Bremer Speaks on DNO and Galbraith

In its continuing coverage of the DNO/KRG/Galbraith nexus in Iraq, the Norwegian business daily Dagens Næringsliv has landed a rare interview with the ruler of Iraq in the CPA era from 2003 to 2004, Ambassador L. Paul Bremer. In the interview, published in the hard-copy of the paper on 20 and 21 November, Bremer reflects on Peter Galbraith’s many simultaneous roles in Iraq in 2004, and in particular comments on sovereignty issues related to the signing of DNO’s contract with the KRG.

Bremer – who to a considerable extent has been out of the limelight since he left Iraq and who informs DN that he is currently spending much time pursuing his favourite pastime of painting landscapes – dismisses Galbraith’s pursuits in Iraq as “unethical” and adds that he himself was personally subjected to a two-year ban on business activity in Iraq subsequent to his tenure at the CPA. This characterisation of Galbraith by Bremer is perhaps not terribly surprising given the well-known personal enmity between the two men, and many observers will probably also want to emphasise the multiple ethical questions that pertain to the CPA itself under Bremer’s own leadership and indeed his whole program of using ethno-sectarian quotas as the key for shaping institutions of government in the “new Iraq”. As far as ethics are concerned, what is now happening in the US mainstream media is actually a lot more interesting than what Bremer thinks about Galbraith: An increasing number of leading intellectual forums in the US that used to support Galbraith – including the mighty New York Review of Books – are now following the lead of the NYT in issuing various forms of apologies to their readers for having given space in their columns for Galbraith without at the same time providing full disclosure of his business involvement in Iraq. Conversely, his remaining support base seems to be growing distinctly rural in outlook, and now appears to be limited to angry letters in his defence printed in publications like the Rutland Herald and the Brattleboro Reformer, both based in his home state of Vermont.

Beyond the ethical, the main focus of the DN articles concerns an interesting question about the timing of the contract that was entered into between KRG and DNO back in June 2004. DNO has repeatedly emphasised 30 June 2004 as a key point in time in all their calculations about the legality of their contract in Iraq – the logic being that a contract signed before the transfer of sovereignty to Iraqi leaders on that date would supposedly enjoy a special status in a legal vacuum and therefore be immune against challenges by future Iraqi governments. Apparently in conformity with this logic, DNO notified the Oslo Stock Exchange about its contract with the Kurds on 29 June 2004, and Galbraith’s Porcupine company reportedly came into existence on 30 June. The DN article cites DNO boss Helge Eide with regard to the influence of both Galbraith and the KRG in pushing for a pre-handover contract, clearly showing how the basic intention of everyone involved was to circumvent Iraqi sovereignty.

The problem raised by DN in the interview with Bremer concerns the unexpected change to the date for the handover in Iraq from 30 to 28 June 2004, which at the time was something of a security-related top secret that few others than Bremer and his leading officials knew about. Of course, as Bremer also hints at in the interview, since the transfer of power took place two days early, any sovereignty-focused logic pegged to the expected 30 June date would be at risk once that date was abruptly changed. “We did not tell anyone”, Bremer says in the interview, referring to his agreement with Bush to leave Iraq on 28 June to avoid potential terrorist problems. His description of this is consonant with the account provided on pp. 145–46 of Galbraith’s own book The End of Iraq, which portrays Bremer’s early departure as something that caught everyone by surprise. The implication, of course, is that in theory there could be a problem with the date of the DNO contract, since many of the available documents suggest that it had been planned for a 29 June signature, one day after what eventually turned out to be the actual handover date.

Ultimately, these questions are of greater historical than practical significance. True, it is indeed somewhat conspicuous that DNO has retained 30 June 2004 as such an important feature of its argument to defends the legality of its Iraq operations, and apparently the first reference to the exact date of their contract was only communicated publicly as late as in January 2006 – some 18 months after it came into existence. However, at that point it was given as 25 June 2004, hence before 28 June. Regardless of speculation as to what the actual chronology may have been, it seems safe to assume that documents compatible with that narrative exist, and it would be very hard for anyone to question the real date of the DNO contract in a legal challenge. Additionally, as it turned out, the date for the handover ended up being without any significance whatsoever in Iraq’s 2005 constitution: The only distinction in that document is between contracts signed by the Kurdistan authorities after 1992 and the entry into force of the new Iraqi constitution, which technically did not take place until the seating of the Maliki government in May 2006. If the Iraqi governments under Ayad Allawi and Ibrahim al-Jaafari ever had a theoretical window in 2004 and 2005 for challenging the deal they simply did not use it.

The real problems with DNO’s contract in Iraq are of a different nature than those discussed by Bremer in the DN interview. Above all, they are concentrated in the last section of the very article of the Iraqi constitution – 141 – that is so often evoked by DNO itself in defence of its own position: Pre-2006 unilateral deals by the KRG are valid … “unless they are in conflict with the constitution”. However, while that last part is pretty momentous it keeps getting ignored by DNO. Even if so-called “future oil fields” are not enumerated among the exclusive prerogatives of the central government, a shared responsibility for the entire oil sector is explicitly acknowledged in article 112, and it is hard to see how the bilateral deal between the KRG and DNO can satisfy that criterion for constitutionality unless the DNO contract is submitted to Baghdad for review and consultation. Similarly, the constitutional article (111) on oil and gas ownership stipulates that the oil and gas belongs to “all the Iraqi people, in all regions and governorates”. Again, a production sharing arrangement in which the foreign company holds the right to a substantial share of the oil exported (reported by some sources as high as at 55%) is likely to come under special scrutiny. But above all, it needs to be pointed out that DNO cannot know whether its Kurdistan contract is constitutional. That is simply because the authority for reviewing constitutionality on these matters does not rest with the KRG, DNO, or, for that matter, this blogger! There simply is no point in having huge teams of international lawyers pontificating about the constitutionality or otherwise of the DNO contract, because in any event the final arbiter is going to be someone else – either the Iraqi federal supreme court (in a legal way) or the Iraqi government (in a practical compromise). In other words, all that is certain is that there is uncertainty here. Additionally, of course, there remains the revision clause of the constitution (142) which means that everything in it – including the legality of pre-2006 contracts – can be struck down during the first round of revisions. So far, at least, the tendency in the constitutional revision committee has been towards greater centralised control of the oil sector.

