Iraq and Gulf Analysis

Constitutional Disintegration

Posted by Reidar Visser on Thursday, 19 November 2009 16:38

[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.

20 Responses to “Constitutional Disintegration”

  1. Reidar,
    Even if your optimistic expectations materialize and we get a clean and quick resolution of Al-Hashemi’s national/compensatory seats issue, voting is still tied to ration cards which will in practice limit the participation of expats.
    One positive result is to uphold the constitution: 1/100,000 representation, now it is more important to count the 100,000. We need census.

  2. Reidar Visser said

    Faisal, thanks, I was unsure about what you meant with regard to the link between the ration cards and the expat vote, or have I misunderstood you? As I understand it, a variety of forms of ID were accepted back in 2005, and for pre-1990 emigrants this cannot possibly be a necessary criterion for taking part?

  3. moh said

    What I don’t understand is why the law was passed in the first place, I know the Kurds and Sunni Arabs had reservations after but why AFTER? Is this because they didnt notice it/are incompetent? Thanks.

  4. moh said

    And also considering they’ve been debating the law for months

  5. Reidar Visser said

    Moh, that illustrates the problem in much of the media of reducing Hashemi’s veto to a “Sunni” veto. Those who represent Sunni interests in a more narrow sense in parliament mostly belong to the Tawafuq bloc, which had taken part in preparing the draft in the legal committee. They say today that some of them voted for a 15% quota, but I doubt this is true with respect to all of them. I watched the proceedings on television and although it is very difficult to get an adequate impression of the vote when there is only a show of hands (and the camera people appear to do their utmost to avoid zooming in on individual deputies), I did not get the impression that the vote on that article was a close call (the presidency happily declared an “absolute majority” after the first vote on 5%), and I think it was first and foremost Kurds that originally voted for the 15% quota, plus possibly also some from Hiwar (nationalists).

    In vetoing the law, Hashemi is appealing to Iraqi nationalism more than to Sunni sectarianism. Those who claim to speak for “Sunni” interests in parliament in a more narrow sense expressed happiness with the process before and after the vote, and have only signalled a possible change in their position after the veto by Hashemi was confirmed.

    As for the Kurds, they probably see an opportunity for some further bargaining but did not want to take the lead in vetoing the bill after they had come under a degree of American pressure over Kirkuk.

  6. moh said

    But why would the Kurds want more seats for exiled “Sunnis”?

  7. Reidar Visser said

    The seats are for exiled Iraqis of whatever ethno-sectarian background and the Kurds evidently believe they can still benefit from this segment of the vote. Additionally, Hashemi also re-opened the debate about the exact number of minority seats, where the Kurds hope that a larger cake of seats will provide additional seats for pro-Kurdish politicians among the Yazidis and the Shabak. Under the current, more limited quotas, there would for example be one Shabak seat only, and it would likely be won by an anti-Kurdish Shabak.

  8. moh said

    Thanks Reidar. I read somewhere that parties that fare well at the national level but fail to win seats in any particular province also come within the ambit of “compensatory” seats. Could you explain this a bit further, how does a party perform well “nationally” and not provincially during parliamentary elections?

  9. Reidar Visser said

    That applies to parties that typically have a small number of adherents spread across the entire country. One example would be the Iraqi Communist Party, and arguably there was a similar tendency with regard to the Iraqi Constitutional Party in the last local elections. In theory, you can envisage a situation in which this kind of party just misses the representation threshold in each and every of the 18 governorates (because most of the other parties are “less national” in the sense they are more strongly concentrated in certain governorates). This party can then be remunerated with a seat at the national level instead (that is, if it meets the national threshold of total votes divided by total seats). It should be stressed that in practice, this kind of party profile is relatively unusual in Iraqi politics, and certainly back in 2005 a very small number of the compensatory seats were awarded with reference to this kind of situation. If a similar tendency prevails in 2010 then the “compensatory” seats will first and foremost reflect the out-of-country vote plus the minorities.

  10. Rizg said

    If the legislation is vetoed a second time, parliament can override it with a three-fifths majority – but what are the chances that they’ll get this?

