Iraq and Gulf Analysis

Iraqiyya Challenges the Jurisdiction of the Federal Supreme Court

Posted by Reidar Visser on Wednesday, 31 March 2010 12:51

In its reaction to the recent opinion by the Iraqi federal supreme court on the permissibility of creating post-election alliances in order to achieve the position as the “biggest bloc in terms of numbers”, the Iraqiyya alliance headed by Ayad Allawi has challenged the jurisdiction of the court itself.

Strange as it may sound, the challenge is in fact quite plausible. It relates to yet another aspect of incompletion in the post-2003 framework of government in Iraq: While the constitution adopted in 2005 does create an overall framework for the federal supreme court, a number of central issues – including the key question of the composition of the court – have been left to be hammered out by future legislation. Not only that, the sensitivity of the issue of the court’s composition was considered to be such that a provision was made for a special majority (two thirds of the parliament) for the relevant bill to pass. Needless to say, no law has seen the light of day so far, and the closest Iraq has to a supreme court are relics of the CPA period. These are namesakes of the institutions outlined in the constitution, but they are not identical: Rather the parameters of their operation are defined in separate legislation passed in February 2005, i.e. several months prior to the adoption of the constitution.

Crucially, the prerogatives of the court that were defined in February 2005 are narrower than those adopted in the constitution. Whereas interpretation of the constitution was indeed part of the latter (which clearly foresaw a federal supreme court functioning as a constitutional court proper) this power is not enumerated in the legislation that was passed in February 2005. In other respects there are many similarities, including the authority to settle disputes between the various levels administration in Iraq as a federal state (regions, governorates, sub-governorates, etc.), as well as reviewing the constitutionality of laws that are passed. But while some may see the latter as an implicit recognition that the court does exercise a degree of constitutional interpretation (how could it otherwise perform constitutional review?) it does seem significant that the task of interpreting the constitution is mentioned specifically in the description of the (projected) federal supreme court in the constitution, indicating that this new prerogative is intended to go beyond what had been stipulated in the February 2005 legislation. It is of course problematic that even though much of the work of the federal supreme court has indeed focused on relations between the various levels of government (as mandated by the February 2005 rules), in some cases it has already exercised a degree of constitutional interpretation of the kind that is now being challenged by Iraqiyya.

As for the substantive issue at hand one may sympathise with either side, depending on whether one wants to take a scriptural reading of the constitution or emphasise democratic values more broadly. From the technical point of view, it is true that the constitution is vague by simply identifying “the biggest bloc in parliament in numerical terms” as the force that is to be charged with forming a government, upon request from the president. In practice, during the 2005–2010 period, the definition of a “kutla” has indeed proven to be elastic, since big “kutlas” have become smaller (most notably the United Iraqi Alliance, which today is listed in parliamentary documents as the Sadrists, Fadila and the rump UIA), and some smaller once have grown (for example the breakaway ex-Iraqiyya deputies that eventually amalgamated into an entity of their own). From the point of view of democratic theory, though, the idea of post-election coalition-forming comes across as somewhat more suspect, since it would involve a great amount of backroom deals in which the electorate had no say at all.

Some will perhaps object and point out that such post-election deal-making is after all a natural part of the democratic process in many countries, and also that the idea of the biggest bloc in parliament forming the government is not necessarily universal. But there are key differences with the Iraqi situation. In mature democracies, coalition scenarios are often part and parcel of the election campaign; in Iraq, by way of contrast, almost nothing was done by the parties to communicate to the electorate their visions of possible post-election deals. Similarly, while the president in many democracies is given a certain leeway to evaluate the prospects of government viability more broadly before singling out a PM nominee (instead of automatically giving the job to the biggest bloc), the problem in Iraq is that the selection of the president is part of the same electoral dynamic that produces the parliament, and whoever holds the position is therefore less credible as an independent broker in this kind of process.

Meanwhile, if there is no legal arbiter in this matter, the best way to avoid a violent showdown over the issue would be for Iraqiyya to make headway with its coalition-building initiatives and thereby forestall the kind of super-alliance to which it objects (most realistically just the Iraqi National Alliance and State of Law merging to form the “biggest bloc”, which would be a copy of UIA, the all-Shiite alliance of the past). There is much to suggest that the internal friction in the would-be rejuvenated UIA remains considerable, but the Sadrists seem to be moving ahead with some kind of internal consultation process with its supporters on the best PM candidate, which might have a significant impact given its overall strength within the INA, and should indicate to the Iraqiyya leadership that the clock is already ticking.

17 Responses to “Iraqiyya Challenges the Jurisdiction of the Federal Supreme Court”

  1. Ali Wasati said

    Reidar, in the last Israeli elections, The Kadthima party beat the Likud by one seat. However the president asked Likud to form the government due to the sizes of other Far right parties that would make it impossible for Kadthima to form a coalition.

    This in theory applies to Iraqyia, two leading Kurds have already come out and said “its impossible to ally with iraqyia for the time being”, also the SLA and INA have so far shown reluctance to talk. This would leave the political parties no choice but to choose someone else.