In sum then, the whole idea of a strictly legalistic approach to the DNO contract is of limited value. Legalism may perhaps appeal to someone like Peter Galbraith: Just like Bremer who can go back to painting landscapes, Galbraith can abscond to gubernatorial ambitions in Vermont and enter a multi-million lawsuit against DNO in London. Around the world, there will always be takers for his simple message of ethnic decentralisation as the universal tool for solving political conflict. But left with a difficult situation on the ground are first and foremost the Iraqis, including, importantly, the Kurds – and in this case also DNO and its shareholders. However, what the Kurds and DNO fail to realise is the extent to which the Galbraith legacy has created problems and not solutions for them. Recently, however, this has clarified a good deal as a consequence of Galbraith’s public comments subsequent to the first revelation of his “business interest” in the Tawke oilfield last month, and in particular through his emphasis of the assumed “congruence” of his actions. For example, according to the Vermont newspaper Rutland Herald on 13 November, at a recent public meeting “Galbraith said he had always been supportive of Kurdistan’s self-determination, which meant having control over its oil fields and establishing a Kurdish oil industry.” In cruder terms, oil contracts such as that entered into with DNO could do service as dynamite in a greater vision of Kurdish independence, something which in turn would be “congruent” with Galbraith’s advice and support to the Kurds to seek a maximum of regional power in the 2005 constitution as a prelude to independence. The problem for the KRG and the DNO is that because Galbraith’s prediction in 2006 of “the end of Iraq” failed to materialise, they are now left to pick up the pieces after what amounts to an aborted separatist attempt.

Galbraith’s whole “independence train” for the Kurds was predicated on an incremental tendency of symmetric territorial and political fragmentation in Iraq that just failed to happen. In early 2008 that process stopped as Iraqi Shiites began emphasising their Iraqi nationalism, and ever since Galbraith’s commentary and description of Iraqi affairs have grown increasingly fictitious and irrelevant. So too, of course, have the separatist policies that he supported and helped shape.  Accordingly, instead of taking their cues from Galbraith (who is now presumably basking in perfect “congruence” in Townshend, Vermont)  both the Kurds and DNO would stand to gain a lot from adjusting their policies to the new realities in Baghdad. Above all, this would mean realising that Iraqi Shiites are not particularly interested in symmetrical federalism for Iraq. True, there are Shiite sectarians today, just like there were anti-Shiite bigots during the Baath. But the irreducible minimum on which all parties south of Kurdistan can agree (and something which an alarming number of Western analysts still just cannot seem to get their head around) is a consensus position on Iraq as a unified territorial shell. Today, the real tension in the Shiite Islamist camp is between Shiite chauvinists who pay lip service to the idea of Iraqi nationalism and Shiites who are genuine Iraqi nationalists – and not so much between centralists and separatists (even ISCI now seems to have given up its federalism ambitions, if perhaps somewhat reluctantly). And so accordingly, Shiites will continue to speak in the name of a unified Iraq, hesitate with regard to the formal enshrinement of sectarian identity in the state structure, and stand up for Kirkuk as a multi-ethnic city attached to the central government in Baghdad, and so on. Importantly – and particularly relevant in view of the apparent revival of friendship between the Kurds and Shiite Islamist parliamentarians lately – even during the heyday of Kurdish-Shiite cooperation back in early 2007, that alliance broke down precisely over the question of the oil law and the Kurdish insistence on an exclusive right to sign foreign contracts. Accordingly, in terms of oil policy, it makes sense for Shiite Islamists to focus on boosting production in the supergiant oil fields in the far south where the true potential is (as testified to by the international oil giants lining up to sign technical service contracts there), rather than making painful concessions related to controversial production sharing deals for the comparatively small fields in the north, including those that involve DNO. When Shahristani gets summoned to parliament this should be interpreted as a failure of his tactics in handling the ministry rather than an end to the overall strategy of putting the south first; in fact some of his current detractors in parliament (such as Fadila) are even more vehemently opposed than Shahristani to the whole concept of production-sharing deals with foreigners and independent Kurdish decision-making on oil.

In sum, while the Bremer interview in DN raises many important questions (one that is not answered is whether Bremer actually had the authority to stop the DNO deal if in fact the agreement was entered into during the CPA reign), perhaps both the Kurds and DNO would obtain better results today if they tried to revisit Kurdish aims as defined prior to the arrival of Galbraith, Bremer and the whole CPA. For example, back in 2003, the Kurdish draft constitution for Iraq actually defined a bi-national Arab-Kurdish federation in Iraq in which Baghdad controlled the oil sector. Hence, instead of hinting about suing Baghdad over lost income from oil exports in the summer of 2009 (likely to prove a non-starter in negotiations with the oil ministry and something that will only increase the anger of Iraqis who are already infuriated by Galbraith’s multiple roles in contributing to the design of both the DNO contract and the constitutional framework that governs it), at some point in 2010 after the parliamentary elections when a new  Iraqi government has been formed the KRG and DNO could  try to enter into negotiations with Baghdad about converting their current agreement to a service contract more acceptable to the Iraqi public – a solution that reportedly would still be pretty lucrative for everyone involved and therfore a win-win situation. Many Iraqis south of Kurdistan are hoping that the new KRG government headed by Barham Salih will prove a lot more moderate than the previous one, and that the old scheme of a unified Iraq with a special status for Kurdistan can once more come to the fore as a sustainable political arrangement. Conversely, in their own visions for Iraq, both Bremer and Galbraith ultimately proved themselves to be out of touch with the dominant trends of the country’s politics.

The 2005 Election Law Seen as Unconstitutional; Seat Distribution Key in Doubt

Western media have largely reacted with apathy and/or predictable “primordialist” interpretations to the recent showdown in the Iraqi parliament over the election law. According to this view, Shiites and Kurds secured more seats for themselves; Sunnis complain they do not get many enough.

To some extent, such interpretations are more warranted in this particular case than they have been for a long while in Iraqi politics, since some of the new tension does indeed follow sectarian lines. Lost in the debate, however, is a series of more legally oriented arguments which should be of relevance to any Iraqi, regardless of sectarian or ethnic background or orientation. Recently, Yahya Abad Mahjub, an Iraqi Islamic Party politician of Mosul, pointed out that Tawafuq had earlier complained about the seat distribution used in 2005 to the federal supreme court, and that Mosul supposedly had been awarded “priority” in the next distribution of seats. Whereas the exact details of that legal case remain unclear, at least one other skeleton relating to the 2005 law can now be identified. In a ruling (15/T/2006) dated 26 April 2007, the Iraqi federal supreme court did indeed consider a claim by the Tawafuq bloc regarding the constitutionality of the 2005 election law. While parts of the claim were dismissed (an attempt had been made by Tawafuq to also claim that the 2005 election law, which predated the constitution, was in conflict with the Transitional Administrative Law of 2004), some of it was supported. In particular, the court appears to have concluded that article 15 of the 2005 election law is indeed in conflict with article 49 of the constitution

فأن نص المادة 15 ثانيا من قانون الانتخابات أصبح متعارضا مع نص المادة 49 من الدستور

since it bases the distribution of seats on statistics of “registered voters” and not on the total population. In its “decision”, the court says each part has lost and won a little (technically, the president of the parliament was sued by Tawafuq, and the TAL-related bit of the claim was dismissed). Thus, the legitimacy of the existing parliament would not be affected, but parliament should prepare a new election law in conformity with the constitution.

