the past years, returned to his job as Najaf governor after having been elected MP, whereupon he promptly awarded his vacant seat to his own brother. The Iraqi supreme court is now clearly acting against the Zurfi family and its powerful Najaf governor. Whereas it is good to see the Iraqi supreme court apparently standing up against rampant cronyism in the country’s political life, the theoretical parameters of this latest ruling are sufficiently detached from actual legal texts that it also raises questions about the court’s professionalism and overall orientation. A more democratic process would have been achieved if the Iraqi parliament itself took the trouble of updating the law on candidate replacement to reflect the personal vote system.

Posted in Iraq parliament membership, Iraqi constitutional issues | 1 Comment »

After the Rise of ISIS, Will Iraq’s Shiites Secede?

Posted by Reidar Visser on Friday, 31 October 2014 15:11

As Iraqi Shiites celebrate the holy month of Muharram and its key holiday of Ashura (4 November), it can be argued that radical sectarian mobilization among them has risen to a level unprecedented in modern Iraqi history since 1927, when a series of episodes prompted calls among the Shiites of Iraq to form their own separate state. This year, too, visions focusing on the possible separation of the Shiite-majority provinces of Iraq as a separate political entity are back on the agenda.

The last time such ideas were being considered in an even remote way was in 2005, when Abd al-Aziz al-Hakim of SCIRI launched his scheme for a single Shiite federal entity stretching from Basra to Najaf. It was the first time since 1927 that anything in the way of territorial separation of Iraqi Shiites had received any serious attention whatsoever. However, back then the project was characterized by only fragmented levels of support, with most Iraqi Shiites still speaking in the name of a unitary state. An even more radical movement to separate the south entirely had even less of a support base.

However, following the rise to prominence of the Islamic State of Iraq and Syria (ISIS) in 2014, Iraqi Shiite discourse on the Iraqi state appears to have changed quite dramatically – in the direction of separatist solutions. It is true that some of the talk of a separate Shiite entity, often referred to as the “Sumer” project in a reference to one of the ancient civilizations of Iraq, may have gained extra prominence because of the proliferation of social media, meaning that a wider array of Iraqi Shiite voices are accessible to outside analysts than at any point in history. However, it is noteworthy that also more established political parties among the Iraqi Shiites appear to be warming up to ideas that were considered a taboo just a few years ago. A case in point is the State of Law alliance of former PM Nuri al-Maliki and current PM Haydar al-Abadi. In a first, during Ramadan, a key website supportive of Maliki accorded much prominence to an article that openly hinted at the possible secession of the Shiite areas from the rest of Iraq. Also, changes in the regional environment contribute to a greater push towards separatist  solutions. Iran, in particular, has altered its approach to Iraq in a dramatic way since the emergence of ISIS. In unprecedented ways, it is openly acknowledging and even propagandizing its military support for the Iraqi government through the presence of Iranian advisors among Iraqi military forces deployed on the frontlines against ISIS. The confirmation by the Iraq parliament of an interior minister with a background in the Iran-sponsored Badr brigades arguably gives Tehran more direct influence in Iraq’s security forces than they had under Maliki.

The optics of the Iraqi battlefield look increasingly sectarian as well. In the north-west country almost all the territory recaptured by Iraqi government forces from ISIS are areas associated with Shiite minorities or Kurdish territorial claims. Also recent Iraq government victories in the Jurf al-Sakhar area in Babel, while covering Sunni-minority lands, essentially fall into a picture of wider Shiite consolidation in a core territory from Basra to Samarra.

There are however still some important exceptions to the general trend towards sectarian fragmentation in a territorial sense. This relates above all to Iraqi Sunnis that want nothing to do with ISIS. In a macro perspective this can be seen above all in Anbar, where several key areas including Ramadi still remain outside direct ISIS control. Those who say the quick fall of Mosul is sign that ISIS enjoys general Sunni Iraqi legitimacy will have trouble accounting for the continued existence of pockets of resistance to ISIS among Sunnis in Anbar. If the fall of Mosul to ISIS is proof that Shia discrimination of Sunnis is the underlying cause of the current troubles, then why didn’t all of Anbar also immediately fall? Also at the level of individual politicians, these tendencies can be seen. Provincial councils of Anbar and Nineveh alike continue to operate outside ISIS-controlled territory and repeatedly have condemned ISIS. Prominent Iraqi Sunni politicians like Usama al-Nujayfi have made a point of visiting the Shiite clergy in cities like Najaf and Karbala, which of course is anathema to the rabidly anti-Shiite ISIS.

