Iraq and Gulf Analysis

The Hamudi Files and Article 76

Posted by Reidar Visser on Thursday, 10 June 2010 15:05

On the eve of the first meeting of the Iraqi parliament (scheduled for next Monday) and amid frantic attempts by some Shiite leaders to unify their two blocs more effectively, the interpretation of article 76 of the constitution on the selection of the premier candidate has assumed renewed relevance. In particular, after having been confined to rumours and contradictive press reports since the middle of May, pieces of evidence relating to the constitutional drafting process in 2005 have recently been circulated in the shape of a video snip from the fourteenth meeting of the constitutional committee on 25 July 2005, and some of this material has been published by the television station Al-Sharqiya.

The brief video snip shows an altercation during a meeting in the constitutional committee mainly between Sami al-Askari (of Daawa) and Humam Hamudi (of ISCI, the committee chairman). There is also a third person involved mostly outside the view of the camera, possibly Nadim al-Jabiri (of Fadila) who appears at the very end of the snip. Most significantly with respect to the debate about the interpretation of article 76, there is reference to a report of a previous meeting which according to two of the three men states that the right to form the next government should be “according to the electoral achievements” (hasab al-istihqaq al-intikhabi), which would confirm the interpretation favoured by Iraqiyya of disallowing post-election super-alliances of electoral blocs for the purpose of supplying the premier candidate. Hamudi protests, but not very effectively at first. He interjects and says, “hasab al-istihqaq al-intikhabi al-niyabi” or “according to the electoral parliamentary achievements”. Seen in isolation this does not mean a big difference and would just refer to the distinction between percentages of the vote and the percentage of seats actually achieved, and as such also in conformity with the current Iraqiyya position. However, Hamudi muddles the situation by referring to the existence of “two views” on defining the right to form the government (alas the Nokia tune corrupts his attempt at clarifying this!), and also mentions the term “parliamentary bloc” (kutla niyabiyya), which is indeed the language that ended up being used in the constitution. The video ends without any conclusion to the debate.

The context in which this information emerged is in itself interesting. Sami al-Askari raised the question in relation to the scenario of a second premier candidate, in case of the failure of the first. There is discussion whether the second candidate should come from the same bloc that was given the first attempt, or another one – obviously this is where the point about clarifying “electoral achievements” becomes particularly important. Again, though, and often overlooked,  the final version of the constitution in fact remains mute on this question and really places all power for selecting the second candidate with the president. The only requirement, actually, is that he should be a “different” candidate from the first, i.e. he could be any eligible Iraqi (same requiements as for president except a minimum age set at 35 years and a college degree etc.), and strictly speaking does not even have to belong to any of the parties in parliament. Nonetheless, some Iraqi politicians today still seem to believe that the right to be the second premier candidate belongs to the second biggest bloc in parliament.

On the whole, the video provides an important indication that these issues had been thought about in 2005, and that many Shiite Islamist members of the constitutional committee advocated the view that is now being promoted by Iraqiyya, to the point where this at one point was reflected in a written report. Clearly, it would be helpful if a copy of that report were put in the public domain too. On the other hand, though, it has to be remembered that many of the most catastrophic parts of the constitution were not really authored until the subsequent month of August (this was when the Kurds brought in people like Peter Galbraith to consult on matters relating to federalism). Against that backdrop, the video of the 25 July meeting is primarily a testament to an ongoing dispute at an early point of the constitutional drafting process rather than a definitive and unequivocal account of the true “intentions of the framers”.

Some of the arguments by Iraqiyya leaders these days for a “democratic” right for the biggest bloc to form the next government are persuasive, and in particular the fact that few Iraqi voters were informed that the two Shiite blocs planned a merger. On the other hand, though, the argument that the “biggest electoral bloc” logic is applied universally across the world of democracy is incorrect. It is used in many democracies but not everywhere; for example in the UK one possible scenario after the recent election was that of the second biggest bloc (Labour) outperforming the Conservatives in negotiations with the Liberals and thereby staying in power. In the kind of confused situation Iraq is facing today, probably the best thing for Iraqiyya to do in coming days and weeks  is to focus their energies on actual attempts at coalition building first and foremost.

18 Responses to “The Hamudi Files and Article 76”

  1. Reidar,
    Your observations leave no doubt that the prevailing interpretation of kutla up to the elections and beyond is election block (intikhabiya). The deadly sin is in issueing interpretation with retroactive validity, which you did not cover. The arguments that I saw against this are weak; a post election merger is certainly legal but it is up to the president to charge and up to the largest electoral block to concede before the parliamentary block can move forward. Selecting the largest electoral block is automatic, selecting the parliamentary block is not.