Now, crucially, the amendment passed in the Iraqi parliament yesterday could be in conformity with the constitution, but the predominant interpretations of it certainly are not! A reading of the first paragraph shows that the “statistics of the trade ministry” are to be used for calculating the 1:100,000 deputy/voter ratio per governorate. What has already been established by the federal supreme court is that those statistics must relate to total population and not to registered voters. But the seat distribution estimates that have generated so much debate in Iraq in recent days are based on 2005 figures which in turn relate to registered voters and not to total population. In principle, they should be useless for calulating new seat quotas, that is, of course, unless there is perfect correlation in all governorates between rates of registered voters and total population.

Whether the language chosen by the drafters of the law in the relevant paragraph is a conscious attempt to avoid censure for a second time by the federal supreme court or whether it is just a case of oversight remains unclear. What does seem evident, however, is that the trade ministry must now produce statistics of the entire population from 2005, and not just refer to registered voters. This is important – and also offers a hope for compromise – since the politicians of Mosul have always claimed that the correlation between registered voters and total population in the Nineveh governorate was weaker than elsewhere in Iraq due to the security situation, with more potential voters unregistered. Of course, if the trade ministry and/or the IHEC chooses to come up with 2005 statistics of the total population that show perfect correlation with the numbers of registered voters, then suspicion will come to the fore again. But the ministry and the elections commission now have a real possibility for averting a second veto and rescuing the elections as long as they choose to act in a genuinely neutral fashion.

The other implication of the federal supreme court ruling is that there really is no fallback position in the 2005 law, since it has already been declared by the highest court in the country to contradict the constitution. So far, the legal arguments from the federal supreme court have not received much attention in the Iraqi public debate, but hopefully they may inform the controversy now expected over a possible second veto.

The Hashemi Veto Backfires, Parliament Ups the Ante

Khalid Shwani (Kurdistan Alliance) and Bahaa al-Aaraji (Sadrist) at today’s press conference subsequent to the vote. Salim al-Jibburi, the Tawafuq member of the legal committee who had been prominent when the previous amendments were passed on 8 November, did not join them

In a dangerous development, the Iraqi parliament has voted 133 against 19 for a new amendment to the election law after the first batch of amendments passed on 8 November was rejected by Vice-President Tariq al-Hashemi. Originally, around 190 deputies had been present when the parliamentary session started this morning.

In their first press briefings subsequent to the vote, the prime movers behind the second amendment – the Iraqi National Alliance (Hakim/Sadr/Jaafari), the State of Law Alliance (Maliki), and the Kurdistani Alliance (PUK/KDP) – have tried to highlight the most palatable aspects of the amendments. The idea of linking the exiled vote to specific governorates (i.e. governorates of origin) is progressive in that the weight of the exiled vote will be more equal to that of domestic Iraqis, even if this solution probably means a logistical nightmare for those tasked with organising the vote abroad, depending on what exact “special procedures” are adopted by the Iraqi election commission. Also, the ad hoc parliamentary alliance that favoured the amendment tried to highlight minor modifications to the procedures for electing the Christian minority seats, primarily in the shape of a single electoral constituency (thought to be a concession to demands by Christian leaders).

The part of the amendment that is not talked about so much by these parties is the real bargain that lies behind it: A reversion to the distribution of parliamentary seats according to the 2005 allocations, with an overall 2.8% annual growth rate reckoned across the country. This replaces the arrangement adopted on 8 November, whereby statistics from the trade ministry would form the basis for a new distribution of seats. The new statistics reflect population movements in the period 2005–2009 and in contrast to the figures used in 2005 relate to total population rather than registered voters. They had been known to Iraqi politicians and the Iraqi public prior to the vote on 8 November, but were officially confirmed only on 11 November. The fact that the trade ministry, dominated as it is by loyalists of Prime Minister Nuri al-Maliki, published statistics that showed the strongest growth in Sunni areas (and especially Nineveh), was taken as an indication that there was a degree of neutrality to them. However, the statistics were criticised by the Kurds for the low growth figures they provided for Kurdistan, and Masud Barzani even threatened to boycott the elections unless they were changed.

That situation in turn created a context in which a veto by Hashemi was always going to be a hazardous proposition. The substance of veto itself is perfectly understandable, and relates to discrimination of exiled voters in the old law that was real and serious. But Hashemi then tried to pretend that it was possible to present a “partial veto” and went ahead with this kind of innovation in a context when he knew that the Kurds were interested in revisiting perceived losses in the seat allocation. As was inevitable, perhaps, the Kurds saw a chance to do some further bargaining over the seat distribution and on this issue rediscovered their old friends in the mainly Shiite Islamist parties, who now care less about the exiled voters than in 2005 and certainly do not see any reason to allow Nineveh disproportionate growth rates in the 2005–2009 period if this can be avoided. As a result – and as the clearest expression of the horse-trading that was involved in this amendment – the updated ministry of trade statistics from 2009 have been politicised and replaced by the old distribution key from 2005 which almost everyone knows has a weaker correlation with the current demographic realities. In other words, Hashemi’s move ultimately backfired regardless of whether he considers himself an Iraqi nationalist or a Sunni first. Yesterday, even Mosul representatives pleaded with him to withdraw his veto, because they saw what was coming.

Unlike the Kirkuk issue which tends to unite groups of different ethno-sectarian backgrounds against the Kurds, the Hashemi veto with its focus on the exiled vote has brought back, at least temporarily, old lines of division in the Iraqi parliament that are more clearly sectarian. It should be added that many nationalists of whatever sectarian description still support Hashemi (for example, Hiwar and Wifaq did come up with a second alternative that involved a separate electoral district for the exiles) , but Shiite Islamists tend to agree with the Kurds over this issue to a greater degree than they do in the Kirkuk question. Ironically, then, with the “new” seat allocation according to the 2005 key, Hashemi is now likely to come under much greater pressure from below for producing a second veto than was the case before the first veto. This time, Mosul politicians will feel that the clock has been turned back to 2005 in more than one sense: Not only is the “new” distribution key a relic from that period, but for the first time in a long while the configuration of their opponents – an alliance of Kurds and Shiite Islamists – is looking more similar to the situation in 2005 as well.

Whatever Hashemi chooses to do, parliament now goes on holiday until 8 December.

Constitutional Disintegration (Part II)

It is a tall order for a non-Arab to challenge the Arabic reading skills of those who have practised this complicated language for all their life. Nonetheless, that is precisely what will be attempted in the following analysis. Hopefully, this kind of audacious third-party intervention can at least serve to highlight the degree to which the whole political and constitutional process in Iraq is now worrying close to a complete collapse because of the ongoing dispute over the election law.