  2. Reidar Visser said

    Well, one thing is certain, I don’t think there is any need to rely on Israeli constitutional jurisprudence in this!

  3. Ali Wasati said

    Reidar, but your reply does not answer the question, what is the point of Iraqyia being given the chocie for forming the government, when they are just not able to do so. This would just cause unecessary delay which the same outcome that the SLA/INA/KA will form the next government.

  4. JT Slacker said

    Reidar, how do you rate Jaafari’s prospects as PM? Also, which website do you recommend that has names of winning candidates? I read in a wire service piece that Qassim Daood, Jallaludin al-Sagheer, Humam Hamoodi, Shahristani, Bolani, Faleh al-Fayadh et al all failed to win seats (something that gives me hope for Iraq’s future).

  5. Reidar Visser said

    Ali, sorry, I am in a hurry. Briefly, last time I checked, Barzani hadn’t said anything yet. What Rawanduzi and Talabani may say probably cuts less ice.

  6. Kermanshahi said

    Reidar, the split between the KDP and the PUK in the 70s was very much due to personal issues, Talabani was unhappy about the Barzani clan’s dominance in the KDP and thus created his own party and guerilla faction. Policies of these two parties, specially when it comes to national Iraqi politics (rather than inter Kurdish politics) are quite the same. Even if Barzani hasn’t personally come out and said Listi Kurdistan would not allign with al-Iraqiyya, his list has demanded implementation of article 140 for forming of any coalition, even if Allawi would accept this, al-Iraqiyya would fall apart because the rest of his list opposes to it.

  7. Kermanshahi said

    BTW, Reidar, is there anywhere where I can find the total number of votes every list recieved? The IHEC site only shows the votes of lists which won seats, thus if you add them all up, the totals are incomplete.

  8. JWing said


    It’s a whole slew of Kurdish officials who say they have reservations about working with Allawi. They say they have nothing against him personally, but Osama Najafi, Tariq Hashemi, and al-Hadbaa are all considered anti-Kurd, and Baathists. They’ve questioned their inclusion in Allawi’s list over and over and over.


    Plus the Iraqiya is giving contradictory messages to the Kurds. Allawi has come out saying he has nothing against Talabani becoming president again, but Hashemi just repeated his demand that an Arab can become president. Al-Hadbaa just said that none of the Kurds demands on the disputed territories will be met as well.

  9. JWing said

    Oops, wrong link sorry:

  10. Reidar Visser said

    Several of you asked about the Sadrist referendum in the other post but I’ll reply in this post since the story continues. I haven’t had time to look at the Western newspaper reports that were quoted, but this is directly from Sadrist sources:

    أعلن مسؤولون في التيار الصدري الثلاثاء أن التيار سيجري الجمعة المقبل استطلاعا للرأي في صفوف انصاره لمعرفة مستوى الدعم الشعبي لخمسة مرشحين لمنصب رئيس الوزراء هم نوري المالكي وإياد علاوي وعادل عبد المهدي وإبراهيم الجعفري ومحمد جعفر الصدر.

    وقال القيادي في التيار نصار الربيعي في تصريح لـ”راديو سوا”: إنه لن يترتب على هذا الاستفتاء أية نتائج، مشيرا إلى أنه مجرد لمعرفة مستوى الدعم الشعبي لهذه الشخصيات.

    I.e. there will be a kind of referendum among the “ranks of supporters” of the Sadrists, to ascertain the relative popularity of five candidates, i.e. Maliki, Allawi, Abd al-Mahdi, Jaafari and Jaafar al-Sadr (the son of Sadr I/Muhammad Baqir). The statement also stresses that the referendum is consultative only!

    Kermanshahi, this is typical IHEC, they delete the old files. The rule with Iraqi official materials is as follows: Always save to disk. The PDF lists you are looking for are of the format:

    Click to access baghdad_f.pdf

    Using different spelling variants, you will eventually find all of them.

    JT, I think Jaafari’s faction has taken a beating in these elections and that will impact his prospects in the PM race. Of the people you mention, most of them are out I think, but Shahristani with some 6,000 votes in Baghdad has certainly secured a seat. Hamudi and Saghir didn’t really try since they ran in Kurdistan and I guess they are now upset that IHEC wants to award the compensation seats to big vote-getters (read Sadrists) rather than to whomever is selected by Ammar al-Hakim…

    Joel, rest assured that I do not mean to make light of all the opposition to Iraqiyya (and Nujayfi in particular) in Kurdish circles. But I just want to try to take this debate a little beyond the standard arguments, and include some long term perspectives, including the fact that Barzani can also be pragmatic (he cooperated with Saddam as late as 1996) and that there is a certain east-west axis in Kurdish politics where concessions in the Nineveh area may hold considerable attraction to the Barzanis.