  2. Reidar Visser said

    Faisal, what I find problematic in your argument is that it is difficult to find evidence that there was consensus about the restrictive interpretation prior to 7 March. You could even go further and say that when the constitutional committee knew full well about the differences of opinion documented in the video tape from July, why did they not make sure to spell it out in an unequivocal way in the final version in October?

    As I have said many times, I think there are strong moral arguments against the SLA/INA merger in this case, but chiefly on the basis of general democratic arguments, i.e. because they did not tell the electorate about their plans (I think Maliki would have lost many voters had they known) and because a return to sectarian bloc formation would be an insult to Iraqi voters. But I really think it is a blind alley for Iraqiyya to spend lots of time on the procedural aspect, because there is not a power in the world that seems ready to support them in it. I think way to success (and preventing a return to the atmosphere of 2005) lies in building real-world relationships with other Iraqi partners.

  3. observer said

    Faisel, and Reider,
    There were news late today that the “new coalition” will be announced in a few hours. The closer the deadline, the more urgent it becomes. I am not sure what are AL the ramifications of the president (who ever he or she is) giving the PM position to people other than Allawi, but I am sure that, as a minimum, it will through the country in a constitutional crisis, if Allawi and Iraqia CHOOSES to do so. For the sake of future generations of Iraqis and how they will treat the constitution, I hope that they will stick to their guns and not accept the malleable interpretation of the constitution. Iraqis have lived for 52 years where the constitution is just a piece of paper and can be changed at the wishes of the ruler. Future Iraqis should grow with a sense of respect for constitutions and a respect for the law.

    As far as I am concerned, at this point, the Iraqi judiciary is still under the influence of the executive, as it has been for the past 52 years.

  4. Reidar Visser said

    Yeah, I saw those comments by Hakim after meeting Sistani. “Within hours”, he said, and all day I have been wondering whether something perhaps went awry. Funnily enough, Daawa and Iraqiyya held a meeting earlier.

    But now there is this, just minutes ago:

    اعلن قبل قليل عن الاتفاق النهائي بين الائتلافين الوطني العراقي وائتلاف دولة القانون بتشكيل الكتلة البرلمانية الاكبر باسم التحالف الوطني

    They say they have agreed on “The National Alliance” of SLA and INA. Few details so far, Buratha just has the screaming headline. Hasan al-Sunayad, a pro-merger character in Daawa, is quoted on one of the newswires.

    As other commenters here have said here before, give us a single PM candidate before we can take this seriously. After all, they have alreay done the “merger” once, in late May, except that it din’t quite work out… OK this time there is a name, but not much else so far it seems?

  5. Ali W said

    Reidar, I recall that during the time of the formation of the party alliances, Hakeem called on SLA to join them. I recall that Maliki publically replied stated that they would be prepared to ally “before” and “after” the election, although no merger was mentioned, could it not mean that a merger would have been expected if things did not go to plan. I always assumed that they would eventually be a part of the same government anyway.

  6. Reidar Visser said

    People like Hasan al-Sunayd and Ali al-Adib never quite gave up the unification prospect and sometimes talked like that. But it was not a prominent theme during the election campaign which is why I think it amounts to fooling the voters. Maliki’s people talked primarily about building alliances with the Kurds and possibly “elements” from Iraqiyya and INA, but it was clear that both they and in fact most others thought SLA would be the biggest bloc after the elections.

  7. Jason said

    Reidar, I agree with your opinion that allowing post-election blocks to have first stab may be less democratic, but doesn’t it create a serious procedural problem. Assuming that only SLA/INA are capable of mustering the 51% required to elect a President, isn’t it only logical that they also have the best chance of forming a govt? Isn’t it pure folly to ask them to nominate someone in the minority to form a govt? Doesn’t that make it a foolish waste of time (and potential Constitutional crisis and overall breakdown) to force them to select Allawi to form a govt?

    From what I’ve seen so far, neither the language of the constitution nor the alleged drafters’ intent are clear or even particularly instructive, such that an interpretation is required, and is NOT ipso post facto. Regardless of how biased the court may be, there seem to be serious procedural, logical reasons to allow post-election formations.

    Don’t get me wrong, I think the greatest threat to Iraq is Iranian influence and Sadrist corruption, and it would suit me fine if Allawi were to get the chance, but I don’t believe it is worth taking a chance on tearing down the entire Iraqi house to do it. If SLA/INA can agree on a PM nominee, then they have the best chance of forming a govt, pure and simple and logical.

  8. observer said

    I jsut had an interesting conversation that I thought you would be interested in. There are about 20 people in “government” right now who are new MP’s, including Maliki, Hashimi, and Talabani, etc. The constitution clearly indicates that you can not have another job if you are an MP. Hence, if they open the first session and not choose a president, or a PM, there will be a clear violation of the constitution. Another consequence of what a marvelous constitution we have. Clearly written by people who have no clue what laws mean or how elections are held and how to transfer power peacefully. Three more days before the “big show” starts. I love politics, but this is bordering on the ridiculous.

