A Remarkable Case of Judicial Activism, in Iraq!

The recent decision by the Iraqi federal supreme court to declare unconstitutional an amendment to the 2005 election law that was passed last autumn is clearly something of a surprise and a departure from a previous practice of only reluctantly departing from the letter of the constitution. Details of the decision still remain somewhat sketchy; what follows is largely based on press reports.

The decision concerns the distribution in the amendment passed last autumn of the so-called “surplus” seats:  The seats that remain in each governorate after the initial allocation based on the electoral divider (typically 2 to 4 seats in a medium-sized governorate). In the new version of the law, these are simply distributed proportionally to winning lists only, so that they may win extra seats even if they have less surplus votes than a party that failed to win any seats under the initial allocation. And whereas the previous iteration of the election law comprised a mechanism whereby parties that failed to win governorate seats could be eligible for national compensation seats – thereby potentially aiding the cause of small parties with a nationwide following – no such mechanism exists in the 2009 version of the law, where the “compensation” seats are simply allotted to the winning parties, thereby further reducing proportionality instead of enhancing it (unsurprisingly, it the small Communist party was a leading force behind the complaint to the court).

Many will probably conclude that the decision by the court to attack the clause that reduces proportionality is a good move towards a more fair distribution of seats in the Iraqi parliamentary system. However, the wider implications of the ruling could create a quandary for the court. Reportedly, the verdict of “unconstitutionality” was reached with reference to clauses in the constitution that no law should contradict “democratic principles” and the principle that all Iraqis are equal before the law. And to move from those very general principles towards striking down a particular variant of an electoral system is in many ways a far stretch. In practice the court seems to have settled for “proportional representation” as the most “just” and “democratic” electoral system available, but in that case, how can the court prevent a reversion to the old system of a single constituencythat was in use in January 2005 (instead of 18 governorate-based ones), which arguably is “more just” since it would better approximate the principle of one person, one vote? Of course, the 2005 system was abandoned because perfect proportionality has disadvantages in terms of distance between voters and representatives, but once the 2009 amendment has been declared unconstitutional, it is difficult to see how the court can resist future challenges to the principle of governorate constituencies.

The court has added that the decision will not have any retroactive effect and so there is no suggestion that the seats in the new parliament be redistributed according to a principle of greater proportionality. This is in fact a similar approach to what was adopted when the previous election law was declared unconstitutional for using registered voters rather than total population as basis for seat distribution. The more profound implications of the ruling is that the court now has decided to touch one element of the dual veto that was included in the constitution in 2005 to satisfy the Shiite Islamists and the Kurds – no laws can contradict the basic tenets of Islam or the principles of democracy – and potentially could be prompted to rule on similar issues in the future, including the question of the Islamic nature of laws passed. This in turn, inevitably, will bring focus on the fact that the current court is not formed according to the constitution with a mix of secular and Islamic judges, again as per the constitutional requirement. After a period in which the court seemed intimidated and almost silenced by political pressures during the de-Baathification process, this latest move, while bold, might potentially insert the court in ever greater controversy over the coming period.