Only one day after the veto of the election law by Tariq al-Hashemi, Baha al-Aaraji (the Sadrist chairman of the legal committee in the Iraqi parliament) and Hadi al-Amiri (ISCI’s head of the security and defence committee) made big headlines by revealing that a letter from Iraq’s federal supreme court supposedly had declared the veto by Hashemi to be “unconstitutional” and therefore void. There were objections to this interpretation from both Sunnis and secular nationalists, but in many Iraqi media outlets the interpretation by Aaraji and Amiri went unchallenged. The next day, the Daawa party even organised popular demonstrations against the veto in places like Basra.

In the subsequent discussion about the veto, the fronts have hardened. Both sides claim the court supports their view. However, one highly important ingredient has been missing: The letter from the court itself.

Here it is: (click to fit window)

The contents of this letter are in fact exceedingly brief and simple. What follows after the introduction is the sense of the court, which is given as an “opinion” (ray) and not a decision (qarar). It refers to article 49 of the Iraqi constitution, and its provision that there should be one deputy for every 100,000 Iraqis, to be elected by secret ballot in a way that secures the representation of all elements of the Iraqi people. The court also cites the aspiration of a 25% female quota. It then goes on to say simply that “the Iraqi constitution does not distinguish between Iraqis at home and abroad; all it stipulates is that all components of the Iraqi population be represented and that the female share of seats should be no less than a quarter.” It then adds, “It is for the Iraqi election commission (IHEC) to specify the [more detailed] electoral procedures”.

And that is all. How can this possibly be construed as a hard and fast ruling about the unconstitutionality of Hashemi’s veto? The foundation of his veto was precisely a worry that there would be discrimination between Iraqis at home and abroad, and if anything it is that sort of discrimination (and not the veto) which is implicitly denounced as “unconstitutional” in the opinion. Other than that, the letter seems to signal a desire of the court not to get too involved in the affair, since it refuses to engage with the veto itself in the decision (the veto is not even mentioned in the “opinion” part of the letter). Normally, Judge Midhat and his colleagues in the Iraqi federal supreme court do little more than citing the constitution in cases of this kind, and the only slightly abnormal feature of this document is the reference to the IHEC (which is mentioned in the constitution, but without any powers being enumerated.)

Nevertheless, a slightly more specific interpretation will be attempted here. There is a focus on non-discrimination of Iraqis at home and abroad, and there is also a focus on the only quota-like criteria in the constitution – for women and population “elements”. A proper election law and practical arrangements will need to take both aspects into account. One possible interpretation would therefore be that it is permissible to seek female and minority representation through quotas, whereas the right of exiles to be represented on par with Iraqis at home (whose inviolability in itself is highlighted) must be secured through other means. In other words, the opinion could be taken to signal “full representation for exiles, but (maybe) not by way of quotas”.

This in turn relates to much of the current confusion concerning the “new election law” and exactly what it is – i.e. what consists of leftovers from the 2005 law, what is in the amendments, and what is left for the IHEC to decide administratively. It is noteworthy that despite what the media says, there is no explicit “quota” of 5% for the out-of-country vote in the amendments. There is a 5% quota for “compensatory” seats from which 8 minority seats will be deducted (the total of seats in turn is not governed by the law but by statistics from the ministry of trade), and in a clause that remains from the 2005 law it is specified that the exile vote will count at the “national” level (so far interpreted by the IHEC as the compensatory seats). But strictly speaking, under the current arrangements the compensatory seats do not make up a fully-fledged “nineteenth” electoral district because they also serve a number of other purposes. First, the minority seats are deducted, and then the remaining seats are used to enhance proportionality at the national level. Crucially, in this process the exiled vote is pooled with all the votes that have already been counted once in the governorates to calculate theoretical party shares in a truly proportional, single-constituency system. In this way, under the current arrangements, quite regardless of the percentage of  “compensatory” seats, exiled voters will still be “second-class” citizen because their vote is counted only once. Conversely,  the vote of the domestic voter is counted twice – at the governorate level, and then at the national level. Only in the latter process is there true equality (and non-discrimination) under the current system.

Given parameters like these, one possible solution that would seem compatible with the view expressed by the federal supreme court would be to let exiled Iraqis vote according to their home governorates, whose quotas of seats in turn would need to be revised administratively to reflect the total of domestic plus exiled voters. This would however introduce the complicating practical factors of using governorate lists for hundreds of entities abroad as well as determining “governorate of origin” for millions of Iraqis abroad. A simpler solution which would also be more just than the current system would be a nineteenth electoral district proper for exiles (instead of linking these votes with the compensatory seats only). Reportedly, some of the compromise proposals by UNAMI go in this directon.

Meanwhile, the process of dealing with the Hashemi veto in parliament is snaking its way forward. No results today though, and as expected the Kurds have formally tried to reopen the debate about seat distribution between governorates, which is not going to make things easier, but which for the moment apparently has prevented a Shiite–Kurdish alliance to re-emerge in full force to send the legislation back again to the presidency in its present shape. There is pressure on Hashemi to withdraw his veto; this has been done in the past, but, again, it is really not a procedure that is described in the constitution. Nevertheless, under current circumstances it seems some kind of bilateral deal between the IHEC and Hashemi about new regulations for the exiled vote in return for a withdrawal of the veto (this would be constitutional if he were treated to a second veto chance first) may offer the best guarantee for keeping the elections on schedule while at the same time satisfying some of the legitimate concerns raised in his veto – not least since the alternative of more parliamentary debate might take a very long time. The wild claims that have been made by Iraqi politicians with reference to the latest opinion by the federal supreme court clearly suggest that a new parliament should be the number one priority now.

Constitutional Disintegration

[Update 21 November 2009 14:15 CET: The Iraqi parliament has adjourned without discussing the Hashemi veto in the full assembly, presumably because an attempt to come up with a consensus reply is going on. There is an added urgency to the situation now, given that this week in Iraq is probably going to be a short one with Eid al-Adha coming up. After that point, there is no more than three weeks’ time before the Islamic new year and Muharram]

Today’s heated scenes in the Iraqi parliament are symptomatic of a more general tendency towards constitutional chaos in Iraq in the wake of the adoption of the elections law on 8 November and the subsequent veto of it – or parts of it – by Tariq al-Hashemi yesterday. At one point, the Sadrist head of the legal committee triumphantly announced that the federal supreme court had effectively vetoed the veto for being unconstitutional; on closer inspection it turned out matters were not so clear cut and the parliamentary speaker, Ayad al-Samarrai has announced another early-Saturday session on 21 November for the legal committee (and, maybe, the whole assembly) to consider the veto, saying there was no contradiction between the Hashemi veto and the opinion of the court.

The core of the problem here is the strong but not very detailed powers assigned to the temporary tripartite presidency council in the 2005 constitution. The presidency council reviews all legislation submitted by parliament; unless all its members agree to a bill it must be returned to parliament within ten days of receipt. This procedure can be repeated once more, but may then be trumped by a three-fifths majority of the parliament. Beyond the timelines and the general consensus requirement, no other specific procedural details are outlined in the constitution.