  11. Reidar Visser said

    The chances are slim indeed. Especially since the demand is for a three-fifths absolute majority, i.e. reckoned on the basis of all the 275 members (بأغلبية ثلاثة اخماس عدد اعضائه)

    Which means 165 members. Currently only the parties of the old UIA (around 130 deputies altogether) seem to favour a head-on confrontation with Hashemi. If the Kurds and parts of Tawafuq change their position they could conceivably muster 165 votes, but defections are likely since this is much more than the narrow “Sunni” issue that the Western media talk about.

  12. Rami said

    Hashimi clearly has his own political interests to protect, and those of Ayad Allawi for that matter. More expatriate votes work in their favor. On one hand, it is good that Iraq is working out its disagreements politically rather than violently at this stage. On the other, it is clear that the political leadership is incapable of bridging sectarian differences at the moment. I think that someone like Ayad Jamal Aldin might be able to change that. He seems different than these other guys and has some guts.

  13. Salah said

    What I don’t understand is why the law was passed in the first place,

    Reffer to my comment the prevoiuse post

    Talabani spoken, he saide US prussered to pass the law.

    The seats are for exiled Iraqis of whatever ethno-sectarian background and the Kurds evidently believe

    Reidar agreed as Kurds had big exiled for long time spacailly in sweeden and other surounding coutries.

  14. bb said

    Where can one watch the proceedings of the Iraqi parliament on television? Is it live?

  15. Reidar Visser said

    Bb, the big Iraqi television stations do not ordinarily transmit the parliamentary sessions live but in the case of the much-anticipated vote on the election law amendments almost all of them did. In other contexts, you just need to flip your wat through the biggest channels and hopefully you will find something. The hourly news programmes sometimes have extended coverage of the parliamentary sessions.

  16. Salah said

    constitutional chaos in Iraq

    Reidar, honestly while you put some your blames of today chaos in Iraq on the devil in Iraqi constitution which well known fact that is drafted by Noah and some call it Noah’s constitution , I think Iraqis as such have no hand in today chaos in regards to this matter as such is due the power signed by Noah’s constitution?

    powers assigned to the temporary tripartite presidency council in the 2005 constitution.

    Whatever triggered Tariq al-Hashemi to veto in this matter which very clear and valid argument but were was Tariq al-Hashemi from the Iraqi parliament law rewards the members 8 years pay off and with reward them and their families diplomatic statues passports?

    Why Tariq al-Hashemi did veto that were most Iraq rejected and speaking against that, and its regarded as bribes by Maliki and other big parties to gain supports from the members.

    Reidar, there is another aspect of Hashemi veto which is the unallocated seats that rewarded to biggest & wining parties instead of distributed evelly between all the parties and minorities.

    I think that major obstacle that Hashemi argument when he telling he needed the justice for Iraqi inside and outside to represent and all Iraqi same under the constitution

  17. Salah said

    الهاشمي يؤكد : قانون الانتخابات بصيغته الحالية غير دستوري وهذا هو جوهر النقض

  18. Reidar Visser said

    Salah, I think you give Noah Feldman a little more credit for the 2005 constitution than he really deserves (he left Iraq at some point in 2004, but I think he did play a role in the TAL). The key decisions were taken by the Kurds and ISCI, see for example the report by Jonathan Morrow at (You will probably disagree with what he says about federalism, but he does provide a good overview of the process in August 2005).

    As for the point about distributing remaining seats to all entities instead of just winning entities (at the governorate level), I agree that it is worthy of attention but in the overall picture please remember that Iraq under any circumstances will get a very reasonable and permissive PR system and there really is no hidden mega conspiracy against the small parties – it just means the forces that challenge the system need to get their act together and organise better. I would say that on the balance, from the point of view of democratic development, this latter point on its own does not merit a veto if the side effect will be a reinstatement of the closed list system.

  19. Brent said

    Reidar, Do you think that the new seat allocations based on the ration cards will be under scrutiny by the fact that it shows population increases of more than 5% anually? Some seat allocations have increased by 60%.

  20. Reidar Visser said

    Indeed, the Kurds have already reopened this dossier. Note however that an additional explanation for the discrepancies vis-a-vis 2005 has emerged. The 2005 allocation of seats was based on registered voters. The new statistics relate to total population which is a different matter.

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