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.