  9. Reidar Visser said

    Jason, I get your point, but I disagree with the common assumption that Allawi will not be able to form a government if he is given a shot at it. I think the dynamics would change entirely from a multi-polar to a uni-polar environment, and forces within SLA and INA would have to rethink the wisdom of holding out for a sectarian alliance at a time when just a few defections would be enough to give Allawi the edge and get passed the 163 mark.

  10. Reidar Visser said

    Observer, thanks, I have heard that argument myself as well. Would it not be contradicted by the precedent of 2006, when Jaafari remained in office until May even though I assume he must have been sworn in with the other MPs in mid-March and technically held two jobs?

  11. observer said

    True, but then they had special rules for the “first constitutionally selected government”. Further, the constitution did not envision having the first session “open” for 45 days either. As I stipulated elsewhere, it is time the letter AND the spirit of the law is observed. If Maliki wants to hang the process up for another 45 days and then back off, then we have a wonderful precedence- don’t we?. This is one more reason why we need a review of the constitution.

  12. Jason said

    It would be much cleaner if Allawi could pull together the necessary 51% to elect a President first, but then Iraqi politics always seems to take the most difficult road possible.

    Observer, we have similar complaints in my state about farmers in the legislature making the laws. I guess that is why we hold our founding fathers in such high esteem, even despite their failure to deal with slavery on the first go-round. God forbid if our current politicians got the opportunity to rewrite our Constitution. It is an interesting point of history to me that some of the more successful constitutions were not very democratically constructed, but were crafted by a small cadre of wise men, or in the case of Germany and Japan, imposed by outsiders.

  13. Reidar,
    With all due respect, you call retroactive supreme court decisions a procedural aspect? No.
    How do you define consensus for an understanding? Many people declared their understanding of a kutla and were not challenged, that’s as good as consensus.
    I see nothing wrong in SLA/INA merger per se, it’s only wrong if it triggers priority due to change of interpretation after voting.
    Jason, I find your argument about the required interpretation irrelevant. I actually agree that the interpretation was needed but this has nothing to do with the timing of the court’s interpretation, which is the cause of the ipso post facto.

  14. I just want to re-comment on consensus of kutla: Going into the 7th of March elections and immediately afterwards the party in power understood the meaning of largest block as the election block, this defines the status quo understanding if not consensus. I still believe the most serious violation is the retroactive validity of the interpretation.

  15. Reidar Visser said

    Faisal, for now I just wanted to post this snip from Al-Arab dated 9 March, which clearly indicates ambivalence at that early stage (2 days after the vote):

    ويتوقع مراقبون، أن يتأخر تشكيل الحكومة مدة طويلة بسبب تسمية رئيس الوزراء، إذ إن جميع الكتل لديها رغبة في تولي رئاسة الحكومة المقبلة، فيما ينص الدستور على أن الكتلة الأكبر هي من تشكل الحكومة، ولم يحدد ما إذا كانت الكتلة البرلمانية التي ستشكل بعد الانتخابات، أو الكتلة السياسية التي شاركت بالانتخابات.

  16. Reidar Visser said

    Also, this one from Al-Akhbar around 9 March, clearly indicating the scenario of Allawi at the helm of a grand post-election coalition to challenge Maliki:

    ويتوقّع البعض أن يعتبر كل من الفائزَين الكبيرين، المالكي وعلاوي، أن من حقه تأليف الحكومة المقبلة. المالكي على اعتبار أن ائتلافه هو أول الفائزين، وعلاوي لكون تحالفه يضمّ عرباً سنة وشيعة معاً، ويمثل أكبر نسبة من عراقيي الخارج. وهنا قد يطرأ جديد سبق أن تحدثت عنه تقارير قبل الانتخابات، وهو احتمال أن يتحالف الجميع بعد الانتخابات ضد المالكي وائتلافه، وفي مقدمتهم الأكراد والمجلس الإسلامي الأعلى، ويرشحوا علاوي لتأليف حكومة جديدة، تحت شعار «التخلص من المالكي» ومن التجربة «السلبية» التي جمعتهم مع سنوات حكمه الأربع

  17. Reidar Visser said

    Here is someone from Unity of Iraq talking about post-election kutla-forming with the ambition of nominating the PM, written 2 March:

  18. Reidar,
    The question is: What was the status quo understanding at the time of voting? Even criminals have the right to select which law they want to be prosecuted under if a new criminal code comes into effect after committing the crime. This is not a matter of moral judgment or politicising the judiciary, its a matter of dangerous constitutional precedent.

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