In terms of its constitutionality, there are two aspects to the Hashemi veto. With regard to the substance matter of the veto, there should be no problem at all. Hashemi protests the low quota of seats assigned for out-of-country voting, aka the “national” and compensatory” seats that will total 5% of the total seats less a minority quota of 8 seats. The specific figure is set not by the law but by the Iraqi elections commission (IHEC) based on ministry of trade statistics, and in practice has recently been stipulated to 8 seats. The constitutional requirement is one parliamentary deputy per 100,000 Iraqis; accordingly, unless one really believes there are less than 800,000 Iraqis abroad, it is very hard to disagree with Hashemi. The minuscule quota of “national” and “compensatory” seats” that is left after the deduction of minority seats is probably the most explicit violation of the constitution that can be found in the amended electoral law, and as such the law should be eminently vetoable. Even Prime Minister Nuri al-Maliki probably agrees that there are several million Iraqis living abroad, and there cannot possibly be anything “sectarian” about such a veto (even if many newspapers, and certainly international ones, have hinted at precisely such a connection).

The real problem concerning the veto concerns a second (and ultimately more practical) aspect – its form. This is an attempt at rejecting only a single article of the amendment to the election law. Through instructing the parliament to revisit only a limited section of the bill, Hashemi is entering unchartered constitutional territory that can easily become something of a quagmire unless there is a disciplined legal committee and strong-minded parliamentary presidency to do the navigation. Add to this the political context of all of this – and especially the fact that the Kurds are seeing an opportunity to press for a few more changes that would enhance their share of the pie, especially through larger minority quotas that could include pro-Kurdish representatives of the smaller communities in the north – and it is easy to be pessimistic about the prospect of an early resolution. If the outcome of all of this is a reversion to the closed list system of 2005 or no elections at all, then the net outcome of the veto will be a negative one for the nationalist forces Hashemi ostensibly is seeking to empower.

If the attempt by Hashemi to restrict the veto to a single article thus seems somewhat problematic, reactions to the veto by Iraqi parliamentarians have been even more worrying and serve to reinforce the impression of constitutional frailty in today’s Iraq. In a strongly worded letter, the second speaker of the parliament, Khalid al-Atiyya, a Maliki ally, today dismisses the veto for being unconstitutional “because it does not refer to a violation of a single clause of the constitution or to the by-law of the parliament”. Atiyya then goes on an on with vague and abstract references to the “will of the Iraqi people” and threats to the Iraqi democracy. But where is the constitutionality of Atiyya’s rejection of the veto? Where is the requirement that a veto be furnished with elaborate references to the constitution? After all, the presidency council is the ugly, omnipotent monster that the elites of 2005 created in with the aim of guarding their own privileges; it vetoes but it does not necessarily have to speak its mind. In other words, the presidency council is not the constitutional court. At any rate, proving the constitutionality of the demand for one deputy per 100,000 voters is exceedingly simple, since the requirement has been spelt out in the constitution itself. Nevertheless, almost all the members of the old Shiite Islamist alliance (UIA) have reacted with fury to the veto today, mostly without providing arguments that truly relate to constitutional aspects. One Maliki adviser even suggested that the veto was unconstitutional because it was not unanimous, which is to turn the whole constitutional provision for the presidency council upside down.

The whole situation inevitably brings up memories of the rather shameful attempt by KDP/PUK/ISCI to use the presidency council in March 2008 to veto the provincial powers law because it set a timeline for local elections (which those parties wanted to avoid). After first having voted in favour of other parts of the law, ISCI along with the Kurds tried to vote down the article that created an election timeline; ISCI subsequently presented a presidential veto that contained criticism of the articles they themselves had voted in favour of earlier! But it was the subsequent withdrawal of the veto that sheds light on the fragile constitutional situation in “the new Iraq”. After an unannounced visit by US Vice-President Dick Cheney the veto was promptly removed without further ado – despite the fact that there is no such “undo” option in the Iraqi constitution.

Whereas a similar desire to move forward with elections seems to exist in Washington this time as well, it is to be hoped that the Iraqis now can find their own way out of the problem. The federal supreme court might be a potential arbitrator; it is currently made up of judges with secular career backgrounds and has previously signalled a certain independence from the powers that be, but it seldom speaks unless the constitution contains specific language of relevance. Today, it reportedly confirmed the validity of Hashemi’s demand for one deputy per 100,000 Iraqis but without settling the issue in a definitive way. Another potentially face-saving mechanism for all involved refers to the extremely vague provision for out-of-country voting that remains from the 2005 law (it just says the expatriate vote will be reckoned at the “national” level), as well as the new stipulation of the amended bill that the IHEC will work out the exact practical procedures. In theory, then, without doing too much injury to the existing bill (and while saving both time and the risk of parliamentary delays), the IHEC should be able to cut a deal with Hashemi whereby new semantics could pave the way for a nineteenth electoral district proper for out-of-country voting (of maybe 20-30 seats), all in return for a withdrawal of the veto. In this way, the expatriate vote could be kept separate from the 5% quota for minority/compensation/national seats while at the same time satisfying the constitutional requirement of 1 deputy per 100,000 Iraqis (which after all is confirmed also in the recently-passed bill). That would, however, require that the IHEC is willing to prove its political independence. Today has above all been about negative knee-jerk reactions from many Iraqi parliamentarians who simply do not appear to be interested in the reasoning behind Hashemi’s veto.

The Hashemi Veto

Observers of political developments in Iraq are at odds to explain the background of today’s veto by the Iraqi presidency council, through Vice-President Tariq al-Hashemi, of the recently-passed Iraqi election law.

On the face of it, the justification of the veto seems clear. It is related not to the controversial issue of Kirkuk but to the quota of seats reserved for the exiled voters. The law adopted on 8 November set aside 5 per cent of the seats in total for so-called “national” and “compensatory” seats. Since this quota will also cater for out-of-country voting and minority seats (and because of the particular distribution mechanism adopted), it will in practice involve a minimum of “compensation” (in the sense of enhancing proportionality lost due to the discrepancies between a theoretical single constituency and the 18 constituencies that will be used across Iraq). And since the minority seats make up half the quota, the remainder of 8 seats leaves the exiled Iraqis – who are estimated at as many as 3 million according to some sources – with a very poor level of representation compared to the domestic ratio of representation and the constitutional standard of 1 deputy per 100,000 Iraqis. Hashemi wants a quota of 15 per cent instead.