  11. Kermanshahi said

    @Reidar, there is certainly an East-West axis in Kurdish politics, but Ninawa is KDP turf, it’s not attractive at all for him to loose it. Also why would Kurds make concessions in Ninawa if al-Iraqiyya is completely unwilling to make any concessions in Kirkuk?
    Barzani cooperated with Saddam, yes, or if you can even call it that (he called in Saddam’s support to fight the PUK, which was defeating him in civil war, as result he lost significant popularity and Americans had to save him because Saddam didn’t wanna leave), but that’s completely different from politically alligning itself with a party opposed to Kurdish federalism. Also Kurds are demanding Kirkuk from their leaders now and there is an opposition movement, if their leaders fail to deliver, they will loose elections.

    Many factions within al-Iraqiyya such as al-Mutlaq and al-Hadba and particulary the ITF, oppose to giving any concessions at all to Kurds while al-Hashemi has even stated that Iraqis of Kurdish ethnicity are due to their race, unfit to become president in what he calls an Arab country. The way things are, Listi Kurdistan and al-Iraqiyya are the most unlikely lists in all of the election to work together.

  12. Reidar Visser said

    Kermanshahi, please look a second time at my argument: I am suggesting Hadba/Iraqiyya are able to *give* something to Barzani in certain parts of Nineveh.

  13. Kermanshahi said

    Well, as far as I know, Kurds are already in control of Northern Ninawa. Are you aware that per the 1991 green-line, negotiated with Saddam, the Sheykhan and Aqra districts of Ninawa fell under Kurdish control. Kurds still lay claim on another area of Ninawa, the area bodering Syria, but this is of little importance compared to Kirkuk. In Diyala there are two disputed areas, one (Khanaqin) is still under Kurdish control, the other the Kurds withdrew from in 2007 (but have recently been allowed back with these US patrols), but these disputed areas are of minor importance, the main issue is Kerkuk and not all of the governorate is claimed by the Kurds either.

  14. Xenophon said


    I just want to make sure I understand what you are suggesting: That there could potentially be a split in the KA in which the KDP aligns with Iraqiya–in exchange for “something” such as the cession of eastern Ninewah, I guess?–while the PUK presumably remains with SoL/INA? (And Gorran…?) Just looking at the math, unless Allawi can ally with INA or SoL which seems doubtful, doesn’t he basically need to get ALL of the other parties–including ALL the Kurds–to garner the 163 seats necessary to form a government? Unless he can split away some part of SoL or INA, he NEEDS the PUK (and Gorran)–not just the KDP–doesn’t he?

    In any event, I wonder how pragmatic such a move by Barzani would really be. I mean, opening up another split with the PUK and engaging with al Hadba (the control of which by Allawi seems questionable and whose long-term disposition towards the Kurds suspect at best) seems incredibly risky with a very hazy pay-off. With Gorran already eating into the traditional KA leadership (though clearly posing a greater immediate threat to the PUK), such a move would further the fragmentation of the Kurdish front prior to any settlement of Article 140, energy, etc, etc.

    It’s true that Barzani was willing to enlist Saddam in ’96, Turkey in ’97 (and even Iranian elements in ’94, I believe) in his civil war with Talabani. And I suppose one could call that “pragmatic”–in the narrowest sense of the word, but ALSO fundamentally destructive of Kurdish national ambitions. (Thank goodness–from a Kurdish perspective–for 9/11.) Looking long-term, as you suggest, how do benefits exceed costs?

    Of course, the wild card is behind-the-scenes US maneuvering to facilitate an Allawi government. Huge potential pressure on the Kurds (all of them)–and big carrots as well. I suppose, that dynamic might produce something unforeseen.

  15. Swopa said

    An entertaining bit of irony via Gregg Carlstrom at the Majlis… as Reidar notes here, Allawi is trying to push back against the federal supreme court’s interpretation of the “biggest bloc” clause.

    So who has the secular candidate, the de facto candidate of Iraq’s Sunnis, turned to in hopes of bolstering his argument? Why, the leading Shiite cleric, Grand Ayatollah Ali al-Sistani, of course. 🙂

  16. Reidar Visser said

    Xenophon, I’m not suggesting a breakup of the KA, but rather that its overall stance may eventually be dictated more by Arbil/Dahuk than by Sulaymaniyya. One aspect that is often forgotten is that if Kirkuk were ever annexed by the KRG, the whole balance of the Kurdish federal region would gravitate towards the east.

    Swopa, entertaining indeed, and if true very interesting. As far as what was said at the meeting is concerned, I would perhaps want to see a somewhat more confidence-inspiring authority than those “sources close to the marjaiyya” that are cited in the Rafidayn article. Such “sources” appear all the time and sometimes say the strangest things.

  17. Kermanshahi said

    Reidar, the support the PUK will gain out of Kerkuk is nothing compared to the support they lost to Gorran. These current elections where everywhere in Iraq and across the country the KDP won 26 seats, the PUK winning 16 and Gorran 8, that’s with 4 out of 6 Kurdish Kerkuk seats going to the PUK.

    If it wasn’t for Gorran there would still be a balance cause while Dahuk is full of KDP supporters, both Arbil and Silemani are more mixed. PUK compensates for this and the KDP dominance in Ninawa, with the fact that Silemani is larger than the other two and their dominance in Dahuk and Kerkuk. Anyway, for the Kurds, Kerkuk is more important than power.

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