Constitutional Disintegration (Part II)
Posted by Reidar Visser on Sunday, 22 November 2009 16:25
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.
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