The politics of all of this is harder to understand. It is true that Hashemi for a while assumed a nationalist posture, first over Kirkuk, but more pronouncedly later on in the name of the exiled voters with reference to the quota adopted on 8 November. Also, Hashemi this autumn finally left the Sunni-dominated Tawafuq to form his own party and reportedly remains in negotiations with the nationalist Allawi/Mutlak alliance – which in turn has also focused on the quota for exiles as being too low and cited it as a possible objection to the law. Also some other Iraqi nationalists, like Mahmud al-Mashhadani, have welcomed the move by Hashemi. But at the same time, however, certain Iraqi media outlets dominated by exiled nationalists tend to dismiss the attempt by Hashemi to speak in their name, portraying him instead as someone who has worked loyally within the post-2003 system of government in Iraq and with Maliki since 2006, serving as vice-president in a role designed as a “Sunni” figurehead. There are even whispers of him being favoured by Turkey, whose government for the past year or so has spent more energy investing in Iraqi Kurdistan than on making noise about Kirkuk (whose transformation to a standalone federal entity Ankara reportedly sees as a viable solution).

Moreover, it is interesting that the focus of the veto by Hashemi relates to one of the few points in the election bill where the Kurdish parties disagreed with the mainly Shiite parties of the old UIA that helped secured a parliamentary majority. The vote on the size of the “national seats” quota was a split one, with the Kurds originally favouring a 15% quota over the 5% that was adopted by the majority of the assembly. Also, like in 2008, the Kurds wanted more minority seats – a phenomenon that relates to local politics in the Nineveh governorate where the Kurds hope that greater quotas will enable them to promote pro-Kurdish politicians among the Shabak and the Yazidi communities, whose most popular leaders in some cases are anti-Kurdish (especially true with regard to the Shabak), but where bigger slices might create space for pro-Kurdish representatives as well. Additionally, the Kurdish calculation may be that there is still a considerable Kurdish exiled vote. By way of contrast, both Sadrists and members of Maliki’s alliance have criticised the veto today, reflecting perhaps a feeling that the net rate of return to Iraq since 2005 has been greater among Shiites.

What we are seeing in practice is thus a gamble in which Hashemi is basically adopting the Kurdish position, as articulated during the first vote on the bill on 8 November. It is unclear whether this will endear him to the Iraqi nationalist voters in whose name he is seeking to speak (who would probably have been more impressed by a firmer position on Kirkuk). True, an enlargement of the quota to 15% would mean around 45 seats in total and an effective increase of the quota that includes the exiled vote by perhaps some 20 representatives, depending on how the minority quota fares. But the transparency of the exiled vote will be particularly difficult to guarantee given the continued dominance of the ethno-religious parties that won the 2005 elections at many Iraqi diplomatic missions abroad, plus the general confusion about the true number of Iraqi exiles. As for President Jalal Talabani, he first said he had no objections to the law but later expressed sympathy for Hashemi alongside other Kurdish politicians; it is now Hashemi rather than Talabani that will become the focus of the anticipated American displeasure.

Also, this is a gamble in the sense that the spectre of a return to the 2005 election law with closed list (or a constitutional crisis) looms in the background. The bill will now go back to parliament, and although the veto relates to a particular clause, it seems unclear whether debate in parliament will be restricted to that individual item, and whether reaching a decision on that point is going to be particularly easy. Some Kurds have already signalled a preference for an 18 per cent quota, suggesting they see an increase of the “national seats” as being in their own interest. Additionally, the veto comes at a time when the Kurds have protested the distribution of seats between governorates – which is governed by a reference to statistics from the trade ministry rather than by the law as such, and which could open up a can of worms in case it should become the subject of parliamentary debate. This all makes it hard to isolate today’s decision from the conspiracy theory that circulated prior to the adoption of the law to the effect that the Iraqi establishment that won seats back in 2005 are prepared to make any step to defend their own privileges from the danger of enhanced competition that would accompany an open list system.

The bill now goes back to parliament for further discussion. It can be vetoed by the presidency council for a second time, after which point a three-fifths majority in parliament would secure its passage into law.

Football Trouble for Maliki

Hussein Said, chairman of the now dissolved football association of Iraq

It is a story that has been simmering in Iraqi media for months but because of its superficial appearance as a “sports issue” it has not attracted much in the way of international attention. However, since the Iraqi Olympic committee yesterday decided to dissolve the Iraqi football association, there has been growing realisation that the decision also has certain political ramifications.

At heart of the issue is the question of internal elections in the football association. The Iraqi government has been eager to replace the current members, many of whom were sports stars during the previous regime. This is also part of a general tendency in the “new Iraq” to subject civil society and NGOs to government control or semi-control – a tendency of “politicisation” that the football association has vocally protested. However, unlike many other civil society players in Iraq, the football association has the rare asset of an effective international patron that is still prepared to criticise the Maliki government – the international football association or FIFA – and for a long time was able to delay the elections. Iraq now faces the prospect of political sanctions due to its actions, and there have been delays to the commencement of the annual league.

There are clear political dimensions to the case. Maliki allies like Ali al-Adib and the minister of sports have played prominent roles in the onslaught on the football association, also employing the full weight of the sports bureaucracy that has gradually come under government control, including the Olympic committee (previously another bastion of resistance until its membership was changed in 2008) and the sports association. That said, with a couple of exceptions, so far the issue has yet to excite open conflict along party lines inside Iraq. Last August, however, there was talk about another ex-footballer, Ahmad Radi, wanting to run as candidate for head of the football association, which was seen as a possible challenge to the government line (Radi used to be a Tawafuq MP but joined Iraqiyya in mid-October). As for the Iraqi football clubs, their reactions have ranged from enthusiastic support for the government (including demonstrations in favour of dissolution) to somewhat more diplomatic comments from clubs in Mosul and Kirkuk. However, much of the opposition media and especially some of those channels that also cater for exile audiences (for example Baghdadiyya and Sharqiyya) have highlighted the political aspects.

The detractors of the football association say its members had too close ties to the former regime, including allegations about links to Saddam Hussein’s unpopular son, Uday. To many others, these are Iraqis who like millions of others simply found a way of surviving under the Baath. Through alienating this important segment of the Iraqi population with hardliner anti-Baath rhetoric that pretends a big and important segment of the Iraqi population does not exist, Maliki risks undermining the very nationalist credentials that he has sought to develop over the past year.

A Weak Attempt at Rebuttal: Galbraith (2009) Is Contradicted by Galbraith (2006)

The NYT has previously been generous in offering space to Peter Galbraith and may have felt it had some explaining to do to its readers. The above example is from 9 July 2006

“Innuendo.” “Absurd.” “Offensive.” Those are the words employed by Peter Galbraith over the weekend in an attempt to dismiss the charge that he had an impact on the shape of Kurdish demands in Iraq’s constitutional negotiations back in 2005. After a front-page, above-the-fold story in the New York Times last week, the Tawke-gate saga has for the first time attracted the attention of US mainstream media in a big way and Galbraith is gradually becoming more talkative.

