Iraq and Gulf Analysis

Archive for June 3rd, 2010

More Article 76 Confusion

Posted by Reidar Visser on Thursday, 3 June 2010 15:26

The latest developments and public statements in Iraq have occasioned new confusion about the process to be followed when the new parliament convenes for the first time and the subsequent process of identifying a prime ministerial candidate .

Particularly interesting are statements by Bahaa al-Aaraji, the Sadrist politician. He recently told media that in the case the two Shiite-led blocs, the Iraqi National Alliance (INA) and State of Law (SLA), failed to agree on a single candidate, there would be a run-off between multiple candidates by way of a secret ballot in parliament!

نحن نسعى الى ان يكون هناك مرشح واحد للائتلافين قبل انعقاد مجلس النواب، وفي حال عدم توصلنا لهذا الامر فاننا سوف نطبق اليات الدستور المنصوص عليها بان يكون هناك اكثر من مرشح ويكون هناك تصويت سري ومن يأتي باغلبية الاصوات هو الذي يحصل على منصب رئاسة الوزراء

This is in fact pure fantasy on the part of Aaraji. Or he may be mixing it up with the procedures for electing the president, which are similar to what he described (except that there is no requirement for secrecy). If INA and SLA have no single candidate then by definition they are unable to supply “the candidate of the biggest bloc” called for under the constitution (in the singular!) and no matter how one interprets the concept of “biggest bloc”, Iraqiyya should be charged with forming the government since they at least have a candidate.

One would have thought this could all come down to the wishful thinking of Aaraji (and not for the first time). But it does not stop there. Also Izzat Shabandar of SLA (a defector from Iraqiyya) has suggested that if INA and SLA cannot agree on a single candidate, the other blocs will get involved in deciding who the prime minister candidate should be:

قال القيادي في ائتلاف دولة القانون عزت الشابندر :” اذا دخل كل من الائتلافين /دولة القانون والوطني العراقي/ الى البرلمان باكثر من مرشح لرئاسة الحكومة فان ذلك سيؤدي الى اشراك الكتل السياسية داخل البرلمان في التصويت عليهم . ان هذا الامر يتنافى مع مفهوم الكتلة الاكبر الذي اقرته المحكمة الاتحادية ، وسيفتح الباب مشرعا للمساومات السياسية

Again, this would violate the constitution, which clearly specifies a procedure in which the matter is settled between the president and one specific candidate put forward by the biggest bloc.

Yet another unconstitutional proposal that is being bandied about by ISCI – apparently to the enthusiastic cheers of the Obama administration and UNAMI – is the idea of a “roundtable” to settle the government formation process. It should send a strong signal to Maliki and Allawi about the true intentions of ISCI and their supporters: They want neither of them (but maybe Adel Abd al-Mahdi…), and prefer to circumvent the entire article 76 of the constitution if possible. The latest article of faith from ISCI is that the prime minister must be very, very weak; this seems to be supported by ideas presented by UNAMI about “checks and balances” inside the government such as delegating power to a deputy prime minister, again entirely without reference to the constitution.

This all comes on top of the existing confusion concerning article 76 on government formation. It has emerged that as late as on 18 March, just a week before the provisional election results were released, Abd al-Hadi al-Hassani of SLA told the Khabar news agency that the constitution was perfectly clear with respect to the naming of the premier candidate, saying it was the “biggest winning entity” that was to be charged with this task – in other words the exact interpretation that Iraqiyya is supporting today. The date of the interview would seem to lend credence to the idea that the original intention of the SLA demand for a clarification of the relevant article 76 of the constitution (dated just three days later, on 21 March) may have been to protect what was still expected to be a State of Law win.

وقال الحساني في تصريح خص به وكالة خبر للانباء((واخ)) ان الدستور واضح بان الكتلة التي تأتي باعلى الاصوات هي التي يرشح منها رئيس الوزراء , مؤكدا ان ائتلاف دولة القانون اختار المالكي بالاجماع قبل الانتخابات وانه المرشح الوحيد , موضحا اننا اختلفنا مع كثير من الكتل الاخرى ولكن لم نختلف في تسمية مرشحنا السيد المالكي والدستور ايضا يؤكد على ذلك ومن يفسر الدستور غير ذلك فهو تفسير خاطئ لان الدستور يقول ان الكتلة الكبيرة الفائزة هي التي تسمي رئيس الوزراء وفي انتخابات 2005 الكتلة الكبيرة هي التي كلفت بتسميته واي تفسير غير ذلك فهو خاطئ , داعيا الى ان يصار الى تحقيق الديمقراطية والانتقال من حكومة وحدة وطنية الى حكومة اغلبية برلمانية التي تعطي استحقاق الشعب على كافة الابعاد ويصار الى ابعادها الايجابية

It should be added that Hassani is directly mistaken when he talks about “the biggest winning bloc” which is an expression that does not appear in the constitution; it is however interesting that he used exactly the same language that has later been adopted by Iraqiyya.

It has also been reported that the minutes of the constitutional committee supposedly reveal that the drafters in 2005 were at odds about how to interpret article 76: The Kurds, unsurprisingly, supported the idea of post-election coalition-forming (since they were always unlikely to emerge with a plurality of the votes), whereas the United Iraqi Alliance, including both Nuri al-Maiki and Ali al-Adib, allegedly emphasised an interpretation in which the “biggest bloc” would mean the biggest electoral bloc – in other words 100 per cent as per the Iraqiyya interpretation today. It has to be remembered that this was 2005 and a time when alternatives to sectarian politics were far more unimaginable than they are today. Even more curious, of course, is the turnabout of the Kurds in this respect, since they now apparently take the opposite view of what they said back in 2005 and support Iraqiyya.

In this confused setting, if Iraqiyya wants to achieve their aim of being charged with forming the government, maybe their best bet is to encourage President Jalal Talabani and the presidential council to adhere to the constitutional timetable and get parliament seated before a sectarian alliance of INA and SLA manages to agree on a single prime ministerial candidate. A promise of a second term for Talabani as well as a candidate for speaker from their own list that is acceptable to most others (Rafi al-Eisawi perhaps?) might be their best option to get the process going. If  Iraqiyya reaches the stage of nomination, maybe individual trends within SLA and INA, in turn, will also rethink the prospect of joining an Iraqiyya-based government instead of pursuing a sectarian project that already seems to founder due to its own contradictions (in another sign of troubled relations in the new Shiite marriage, the Buratha news agency has published criticism of Maliki for “defending the Baathist Abbud al-Eisawi [SLA seat winner in Najaf] and attacking the Islamist Furat al-Sharaa [INA seat winner in Basra, accused by SLA of being a member of the armed forces]”. Under that kind of scenario, the numbers of potential allies may also look better from the point of view of Ayad Allawi than they currently do.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 27 Comments »