Iraq and Gulf Analysis

The First Step of the New Maliki Government: Attaching the Independent Electoral Commission to the Executive

Posted by Reidar Visser on Friday, 21 January 2011 14:50

The batch of decisions by the federal supreme court released earlier this week contained another interesting item in addition to the refusal to rule in the parliament replacement debacle. In a lengthy ruling, and probably one of the more innovative pieces of jurisprudence ever produced by the court, it has decided that henceforth the “independent commissions” and in particular the Iraqi election commission (IHEC) are to be “attached” to the executive branch of the government.

This is an extraordinary move since the constitution is crystal clear in article 102 with respect to how IHEC is answerable to the legislative branch of government, i.e. the parliament and not to the the government:

تُعد المفوضة العليا لحقوق الانسان، والمفوضية العليا المستقلة للانتخابات، وهيئة النـزاهة، هيئاتٌ مستقلة، تخضع لرقابة مجلس النواب، وتنظم اعمالها بقانون

But through a lengthy argument and creative thinking, the court in its latest ruling manages to put this unambiguous provision to one side by arguing instead that the nature of the work of IHEC is of the “executive” kind and hence its subordination to the legislative branch of government contradicts the principle of separation of powers, which is also part of the constitution as a general principle!

In other words, the court has detected an “error” in the 2005 constitution, and rules in favour of the government against a clause of the constitution itself. This is interesting firstly because it indicates the amount of pressure that must have been brought to bear on the court from the government. Secondly, it begs the question of why the court is not doing anything to explicitly address a far more glaring “error” in the constitution, i.e. the obvious contradiction between article 115 (which gives residual powers to both federal regions and governorates) and article 122 as well as the whole provincial powers law of 2008 (which subordinate the governorates to Baghdad in a more comprehensive way). In this question the court has increasingly ruled in favour of the central government although clause 115 on the residual powers of the governorates is arguably stronger. Thirdly, the timing is also interesting, since the request from Maliki’s lawyers to make the change is dated 2 December 2010, i.e. at a time when he had not yet had his new cabinet confirmed but evidently had the audacity to enter into such controversial legal territory apparently without any fear of creating scandal. But then again, this latest decision just adds to the impression of a political system that is rotten to the bone. Unlike the Tunisians, however, the Iraqis and the Iraqi press just don’t seem to have the guts to do anything about the situation.

24 Responses to “The First Step of the New Maliki Government: Attaching the Independent Electoral Commission to the Executive”

  1. Yeah, this is almost humorous. This is Theatre and hits the capacity of peaceful transfer of power in the center.
    In defence of Iraqi journalism and of all opposition parties, when the Supreme Court is scared (your previous posting is also relevant) its everyone to his own.

  2. Zaid said

    this is an unfortunate development and to my knowledge doesn’t conform to international best practice. Supreme Courts are allowed to interpret constitutions and to not to overrule what is legally considered to be the sovereign will of the people. Where there is an apparent contradiction between two clauses, the Court must find a way to reconcile them while allowing both to operate. The Court cannot however strike down a clause in the constitution itself. That is practically unheard of.

  3. amagi said

    This is ludicrous. Where are the people? Where are the NGOs? What is to be done?

  4. Here is more: Tareq Harb (the Legal Expert) says the decision Supports the independence of the institutions!

  5. Reidar Visser said

    Harb usually agrees with Maliki… And possibly wrote the memo that precipated the ruling by the court. The point is, if this is just a purely “instiutional” matter, as Harb says, why did Maliki bother to engage with it in the middle of the government-formation crisis? Seems to me they are pushing the principle of separation of powers beyond reason in this case.

  6. amagi said

    Why isn’t Iraqiyya all over this? Is there no one with an ounce of moral courage left in Baghdad?

  7. Reidar Visser said

    Amagi, Haydar al-Mulla, from the Mutlak bloc and sometimes spokesman for the whole of Iraqiyya, has issued a strongly worded condemnation. It will be interesting to see how Nujayfi reacts, since the powers of the parliament are directly involved. I believe he is in Qatar to watch the Iraqi soccer team play Australia in the quarter final of the Asia Cup tomorrow. I wouldn’t bet on any revolution between now and kickoff tomorrow afternoon.

  8. Zaid said

    The problem is that i don’t see what can be done about this. There is very little that can be done from a legal point of view, at least in so far as the constitution is concerned.

  9. anon said

    This so called”analysis” is a completely biased , one sided view . Anti- Maliki 100% of the time . As a matter of fact , the whole website is biased.

  10. Zaid said

    iraqiya has announced that they are seeking to pass a law that will reaffirm the independent agencies’ link to the council of representatives:

    from a constitutional perspective, this is uncharted territory for many reasons.

  11. Reidar Visser said

    Anon, I suggest you at least scroll down and read the rest of the first page before you pass judgment on the whole website. You will find that I defend Maliki against accusations that he wants to renegotiate the SOFA. You will find criticism of Iraqiyya for using the strategic policy council and the vice presidential positions to enshrine the principle of muhasasa in Iraq. You will find criticism of Jalal Talabani for decisions based on fictional readings of the constitution, and praise for the Kurds for the way they challenged the first “reading” of the budget in parliament. You will find attacks on Tawafuq and Unity of Iraq for stealing parliamentary seats that are not theirs. Look, I am not for or against any particular Iraqi party; I comment on constitutional issues from an historical perspective and, based on that perspective, the basic belief that a multi-ethnic, non-sectarian paradigm offers the best way forward for Iraq.

