The Federal Supreme Court Goes Incommunicado over De-Baathification, Compensation Seats
Posted by Reidar Visser on Thursday, 1 April 2010 12:21
It has emerged that one possible explanation for the recent decision by Iraqiyya to challenge the jurisdiction of the Iraqi federal supreme court could be sheer exasperation. After a period of long silence, and without much attention from the media, the court has over the past few days quietly issued a series of opinions which must have done little to inspire confidence in its ability to act as a neutral arbiter in Iraqi affairs.
The first is the much-anticipated and long-overdue response to a query from Salih al-Mutlak and Nasir al-Ani that was transferred by Ayad al-Samarraie, the parliamentary speaker, to the court on 28 February, i.e. more than one week ahead of the parliamentary elections. The two deputies were asking about the permissibility of their exclusion from the election which was based on a reference to article 7 of the constitution, which outlaws glorification of the Baath, racism and sectarian cleansing, but which also calls for a special law to implement those red lines in Iraqi politics. Mutlak and Ani asked whether one could be excluded with reference to this article at a point in time when the actual piece of legislation called for by the constitution has yet to be passed by parliament.
The court’s decision is not particularly sophisticated. It simply says, the query does not call for an interpretation of article 7/1 of the constitution; accordingly it is outside the jurisdiction of the federal supreme court! And that’s it. It is not unlikely that this striking attempt by the court to avoid constitutional interpretation at those junctures when it finds it suitable to do so (the query clearly does relate to constitutional interpretation, and the ruling is indeed classified under this heading in the announcement by the court) may have played a role in the recent breakdown of trust between Iraqiyya and the Iraqi legal system and the decision by the former to question the prerogatives of the court more broadly. The long period that lapsed from the initial query, and, obviously, the fact that the elections took place in the interim – without Mutlak and Ani – all suggest that the court is now under so much political pressure that it cannot anymore be identified as an independent power broker in Iraqi politics.
It is interesting, too, in this regard, that the court refused to have anything to do with a query from the election commission, IHEC, about how to apportion compensation seats. In this case, one can perhaps to a greater extent understand the court’s reluctance, since the issue at hand concerns the relationship between the electoral law and IHEC regulation 21 on the apportionment of the 7 compensation seats. Back in 2005, IHEC applied a fundamentally undemocratic procedure of simply allotting the compensation seats to party leaders who could do with them as they saw fit (i.e. remunerating loyal but not necessarily popular non-winning candidates within their list), and in that sense IHEC regulation 21 of 2009, which gives the seats to the non-winning candidates with the most votes, was clearly a step in the right direction. Articles 17 and 18 of the old election law specifies a procedure whereby party leaderships provide a list of nominees for the compensation seats, but IHEC has objected to this as a remnant of the closed-list system; hence the uncertainty and the struggle between powerful party elites and their protégées on the one hand and the candidates that did well among voters on the other.
Once more, the court says it has no jurisdiction in the matter. Unable or unwilling to communicate, or perhaps a combination thereof.
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