Beyond this, many of the same historical and practical arguments against separatism that transpired in 2005 remain relevant. The Iraqi Shiites can offer no historical precedent for their separatist scheme, and the link to the old, pre-islamic Sumer civilization has of course nothing more to do with Shiites than with Sunnis (Saddam Hussein was also a huge Sumer enthusiast). And at the practical level, Iraq remains a multi-religious country whose disintegration would likely lead to huge numbers of displaced people, quite possibly creating human tragedies on a scale worse than anything caused by ISIS thus far.

With foreign military advisors of all descriptions pouring into Iraq and the concomitant internationalization of the whole debate pertaining to the future of the country, it becomes doubly important that Western pundits exercise caution when they go about attributing cause and effect in the current crisis. In particular, the notion that ISIS somehow embodies “legitimate Sunni demands” must be rejected. To maintain such a view is not only an affront to the large numbers of Iraqi Sunnis who bravely resist ISIS, often by putting their lives on the line. It also means accelerating a process towards a territorial fragmentation of Iraq that lacks historical basis and points towards an uncertain future.

Posted in Shiite sectarian federalism | 7 Comments »

Additional Ministers Approved for the Iraq Cabinet

Posted by Reidar Visser on Saturday, 18 October 2014 22:02

After a month of wrangling and indecision that extended into the Eid al-Adha holiday, new Iraq Prime Minister Haydar al-Abbadi today succeeded in winning approval for new ministers in his government, including most importantly ministers for defence and interior.

It makes sense to start with the choice of ministers for interior and defence. These important posts were a stumbling block for Maliki’s two cabinets. In 2006, they took  a month extra to decide, whereas in 2010 they weren’t decided by parliament at all, as Maliki continued to control them himself or through acting protegées. This time, the candidate for minister of interior, in particular, had caused controversy. For a long time the frontrunner was Hadi al-Ameri, a militia figure from the Badr organization with particularly close ties to the Iranians, whose candidacy caused uproar among many Sunni MPs who remain critical of his conduct during the previous sectarian crisis period of 2005-2007. Today, Ameri gave way to Muhammad Salim al-Ghabban, who shares his Badr background but possibly is seen as less toxic to non-Shiite MPs simply because he is younger and has less baggage than Ameri. For his part, Khaled al-Obeidi who is the new defence minister, had been a candidate back in 2010 as well, when he was nominated by Iraqiyya but quickly was criticized for having moved too close to Maliki. Maybe that sort of person – a Sunni and former Iraq army officers with ties in both sectarian camps – is the best Iraq could hope for in a time when urgent work needs to be done to reorganize the Iraqi army and make it more resilient against the Islamic State terror organization. Both ministers achieved more than acceptable levels of backing by MPs, with Yes votes from the 261 MPs present reported at 173 (Obeidi) and 197 (Ghabban), which is considerably more than what many other ministers got back in September.

As for the Kurdish ministers, it was probably wise of Abbadi to have them approved before parliament in the same batch as the others. The vote on those ministers include some new portfolios that were not voted on back in September (altogether five: migration, tourism, culture, women, and a minister for state), as well as reshuffling two key portfolios whose allocation to individual Kurdish ministers by Abbadi was not to the liking of the Kurdish political parties themselves: Rosch Shaways thereby continues to serve as deputy prime minister, and foreign minister Hosyar Zebari becomes minister of finance.

The vote in the Iraqi parliament today makes the Abbadi cabinet more complete. It maintains differences from the cabinet of his predecessor Maliki in at least two important structural aspects: It has got security ministries approved by the Iraqi parliament with solid backing, and it remains significantly slimmer, with less than 30 ministers (out of the 9 ministers approved today, 2 referred to the reshuffling of ministries already allocated). Moreover there are few “empty” ministries of state with no other purpose than placating particular party interests. Kurds have improved their representation in the cabinet significantly, and the alignment of personnel to ministries is also more in harmony with the wishes of the Kurdish parties.

