Iraq and Gulf Analysis

Archive for October 16th, 2009

A Closed Assembly Will Produce a Closed List

Posted by Reidar Visser on Friday, 16 October 2009 0:03

[UPDATE 19 October 15:55 CET: It has just been announced that the Iraqi parliament has postponed voting on the elections law until Tuesday 20 October]

The Iraqi parliament has adjourned again for the weekend, ignoring the demand from the Iraqi elections commission for a legal framework for the next parliamentary elections by today’s deadline. That deadline in turn reflected the time needed to make practical preparations for elections to be held on 16 January 2010, the day singled out by the Iraqi federal supreme court as the last possible date for holding new elections within the constitutional framework. For now, there is talk about resuming the debate when parliament reconvenes on Sunday, with a possible vote on Monday.

What is going on here is political theatre of the most despicable kind. In reality, there is general agreement on the broad outline of an elections law with open lists, governorate-level constituencies and proportional representation, with only one real issue of disagreement – what to do with Kirkuk. Many parliamentarians want special arrangements for Kirkuk since it is the only Iraqi governorate where there are allegations of widespread manipulation of the demographic balance in the post-2003 period with the specific aim of changing the political status of the governorate; conversely the two biggest Kurdish parties (the alleged perpetrators of the manipulations) reject this. However, even in this thorny area, a window for compromise has materialised recently through the emergence of at least two constructive compromise solutions. One involves going back to the 2004 voting registers; another the appointment of a committee to scrutinise the existing lists of voters. Either solution would recognise Kirkuk as a special case, but, importantly, without embracing the previous maximalist demands of the opposing factions.

There is however another serious problem. Many of the biggest parties secretly want to keep a closed-list system instead of the new arrangements adopted in the latest provincial elections, so-called open lists. The difference between the two should be noted. It is not, as one of the biggest US newspapers recently suggested, that voters don’t know the names of the candidates on the closed list “for security reasons”! That is misleading:  Candidate names are known to voters under either system and voters can find the names not only of the candidate but also his or her father, grandfather and great-grandfather in publicly available registers. The closedness has to do with the ability of voters to rank the candidates. Under the closed list, this is decided by the parties whereas under the open list voters can promote favourites of their own, even if the party gave them a less prominent position far down on the list. The introduction of this system proved universally popular in the latest provincial elections and the new device was widely used by Iraqis (who promoted many local councillors from non-winning positions), quite regardless of the fact that the Iraqi electoral commission in practice undermined the system by not printing full candidate lists (voters instead had to use tables of correspondence on display in the polling stations). On the other hand, the established parties and politicians are worried about the new system – above all for fear of being deselected.

The only parties that publicly support the closed-list system are the two biggest Kurdish ones. Their formal justification for doing so is the idea that it enhances female representation, which in theory is at greater risk under an open-list system (parties include women on the list according to the quota criteria but voters tend to promote men).  In reality, however, this is mitigated by other quota mechanisms in the existing law at the macro level of seat distribution (apparently including a new element demanding a minimum of three persons on the list, thereby excluding male-only one-person entities); hence in practice the main impact of the closed list is to make it easier for political parties to override voter preferences by nominating loyal female representatives in the noble name of gender equality. In the past, the Islamic Supreme Council of Iraq (ISCI) also favoured this system, but they have been forced to change their position gradually after the Grand Ayatollah Ali al-Sistani began signalling his preference for the open list in July. Finally, the sometimes-heard argument that out-of-country voting requires closed lists and a single electoral constituency is also inaccurate; in fact voting abroad took place in December 2005 (when multiple, governorate-level constituencies were in force) and the problem was solved by pooling the exiled votes for the compensatory “national” seats that are not tied to any particular governorate.