Galbraith now maintains that his role for the Kurds back in 2004 and 2005 was that of a mere facilitator who had no impact on the formulation of Kurdish goals and ambitions as such – which in his view means that it was also unproblematic for him to simultaneously have a consultancy contract with the Norwegian oil company DNO, which began operating in the Kurdish areas of Iraq at the time. He has added that the fact that his “business arrangements” were known to the Kurdish leadership meant it was unproblematic for him to sit in on key meetings related to the constitutional process in the summer of 2005. Galbraith stresses that he “did no drafting”.

The fundamental problem for Peter Galbraith is that there exists a detailed published account that tells a very different story. Moreover, this source is authored by someone who was extremely close to those events back in 2004 and 2005 and probably knew a lot about what was going on – Peter Galbraith himself. In his book The End of Iraq, published in 2006, Galbraith recounts in considerable detail how he not only made an impact through shaping Kurdish demands, but also how almost all of his suggestions were verbatim inserted in the Kurdish negotiating proposal of February 2004 that later was to have such a great impact on the Iraqi constitution that was eventually adopted in 2005.

On p. 160 of his book, Galbraith describes his own arrival on the scene in 2003 as follows: “While they had secured support from the Iraqi opposition for federalism, the Kurds had yet to think through some practical issues. What powers would belong to Kurdistan and what to the central government in Baghdad…Who would control the police and security forces? And there was the all-important issue, who would own the oil of Kurdistan?”

Galbraith then goes on to bemoan the “conceptual problems” of the Kurdish leaders before he describes the liberating effect of memos written by himself from the summer of 2003 onwards. His choice of verbs tells the whole story: “I urged”… “Kurdistan should”… “I argued”. Among his demands was the following: “Kurdistan should, I argued, own and manage its own oil resources”. Summing up his contribution, Galbraith remarks on p. 161: “These ideas [referring to his own proposals] eventually became the basis of Kurdistan’s proposal for an Iraqi constitution”. The reader clearly gets the impression that Galbraith’s role was a decisive and even a transformative one – an interpretation that makes sense also on the basis of a comparison with the previous and much less radical constitutional proposal by the Kurdish leadership from 2003 (where in article 59.4 Baghdad was given control of “all kinds of armed forces”, and in article 59.11 the oil sector was similarly described as the prerogative of the central government).

In his own words: Galbraith describes his influence on the constitutional process in Iraq in his book from 2006

Later, on pp. 166–67 of his book from 2006, Galbraith describes how his own more detailed proposal in early 2004 was more or less copied wholesale by the Kurds to form their negotiating position as defined in February 2004. He summarises his paper Special Provisions for the Kurdistan Region of Iraq which is also reproduced in toto in an appendix to the book on pp. 225–29. These proposals – which included the key distinction between existing and future oil fields that would later enable stronger regional influence over new oilfields in the 2005 constitution and which forms the basis for the current dispute between Baghdad and the Kurds over oil – were “accepted” by the Kurdish leadership, and then forwarded to the CPA, “as a submission by the Kurdistan National Assembly”! According to Galbraith, his own proposals became the Kurdish proposal in all its details save for one extremely minor “amendment”: “Kosrat Rasul…wanted to clarify that deployment of the Iraqi Kurdistan National Guard should not only be approved by the Kurdistan National Assembly, but should only occur a the request of the federal government in Baghdad”. All the rest had been penned by Galbraith.

As to the influence of this “proposal” on the constitution of 2005, Galbraith is once more an excellent source. On p. 168 of The End of Iraq, he explains, “Masud Barzani took the initiative to organise a Kurdish delegation and negotiating position that would achieve each objective outlined in their February 11 proposal [which Galbraith had formulated in its entirety] and then some.” Galbraith’s book is also informative when it comes to his own role in radicalising the Kurdish position during late 2004 and 2005, especially on p. 171: “In September 2004, the Referendum Movement organisers [who campaigned for a referendum for Kurdish independence] asked me to meet with them… As we sipped Turkish coffee, we discussed how other independence movements had promoted their own causes. I recalled that at least one independence movement conducted an unofficial referendum on the same day as the country’s general election, setting up informal polling places near the official ones. The Referendum Movement leaders thought this was an interesting precedent but doubted that the Kurdish authorities would allow it. I explained that in a democracy the authorities could not prevent such expression of free speech as long as the organisers did not interfere in the official voting”.  As is well known, the referendum was indeed held along the lines suggested by Galbraith. Not bad for an “adviser”?

In a key paragraph of his book on p. 169, Galbraith summarises the way in which multiple elements of the “Kurdish” proposal of 11 February 2004 actually found their way into Iraq’s 2005 constitution. For example, he writes, “as the Kurds proposed in February 2004 the regional governments have exclusive control over future oil fields.” Note, however, how different this sentence looks if we insert in brackets additional information provided by Galbraith elsewhere: “As the Kurds proposed in February 2004 [entirely on the basis of my own proposal] the regional governments have exclusive control over future oil fields [in one of which I hold a business interest through DNO].” But even though all the information in the brackets above has been confirmed by Galbraith personally on separate occasions (elsewhere in his 2006 book and in newspaper interviews in 2009 respectively), he today dismisses the juxtaposition of the facts as “innuendo” and instead tries  to describe exactly the same relationship using very different words: Three days, ago, on 13 November, he told The Brattleboro Reformer (a local newspaper in Vermont) that “I gave them advice and the end result that they achieved was identical to what was already proposed in February 2004 [emphasis added]”. What Peter Galbraith does not admit in 2009 is what he boasted of in 2006, namely that 99% of the February 2004 proposal was his own work and not that of any Kurdish leader.

Private citizen, access all areas: Galbraith prevented a last-minute discussion about the taxation power of the central government in October 2005 (source: Galbraith 2006, p. 199)

In retrospect, it may seem odd that Galbraith should have chosen to publish a book in 2006 that would implicate him so clearly in an unacceptable mixing of roles in business (DNO), constitutional consultancy (for the Kurds) and Iraq policy advocacy (at home in the United States). However, the book from 2006 was a reflection of its time. Iraq seemed to be heading downhill back then, and Galbraith was probably convinced the country would break apart (as per his suggestion). Accordingly, he was not only extremely forthcoming with information concerning his own role; he actually appeared to be glowing with the pride of a would-be Kurdish T.E. Lawrence. What he failed to realise was that Iraq was a little more resilient than the pessimistic title of his book suggested.

In other respects, there is not much that is new in Galbraith’s latest attempts at rebutting the NYT article. He still has the audacity to suggest that the fact that he informed “Kurdish leaders” somehow exonerated him from any possible conflict of interest! What about the rest of the Iraqis who participated in the negotiations, did they know everything as well? And what about those in the drafting committee who did not belong to KDP/PUK and SCIRI/Daawa and were excluded from the “leadership meetings” in early August 2005, where key decisions were made, and where Galbraith himself participated repeatedly? Iraq’s former ambassador to the UN, Feisal Amin al-Istrabadi has said it best: “You don’t let Firestone draft the constitution of Liberia. You don’t let Shell draft the constitution of Nigeria. We shouldn’t have had an oil company [i.e. Norway’s DNO] drafting the Iraqi constitution.”