It can be said that through these additions, the Iraqi parliament has realistically done what it can in the short term to help the Iraqi cabinet achieve a more solid platform for its battle against ISIS. Major legislative acts such as de-Baathification reform, a senate law, and an oil and gas law, will continue to remain on the agenda for a long time, probably with no realistic prospects for early solution. But it will now be the job of the cabinet and the new security ministers, above all, to lead the Iraqi effort in combating the challenge of the Islamic State on the ground in  Iraq. To the extent that there is a remaining parliamentary role in the short term, it relates to approval of a draft law for so-called “national guard” units that may be formed to supplement the Iraqi army, particularly in Sunni-majority provinces.

Posted in Iraq parliamentary elections 2014 | 8 Comments »

The Controversial Kurdish Ministers in the New Iraqi Cabinet

Posted by Reidar Visser on Friday, 17 October 2014 22:07

Iraqi news reports and public controversy regarding the Kurdish ministers in the new Iraqi government of Haydar al-Abbadi that was seated last September have brought to the fore some of the key issues in Iraqi political culture and behavior in the post-2003 period.

In several Kurdish statements, as well as in press reports that uncritically reproduced those statements, one can get the impression that Kurdish politicians who were unhappy with the way portfolios were distributed to individual Kurdish ministers back in September think they have the right to conduct some sort of private reshuffle, moving individual Kurdish politicians between ministries in accordance with their preferences and ideas about which positions fit which individuals better. It has been maintained that Abbadi did not sufficiently consult with the Kurdish parties in making his nominations before parliament, and there is a desire for change of several key ministries. In particular, the Kurds are insistent that Hosyhar Zebari, the previous foreign minister, should be finance minister rather than deputy PM, whereas Rosch Shaways should continue to hold that deputy premiership. The Kurdish view has been that the swap between those positions could be executed as soon as there was internal Kurdish agreement behind the decision.

Of course, from the constitutional point of view, what the Kurdish parties may think about the allocation of Kurdish politicians to ministries is subordinated to the will of the Iraqi parliament, as expressed in the vote on the Abbadi government in September. Constitutionally, it is immaterial what Kurdish parties or the Kurdish regional president Masud Barzani may think about the issue. Parliament has already expressed its will, and if there are to be changes, these will have to be voted on. The only reason there is a legal loophole for making such changes at all without first going through the formal process of dismissing ministers already voted into their jobs is that the Kurdish ministers have refrained from formally taking the oath as ministers in the new cabinet before parliament.

Accordingly, before any swearing in of Kurdish ministers as per the new allocation preferred by the Kurds themselves can take place, a proper vote in the Iraqi parliament on their candidacies must be conducted. Whether a majority for such a vote is realistic remains an open question. True, one could expect such support for new Kurdish ministers to materialize as part of the general agreement between all the leading Iraqi factions that led to the formation of the Abbadi government in the first place. However, it is noteworthy that voting patterns on the individual ministers back in September featured several protest abstentions and many ministers failed to reach the symbolically important absolute majority mark of 165 (the Iraqi supreme court has insisted that an “absolute majority” means a an absolute majority of the total members of the assembly only in those cases where this is expressly mentioned and therefore an absolute majority of MPs present is enough for minister approval). Accordingly, the Kurdish bloc itself does not have sufficient votes to pass these ministers without the active support of at least some of the non-Kurdish blocs in the Iraqi parliament.

With security ministers still not appointed and indications there may be ministers of state added (one of the reported new Kurdish ministers is just an unnamed “minister of state” to be given to members of a Kurdish Islamist party), the new Abbadi government is structurally looking more and more like the second Maliki cabinet. It is true that the Abbadi government formation process looked cleaner on the surface with no intangible “strategic policy council” and no mysterious “Erbil agreement”. But if there is a multiplication in coming weeks of numbers of ministers with no other purposes than satisfying particular political party interests, some of the assumed differences between Abbadi’s and Maliki’s cabinets could soon get blurred.

