The Secret Election Manifesto

We are barely a week away from the 7 March parliamentary elections in Iraq, but the electoral campaign just does not seem to be going anywhere useful.

In line with predictions, the Iraqi National Alliance seems determined to keep the de-Baathification issue on the agenda all the way down to the wire. They keep prodding their allies in the governorates to push the issue, thereby perpetuating a climate of fear where few civil servants may feel safe about their positions. Just today, it was announced that 10 professors at the University of Karbala had been singled out for exclusion in the name of de-Baathification. Earlier, it was reported that the all-important South Oil Company – the keystone of Iraq’s oil-based economy – had similarly been targeted for additional de-Baathification. Large numbers of competent professionals that are vital to maintaining decent output levels in Iraq’s struggling oil industry are at risk because of the insistence of the Iraqi National Alliance to push a fear-oriented agenda that was hatched in exile in Iran and is now being rolled out across Iraq.

The dynamic at work here has the hallmarks of sophisticated political bullying, and creates a quandary for the nationalist and secularist forces that are being targeted. If they seek to simply ignore the de-Baathification hardliners, they run the risk of being seen as passive losers. Conversely, if they engage in criticism, the goal of their opponents to keep the issue on the agenda will ultimately be achieved as well, since the debate will simply continue on the same track. Absent any kind of strong international condemnation, it will be exceedingly difficult for those political entities that have been targeted in the de-Baathification process to bring the whole campaign atmosphere back to a more sensible and constructive level.

In this way, the de-Baathification hardliners are able to use their pet issue as a convenient cover for the lack of more coherent political programmes for how to address the important challenges that Iraq will face in the future. What has yet to receive attention, though, is that despite their current uncommunicativeness on more specific political issues, many of the biggest Iraqi parties have in fact already issued a manifesto about where they want to take the country: The final report of the constitutional review committee was put together last autumn with the support of many of the biggest parties, including the Kurdistan list, the Iraqi National Alliance and Tawafuq. This report represents the minimum that at least the majority of the constitutional review committee (and possibly all the members that took part in the last meetings) could agree on. Back in 2007, the work of the committee had run into difficulties over Shiite–Kurdish disagreement about arrangements for the oil sector; what we currently have is therefore a watered-down version where most controversial issues have simply been left aside. For some time, there were even rumours that a vote on this package would be attempted before the 2010 elections, but with the prolonged debate on the election law that particular ambition seemed to gradually fade away. Nonetheless, for a while the document was promoted quite actively, not least by the chairman of the constitutional review committee, Humam al-Hamudi of the Iraqi National Alliance – the number one “de-Baathification list”.

Much of the revisions are entirely useless. For example, there is a new article 3 which states that the “state should strive to achieve peace and growth”, and that “the peace of the homeland is the responsibility of everyone”. There is even a remark in the margin to the effect that this wonderful innovation is a last-minute addition which requires the consent of the whole committee! Among the few substantial changes to the first part of the constitution is the new article on personal status law (now article 58), which removes any possibility for secular alternatives by unequivocally prescribing the use of religious law in this sphere.

The major new addition is the creation of a second chamber in parliament (starting with article 81). According to the draft, this new institution will consist of two members from each governorate (regardless of whether the governorate is organised in a federal region or not), except that Baghdad will have four representatives – this should mean 38 senators altogether. The members will be elected at the same time as the parliament and the sessions of the two institutions will be concurrent; there will also be 5 additional members to be appointed jointly by the president and the premier on the basis of their “expertise” as well as considerations relating to the representation of the “elements” of the Iraqi people (in this context code for micro-minorities).The powers of the second chamber are not well specified, and appear to add further contradictions to the Iraqi constitutional framework. For example, in article 94 the senate is given the prerogative of initiating legislation that is specifically related to the governorates and the federal regions: This provision seems to be at odds with the basic idea of the existing constitution of residual powers for the governorates and federal regions in everything not specified as the exclusive competence of the central government or a shared area (where presumably the existing parliament legislates). More unequivocally, the senate will review laws passed by the parliament and can send them back for reconsideration within 15 days with a simple majority. However, the parliament can adopt the law as long as it first “considers” the grounds for rejection by the senate. In sum, the proposed second chamber is not a particularly strong body, although it certainly carries the potential for creating further hitches in the Iraqi legislative process. Compared to the presidential council that has existed since 2005 but will expire after 7 March it is nonetheless progressive, both in terms of the basis of its membership (popular election in the governorates; no explicit ethno-sectarian formulas), as well as its more dynamic role (providing criticism instead of a blank veto).

Another interesting change is the rules for adopting a law for the federal supreme court, outlined in the new article 125. The new procedure places the initiative for nominating candidates to the court with the premier and the president (again, jointly), and, importantly, removes the supermajority requirement for the passage of a law implementing these provisions (it used to be two-thirds; it is now a simple majority). Also, the law unequivocally provides for constitutional review of laws and constitutions passed by federal regions and governorates, thereby making them explicitly subject to the constitutional requirement for conformity with Islamic law.

Optimists had expected that the meatiest changes in the revision process would come in the definition of the powers of the central government, but it is noteworthy that in this draft hardly anything has changed from the exceedingly weak status accorded to Baghdad in 2005. Rather obvious areas like civil aviation are now formally a central-government prerogative, as are the environment and migration issues. But nothing has changed with respect to key questions concerning the administration of the oil sector.

Instead, article 188 provides the clearest expression of the mindset of the drafters of the revised constitution. In it, the three-man, ethno-sectarian presidency council that will expire in a few weeks is given an extended period of life, stipulated to last until the first senate has been elected (although not more than one parliamentary cycle). In other words, under these arrangements, Iraqis would get at least four more years of formal muhasasa or ethno-sectarian power-sharing, with the concomitant potential of legislative deadlock caused by disagreement between the powerful members of the presidency council. It is perfectly conceivable that this kind of arrangement could lead to further postponement on key legislative projects like those related to the oil sector.

In sum, the parties behind this proposal wanted to strengthen religious law in Iraq, keep Baghdad weak, and perpetuate the Bremerian model of government of oversized governments of national unity and strong presidential vetoes at least until 2015. Today, when everyone talks about “unity” and being a “nationalist”, the draft for a revised constitution may serve as a more faithful manifesto of where parties like the Kurdistan alliance, the Iraqi National Alliance and Tawafuq really want to go. The interesting thing is the position of two of the minority parties on the constitutional committee that are today considered among the strongest candidates for providing the next premier of Iraq: Daawa and Iraqiyya. In terms of getting the political debate back on track, perhaps issues like these could be a useful vantage point for Iraqiyya, which traditionally has had a firm nationalist position on constitutional issues. And what about the Daawa, whose centralism and resistance to power-sharing has sometimes put them at odds with fellow Shiite Islamists? Recent reports from Iraq say that the accountability and justice board is now attacking high-level security officials that have ties to Maliki, possibly with the aim of marginalising him as a future premier; is this the point where Maliki might finally wake up and reverse his position on the de-Baathification disaster?