Open Versus Closed Lists – Again!
Posted by Reidar Visser on Thursday, 9 December 2010 18:46
Many Iraqi seat winners in the 7 March parliamentary elections were not really interested in becoming members in the national assembly. Rather, they were aiming for seats in parliament as stepping stones for grander, ministerial ambitions.
With the current rush among these deputies towards securing ministerial appointments, the law on replacing vacant seats in the Iraqi parliament – adopted in 2006 and confirmed in the national assembly law of 2007 – will once more become relevant. However, as the debate on the compensation seats after the 7 March 2010 elections showed, there are hidden problems related to the Iraqi elections law due to its rag-tag composition, with elements from laws adopted in 2005, 2008 and 2009. Indeed some of these elements have already been declared unconstitutional by the federal supreme court.
With regard to the replacement of candidates, the debate that will come up again concerns the distinction between an open-list and a closed-list system. In late 2009, the Iraqi elections commission (IHEC) challenged procedures on compensation seat allotments in the law from 2005 because they were predicated on a closed-list system still being in force despite the change to an open-list system adopted in the autumn of 2009. However, the federal supreme court refused to touch the issue, leaving it to the political leaderships to trump the commission. Given this opportunity they naturally opted to hold on to the distribution key adopted in 2005 with its quintessential closed-list character: It basically left it to the political leaderships to distribute the compensation seats as they saw fit as long as their preferred choices – i.e. their own protégées – had been candidates in the elections, regardless of geographical location or placement on the candidate lists.
Similarly, the law on replacement of candidates adopted in 2006 which will likely be used in the case of deputies being promoted to ministerial roles in the next Iraqi government gives the political leaderships considerable leeway in deciding who should replace deputies in question. In the case of compensation seat holders, they can basically choose whichever candidate they prefer. In the case of ordinary governorate seats they need to stick to the governorate lists, but the placement of the candidates on those lists – and indeed their scores of personal votes, which were not in play when the law on replacements was adopted in 2006 – will not have to be taken into account.* More democratic alternatives like referring to the personal votes achieved or even holding by-elections are likely to get rejected by political elites that will prefer those solutions that give them patronage power instead.
The open-list system started up as a promising project. Those that got the most from it were the Sadrists who managed to manipulate it in ways probably not envisaged by its authors. The 7 compensation seats have already been lost to the old way of thinking, and with the considerable number of deputies likely to end up as ministers the idea of close connections between representatives and represented will likely get further diluted in Iraq over the coming months.
Footnote: It should be added that there appears to be an error in the official PDF of the replacement law published on the parliament website. Previous versions as well as the current Iraqi debate relate to the following paragraph:
اذا كان المقعد الشاغر ضمن مقاعد المحافظة التي حددها القانون الانتخابي، فيعوض من الكتلة التي ينتمي اليها العضو المشمول بالاستبدال ضمن قائمة المحافظة وفي حالة استنفاد اسماء المرشحين في محافظة ما فعلى الكيان المعني تقديم اسم مرشح آخر على ان يكون من بين من رشحهم الكيان ضمن القائمة الانتخابية في محافظة اخرى ومن الذين سبق للمفوضية ان صادقت على ترشيحهم.
However, in the PDF version this has apparently been conflated in an erroneous and misleading way:
إذا كان المقعد الشاغر ضمن مقاعد المحافظة التي حددها القانون الانتخابي من الكتلة التي ينتمي أليها
العضو المشمول بالاستبدال ضمن قائمة تقديم اسم مرشح أخر على ان يكون من بين من رشحهم الكيان ضمن
القائمة الانتخابية في محافظة أخرى ومن الذين سبق للمفوضية ان صادقت على ترشيحهم
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