The Kurdish stance on its ministers, too, is reflective of the culture of consociated democacy that has crystallized in Iraq since 2003. Essentially, the Kurds think they wield sovereignty within their allotted quota of ministerial seats. That is not a view that is supported by the Iraqi constitution, and one that will be put to the test when the Iraqi parliament gets together to tackle these issues in coming days. A forthcoming decision on Saturday has been expected, but so far there is no formal agenda on the parliament website. What is clear in any case is that any new  Kurdish ministers must be voted on before they can complete the formality of swearing in.

Posted in Iraqi constitutional issues | Comments Off on The Controversial Kurdish Ministers in the New Iraqi Cabinet

The Iraqi Parliament Fails to Approve New Security Ministers

Posted by Reidar Visser on Tuesday, 16 September 2014 18:35

New Iraq PM Haydar al-Abbadi kept his promise to present ministerial candidates for portfolios not included in the recent vote on his new cabinet, but the Iraqi parliament proved uncooperative. As a result, only one minister, for water management, was approved in today’s session. Crucially, all key security ministries remain vacant.

The most contentious nominations related to the defence and interior ministries. With respect to defence, the name of Jabir al-Jabiri, an Anbar politician with considerable popular backing and past ties to the former finance minister, Rafe al-Isawi, has recurred for some time as the nominee of the Sunni coalition in parliament. Conversely, it was something of a surprise that Riyad Ghrayb, a Shiite chameleon who has gone from a past with ISCI to the State of Law bloc and the faction of Hussein al-Shahristani, was put forward in the last minute. Before that, it had largely been thought that Badr would present a candidate, even after their original nominee, Hadi al-Ameri, was found by most other parties to be too unpalatable in such a sensitive position. As late as yesterday, a modification of the Badr proposal was presented in the shape of “independents” that might be acceptable to Badr, such as Ahmad Chalabi and Qasim Dawud. Today, the Shiite alliance held a last-minute meeting before the parliament session without being able to agree internally on a candidate.

There are regional and international dimensions involved, too. It has been suggested that the Iraq interior ministry struggle is a reflection of the contradictive relationship between the United States and Iran in the region as a whole, with Iran backing Badr candidates in Iraq and the United States – finally in possession of some real leverage because of the ISIS threat and Iraqi requests for American military assistance, and tacitly in alliance with Iran against ISIS – strongly objecting to this.

It is noteworthy that during the parliament session today, Abbadi implored the chamber to approve the nominees whereas parliamentarians of the Shiite alliance (whom Abbadi himself represents) voiced opposition to a vote, saying the interior minister at least should be internally approved in the Shiite alliance first. Deputy speaker Humam al-Hammudi of ISCI at one point tried to stop the vote according to the official parliamentary record.

Whereas the voting record hasn’t been tied down to individual MPs or even parties, the patterns suggest that parts of the Shiite alliance may have voted No and possibly that there was a revenge No in the vote on the State of Law nominee for tourism (Ali al-Adib). Interior minister Riyad Ghrayb got 117 out of 245 votes, Jabir al-Jabiri 108 out of 251, and Ali al-Adib got only 78 out of 250 votes. By way of contrast, a Sadrist nominee for the water ministry was approved with a more resounding 162 out of 250 votes. Altogether 285 MPs were in attendance, probably a reflection of the realization that a simple majority could have settled the matter of the security ministers and have them approved if those who were against Jabiri and Ghrayb had simply absented themselves.

Parliament adjourned until Thursday 18 September but it is unclear whether Abbadi will come up with new nominees by then. It cannot be stressed enough that these final components of the Abbadi cabinet are among the most important decisions relating to the new Iraqi government as a whole – and as such far more significant than the plethora of international gatherings that are currently going on in the name of defeating ISIS in Iraq. Experiences from Yemen suggest that airstrikes will eventually hit someone that shouldn’t have been hit. In that kind of context, only a durable political coalition in Baghdad can prevent the situation from fragmenting completely. The absence of agreement on security ministers was a key reason the second Maliki government remained so shaky throughout its term, and it is likely this issue, more than anything else, that will seal the fate of the new, so far partial, government put in place by Haydar al-Abbadi.