As a result of this development, for the past couple of weeks Iraqi political parties have been trying to outbid each other in a deafening shouting match in support of the open list: Al-qaema al-maftoooohhhha!! It has turned into something of a popular demand with demonstrations across Iraq (the Iraqi Constitutional Party has been particularly prominent), and Sadrists have been spearheading demands for greater transparency with regard to how the parliament treats the issue, including a call from Maha al-Duri for a record of individual votes, protests about electronic voting and demands for a televised transmission of the decisive session to the Iraqi public. The theatrical aspect of this is of course that in reality there is no public opposition to open lists and hence no need for demonstrations. No non-Kurdish party can afford to vote against the open list, and they probably won’t do it either. In fact, even the Kurds have made it clear that although they opposite the open list, it is not a red line (meaning they will not use the presidency to shoot down an election law solely with reference to the list system). But despite this tacit consensus, Iraqi politicians keep pretending the open list is a real issue, turning into a quasi-debate and a pretext for procrastinations while no progress is being made on the only real issue of serious disagreement that exists – Kirkuk. Steadily, the 15 October deadline has gotten closer and closer but parliament has taken a studiously lackadaisical approach, in practice allowing the question of list structure to develop into a trap in which the progressive forces are wasting all their energy. Everyone knows that if no new legislation is passed, the old law from 2005 with the old system of closed lists will be used.

Additionally, there are a host of very minor technical issues that can be relied upon for creating hiccups in case there is no appetite for using a last-minute drama over Kirkuk to kill the new law. Predictably, of course, Iraqi parliamentarians have known about these for months but have consistently neglected them. The fact is that the legal committee of the parliament had readied a draft in July which then came back from the cabinet in September, with Kirkuk as the only major unresolved issue. Nevertheless, two days ago, the legal committee in parliament was flooded with suggestions for modifications of minor points of detail that can only serve as distractions in the final stages of the process. For example, it has been agreed to increase the number of seats from 275 to 310, but some now want to backtrack on that number citing lack of reliable statistics (the Iraqi constitution specifies a demographic ratio for the number of representatives and the increase supposedly reflects population growth). Related to this, the distribution between governorates may typically create minor spats – particularly controversial is the marked increase of Nineveh’s representation, a move perceived by the Kurdish parties as having an anti-Kurdish edge. There are also disagreements concerning the finer details of seat distribution within the general proportional representation (PR) framework, with some calling for formulas that would improve representation for parties that do well nationally but fail to win seats at the governorate level, and the Kurds and the Iraqi Communist Party still calling for a single electoral district for the entire country. (Interestingly, the “Change” list of the Kurds has adopted the majority view of the non-Kurdish parties on list type (open) and election district size (governorate-based), two key issues.) Finally some still want to bicker about candidate age (the draft reportedly has 30 years), and there is the issue of minority seats (currently given as five for the Christians, and one each for Sabaeans, Yazidis and Shabak) which at one point came close to torpedoing last year’s provincial elections law and could come up again.

On top of this, there are at least two parallel issues that continue to complicate the overall picture, if more marginally so. One is the demand for a political-party law, a pet project of the opposition that defines itself in nationalist terms and aimed at putting a focus on Islamist parties that allegedly receive their funding from Iran (presumably though there is also a good deal of financial support from Arab states that would be affected by this). Predictably, perhaps, no revised draft seems to be forthcoming from the government, and it is now probably unrealistic to hope for one to materialise in the near future. Nevertheless, some parliamentarians like to highlight this as a more fundamental issue and may be reluctant to engage in points of detail on the elections law itself as long as there is no progress on what is seen as an “overarching” issue of a  law for political parties. Similarly, the status of the Iraqi elections commission itself has come under increasing scrutiny. The committee chairman, Faraj al-Haydari, used to be a member of the KDP political leadership and has in the past been accused of pro-KDP bias; more recently however the attacks on the commission seem to have reflected disputes of intra-Shiite origin related to the new coalition-forming process, with the Hakim camp and Fadila apparently leading the attack against the commission and Maliki and some of the independent Shiite Islamists close to him defending it. Some may perhaps see this state of affairs as an opportunity for a more radical shakeup of the whole system in Iraq; they should however note that it would probably be unrealistic to hope for international support. UNAMI seems to be at pains to keep the current commission in office, going as far as to warn publicly earlier this week that a failure to do so would delay the elections – something which in turn would create major problems for the Obama administration.