Finally, in a welcome development, the editorial board of the NYT has ruled that Galbraith did indeed have a conflict of interest which should have been disclosed when he wrote op-eds in the paper in favour of the soft partition policy in Iraq. This should make it clear once and for all that there is more to this case than the primitive Norwegian “conspiracy” alleged by some Vermont newspapers, according to which the whole affair has been fabricated by all-powerful Norwegian trolls bent on revenge for the Eide/Galbraith dispute in Afghanistan.

Galbraith Was Paid by DNO when He Sat In on Sensitive Constitutional Drafting Sessions in 2005

In many ways, today’s story in The New York Times on Tawke-gate serves to corroborate the account of events already conveyed earlier by Norway’s Dagens Næringsliv (DN). In particular, the impression that it was the Norwegian oil company DNO (rather than the KRG) that awarded a stake in the Tawke oilfield to Peter Galbraith back in 2004 is strengthened in the article, and there are interesting remarks by Abd al-Hadi al-Hassani, one of the few officials close to the Maliki administration who has had the courage to comment publicly on the affair so far. Also, it is refreshing that the NYT, which in the past has given ample space to Americans advocating a soft partition of Iraq, has chosen to publish this kind of critical perspective on one of the leading intellectuals of the soft partition crowd.

Perhaps the single most significant piece of new information in the story is the confirmation that Peter Galbraith, whose consultancy work for DNO in 2004 has previously been revealed by DN, also received payment from DNO in 2005, “throughout the constitutional negotiations in 2005 and later.” On this aspect, Iraq’s former ambassador to the UN, Feisal Amin al-Istrabadi comments to the NYT as follows:  “The idea that an oil company was participating in the drafting of the Iraqi Constitution leaves me speechless”. Istrabadi emphasises that DNO in practice had “a representative in the room, drafting.”

It is often not realised how secretive and closed those final negotiations of the Iraqi constitution in August 2005 really were. A good description has been offered by Jonathan Morrow of the USIP:

“After August 8, constitutional negotiations took place in a series of private, ad hoc meetings between Kurdish and Shiite party leaders – the “Leadership Council,” as it was termed by the international press, or more informally by Committee members, “the kitchen” (matbakh). In its basic form, the Leadership Council consisted of SCIRI leader Abdul Aziz al-Hakim, Shiite Dawa party leader Prime Minister Jaafari, Kurdish PUK party leader President Jalal Talabani, and Kurdish KDP party leader Masoud Barzani. These meetings took place at irregular intervals at a number of private residences and compounds in the International Zone. These were meetings at which the Sunni Committee members had no right of attendance, to which they frequently requested attendance, but were not often invited. The expectation was quite clear: the Shiite and Kurdish parties would agree to a constitutional text, which would then be presented as a fait accompli to the Sunni Arabs, who would be asked to take it or leave it.”

Someone who was admitted to these meetings, however, was Peter Galbraith, the paid DNO consultant and stake-holder in the Tawke oilfield. Again, according to Morrow, “the Kurdish parties were able to invite into the ad hoc meetings experienced non-Iraqi international negotiators and constitutional lawyers, including former U.S. diplomat Peter Galbraith and University of Maryland Professor Karol Soltan, to advance the Kurdish case.”

It seems Galbraith was doing more than just “advancing the Kurdish case”: The Iraqi constitution adopted in October 2005 for the first time establishes a regional role in administering the country’s oil sector, more or less on the lines advocated by Galbraith in a policy paper from early 2004. It is noteworthy that the KDP draft constitution for Iraq from 2003, by way of contrast, accorded exclusive sovereignty to Baghdad in administering the oil sector. Today’s revelation that Galbraith also received payment from DNO, a foreign oil company, when he was sitting in on those sensitive Iraqi constitutional meetings in August 2005 where the regional role in the oil sector was established, takes the whole Tawke-gate affair to unprecedented levels of scandalousness.

The IHEC Publishes the Distribution of Governorate and Compensatory Seats

The revised version of the Iraqi election law only publishes the ratio of deputies per population (1:100,000) rather than exact figures, leaving it to government statistics and the Iraqi elections commission (IHEC) to fix the numbers.

Today, the revised numbers are reported as follows:

Governorate	2005	2010	Change	Percent
Basra	18	24	+6	33
Maysan	7	10	+3	33
Dhi Qar	12	18	+6	50
Muthanna	5	7	+2	40
Qadisiyya	8	11	+3	38
Babel	11	16	+5	45
Najaf	8	12	+4	50
Karbala	6	10	+4	67
Wasit	8	11	+3	38
Baghdad	59	68	+9	15
Anbar	9	14	+5	55
Salahaddin	8	12	+4	50
Nineveh	19	31	+12	63
Kirkuk	9	12	+3	33
Diyala	10	13	+3	30
Sulaymaniyya	15	15	0	0
Arbil	13	14	+1	8
Dahuk	7	9	+2	29
Compensation and minority seats	45	16 (8+8)	-29	-64
Total	275	323

 

These numbers, which are supposed to reflect population increase as well as certain severe underestimates of the population in parts of the country back in 2005, are significant for several reasons. Firstly, the fact that the largest increases include some governorates that are not well represented in the current government (Nineveh, Anbar, and to some extent Dhi Qar, which has always been part of the “under-developed” south) suggests that the system is still capable of behaving with a degree of neutrality, which is a good sign as we approach the 2010 elections (not least after the embarrassment of the “lost” 2004 registers for Kirkuk). The marked increase in Nineveh’s representation was expected, and the weak growth in the Kurdish areas reflect the fact that the 2005 quotas were largely thought to be inflated – a fact that was also mirrored in the earlier debate about the Kurdistan share of the total oil revenue of the country, where the figure of 17% was deemed as too high by the rest of the government but nevertheless agreed as a compromise for the financial year 2009.

Secondly, the figures highlight the degree to which proportionality will be reduced under the new system, since the total number of compensatory seats is reduced dramatically, and since both out-of-country voting as well as minority seats – a new feature as far as parliamentary elections are concerned – will count towards this small quota (effectively meaning the exiles will count for the equivalent of no more than 800,000 domestic Iraqis, which seems to be a very low estimate). This is bound to favour the big parties to a greater extent than in 2005, since a greater proportion of the total of seats will be won in the governorates (where surplus seats are also distributed to winning lists only). Nonetheless, to some extent this will be cancelled out by positive features of the revised law (especially the open list) as well as the fact that the distribution method for compensatory seats was never particularly democratic in the first place (the seats were simply given to parties, whose leaderships decided which candidates should be promoted as winners). Also, local lists that do well in a particular governorate may still obtain representation; it is the small parties that have adherents across the country but fail to obtain representation in a single governorate that lose out (some of them, such as the Communist party, typically campaigned for a single-district constituency for this reason.)