Posted in Iraq parliamentary elections 2014 | 7 Comments »

The Iraqi Parliament Approves the Abbadi Cabinet

Posted by Reidar Visser on Tuesday, 9 September 2014 1:40

The new Iraqi cabinet headed by Haydar al-Abbadi has been approved by the Iraqi parliament. Abbadi has 3 deputies and 23 ministers, with some portfolios still not named.

The programme of the new cabinet, approved by 177 votes, is very general. Still, it goes further than past governments in terms of underlining the need for decentralization as well as implementing reform in the Iraqi armed forces. All of this seems to represent recognition of past failures, which at least constitutes a good first step. It seems clear, though, that no major promises have been issued along the lines of the pompous Erbil agreement of 2010. In itself, perhaps not a bad thing. Also the timing of the whole process is admirable, for the first time entirely consistent with the Iraqi constitution.

In terms of ministries, Shiite Islamist parties have taken the lion’s share, including several particularly important portfolios. These include Ibrahim al-Jaafari as foreign minister and Adel Abd al-Mahdi of ISCI as oil minister. In addition to the premiership, the State of Law bloc of former PM Maliki also has the portfolios of health, education and work. Fadila continues to control the ministry of justice. Whereas ISCI was awarded additional ministries, Badr and the Sadrists seem to have only two each, though the Sadrists also control one of the three deputy premier positions. Badr was at one point on the verge of boycotting the entire session after they were denied the interior ministry portfolio. As in previous government formations, the PM kept these portfolios for himself, though promising to present candidates within a week.

Sunni and secular representation is largely by individuals affiliated with the broad coalition associated with current parliament speaker Salim al-Jibburi and previous speaker Usama al-Nujayfi. Together, they hold around 7 ministries, all of them service-oriented (plus Saleh al-Mutlak as deputy PM). The movement of previous Iraqiyya leader Ayyad Allawi, which has remained separate, does not seem to have more than one portfolio.

As in previous government deals, the Kurds have a relatively low number of portfolios, around 3, but these include the heavyweight ministry of finance. They also have one deputy PM as before.

A separate chapter relates to three vice presidents approved today as part of the package. The Iraqi presidency proper is a mostly symbolic position, whose main responsibilities largely end with the successful formation of a new government. The vice presidents have even less power, and it is an ironic sight to now have three major players in the previous term – Nuri al-Maliki, Ayad Allawi and Usama al-Nujayfi – in these sinecure-like positions.

On a legal and constitutional note, parliament speaker Jibburi made it clear during the vote that he intends to follow a supreme court ruling that says “absolute majority” in the Iraqi constitution means “absolute majority of those present” as long as “absolute majority of parliament membership” is not expressly mentioned. After the new deputy premier Saleh al-Mutlak got less than an absolute majority of the total members, Jibburi simply stopped specifying the exact number of votes received, only referring to the fulfilment of a majority of those present. Exactly like in the sessions to vote for parliament speaker and his deputies, though, the votes that were counted, including the approval of the government programme, were in the range of 140-180 Yes votes, out of altogether 289 MPs reportedly present. This seems to indicate that whereas all blocs may have supported their candidates and made a strategic decision to be inside the government, wholehearted enthusiasm is still not widespread.

The international community has largely welcomed the new government as somehow being more “inclusive” than past ones. This is largely inaccurate as far as ministerial appointments are concerned. The ethno-sectarian balance, which seems to be the prime interest to these commentators, remains largely the same as in the Maliki II government. Security portfolios remain unoccupied. Those who care about sectarian balances will also note that the Sunnis have lost the sole “sovereign” ministry they held (finance, now held by the Kurds). What has improved somewhat, though, is the size of the government (it has been reduced in size by at least 25% compared with past governments), as well as the political language emphasizing the need for reform.

To what extent Abbadi means business will be seen over the coming week, when candidates for the key positions of defence and interior ministers have been promised. Maliki in 2010 also issued such promises, only to keep the portfolios for himself or close friends acting as ministers without parliament approval for the duration of his term. That, in turn, formed the basis for many of the accusations of over-centralization and mismanagement of the Iraqi security forces that ultimately prevented him from a third term.

Posted in Iraq parliamentary elections 2014 | 6 Comments »