What needs to be realised is that much of this, especially the questions that relate to the elections law itself, are really details in the bigger picture. The finer points of distribution mechanisms within an overall proportional representation framework are the stuff of many a political science career, and it is perfectly possible to debate these issues for years if desired. But one could also choose to focus on the fact that Iraq has already agreed on the largest remainders methods, compensations seats (as a principle at least) and no minimum thresholds for calculating seats, thereby creating an extremely permissive proportional system in comparative perspective, regardless of which particular counting procedures are agreed on. As for the nationalists who remain critical of the system of government defined in 2005, it may perhaps be time to try to take a very pragmatic approach, even if it is possible to identify numerous weaknesses related to a process that does not have legislation on party finances and whose elections commission is not seen to be entirely above party politics. On the other hand, though, the general political climate in Iraq is moving away from sectarianism in the Arab-dominated parts and away from two-party dominance in Kurdistan. That momentum in itself should suffice  to make more Iraqis abandon their lofty orthodoxies and instead engage in the political process (and the attendant possibilities for system reform). One could of course go on forever trying to create an ever more perfect atmosphere for the election, but at a certain point the act of having a poll in itself becomes valuable. (One caveat to this: some drafts of the electoral law have circulated without explicitly mentioning Iraqis abroad, only internally displaced. Even the elections law of 2005 provides for out-of-country voting and hopefully the reason for the omission is simply a matter of oversight in a chaotic draft in which several alternative PR counting mechanisms muddied the picture considerably.)

In other words, Iraqi politicians should get on with it. There is not a single remaining conflict in the elections law that is significant enough to justify a general non possumus attitude and the all too predictable shrugged shoulders and rolled eyes when the process at some point breaks down. It is after all possible to vote article by article before a consensus is reached on the whole package; this was achieved with the provincial powers law and the provincial elections law in 2008 and could be done again. There is of course the problem that according to the Kurdish Islamist politician Sami al-Atrushi, the Kurds will “reject” a vote on different alternatives for Kirkuk, presumably by storming out of the assembly as they have done on several previous occasions. However, there really is no reason why that threat should prevent a vote; after all the checks and balances in the current consociational incarnation of Iraq’s democracy are vested in the presidential veto and not in any demand for a pre-vote consensus in the assembly itself. If President Jalal Talabani really thinks it is worth derailing the elections in order to avoid a compromise on Kirkuk (which after all just involves an extra tier of scrutiny and vigilance in terms of elections monitoring), then by all means let him do so but let it be in full public and with the international community as a witness.

Earlier in the week, Hamid Majid Musa of the communist party exemplified the problem when he complained that his proposals to the legal committee to change the size of the electoral district were not taken seriously enough. He then went on to declare that the elections will not be held on time if parliamentary deliberations go on indefinitely! Precisely.  Why did Iraqi parliamentarians, after having just returned from a mostly unproductive Ramadan season, go on holiday again on 6 October, without reconvening again until 13 October? Why do the sessions of the parliament normally last for just a couple of hours around midday? Why is the assembly often half full, with some representatives away from the assembly for most of the time? Alas, absent some kind of miracle, the only remaining excitement related to the elections law now seems to be the guessing game of which particular issue  in the end will blow up “unexpectedly” to derail a deal and thereby force Iraq to use the old, closed-list system from 2005 – and which unfortunate individual will get the delicate task of calling it a day and making this fact known to the Iraqi public.

Among the least glorious accomplishments in the half-finished revision of the Iraqi constitution is the following little item:

Original text:

“The sessions of the parliament are public”.

Revised text:

“The sessions of the parliament are public, unless the parliament decides otherwise”.

Iraq is a democracy. Unless its leaders decide otherwise.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Iraqi nationalism, Kirkuk and Disputed Territories | 29 Comments »