    More importantly, could you please offer a legally-reasoned defence of the FSC’s decision?

    Zaid, thanks for the link. I note that it refers to Aliya Nusayf, whose statements do not always reflect what Iraqiyya as a whole is thinking. Interestingly, Bahaa al-Aaraji, the Sadrist, today attacks the decision, saying it is “interpretative” and hence not binding! I agree with him that the decision is bad, but his argument to the effect that there is some kind of constitutional distinction between binding and non-binding supreme court decisions, is again another legal invention of his own.

  12. Zaid said

    Reidar – You’re right about Aliya. Here are some more statements from Iraqiya and from the KA:

  13. Salah said

    This not first and last time that Iraqi politicians specially the big block ignoring constitution orders or rules.

    The thing here these folk more interested to tolerated the rules to their personal necessities more that respecting the role of law and obey them.

  14. Reidar Visser said

    Yes, it is interesting with the Kurds opposing it as well. Really seems like an own goal by Maliki’s lawyers this one. Conceivably, they may have wanted to establish some kind of purist approach to the principle of separation of powers in a bid to pre-empt the strategic council, where their argument runs precisely against those lines. That would however be totally superfluous, since the strategic council is not in the constitution in the first place and the burden of proof in that case is on Iraqiyya and not on Maliki.

  15. Joe said

    Reidar, Agree with your assessment of the hypocrisy of the Supreme Court’s ruling. As many comments here have alluded to, the fear is that Maliki has found a way, politically or otherwise, to pressure the Court to rule in his favor, thus destroying the principle of an independent judiciary in the process, and moving himself closer to authoritarianism. What are your thoughts?

  16. Reidar Visser said

    Joe, as I see it there are two different aspects of Maliki’s strongman tendencies. On the one hand, it involves a greater degree of centralism in the areas outside the Kurdish federal region, which I think is a good idea. On the other hand, it also involves outright authoritarianism of the kind seen here as well as during the recount process after the 7 March elections, which of course is deplorable. It is remarkable that he is doing this right now because he still needs either Iraqiyya or the Kurds to do the things he wants to do and here he is alienating both of them.

  17. Re Tariq Harb, he always agrees with Maliki, and in fact I’ve read that he has worked as Maliki’s personal lawyer. If memory services, I think I read that on Maliki’s State of Law Network in fact.

    As for the Iraqi Supreme Court, they have ruled on this issue before, but not so explicitly; they certainly didn’t see this in the constitution the last time they looked at it. There is no contradiction between the two clauses – Article 102 lists institutions which are “independent” but nonetheless “subject” to parliamentary oversight, and A. 103 list those which are not “subject” to parliament but are “responsible” before parliament (the central bank), or are “linked” to it (e.g. the Communications and Media Commission). A. 103(3) and 104 expressly state that certain institutions are “linked” to the executive. And all three articles state that parliament can regulate them by law. But that is not what happened here.

  18. Reidar Visser said

    Oh, he is indeed his legal adviser I think, sorry about the understatement… When/what number is the previous ruling by the court? It would be even more fantastic if they contradicted themselves.

  19. Lowly US capacity builder said

    Good analysis. I am in complete agreement with the imperative to sort out much more pressing Constitutional ambiguities (like 115 v 122).

    This recent decision is in line with FSC’s previous recent decisions where it engages in the legal “analysis” that supports the PM’s arguments, and ignores those maxims/analysis that cuts against them. Iraqyia is a bit up in arms about it, and a vocal portion of the Iraqi legal community sees this as the last straw against the Chief Justice’s credibility; unfortunately for the short term there is not much that can be done.

  20. Reider, see

  21. Reidar Visser said

    Thanks Kirk, appreciated! That ruling seems to be from the early days of the court in 2006 but I totally agree that there is no reason why the principle of separation of powers should suddenly emerge as a problem between then and now. I guess the main difference concerns who is asking the question: Back then it was the national assembly; this time it was Maliki’s office. On the whole, my impression is that the court’s rulings in the pre-2008 period to a greater extent reflected a degree of judicial independence from the political institutions, with quite a few examples that it supported anti-establishment forces against the government (the case of the Basra governor and some of the rulings on the general prerogatives of the governorates come to mind).

  22. Is it an oversimplification to say that the attachment of the “independent” commissions to the executive turns their members into employees with the PM, who can fire and hire them at will??

  23. Reidar Visser said

    Faisal, I think it is too early to conclude how this will play out in practice, but the fact is that Maliki’s influence over IHEC was less than he wanted and I very much doubt the real motive behind the request was to achieve greater perfection in the separation of powers in Iraq’s government…

  24. Salah said

    تلقًت المفوضية العليا المستقلة للانتخابات بقلق بالغ قرار المحكمة الاتحادية بربطها وبعض الهيئات المستقلة الاخرى بمجلس الوزراء بناء على طلب من مكتب دولة رئيس الوزراء بتفسير عائدية ومرجعية تلك الهيئات ، وجاء في القرار جملة من التفسيرات غير الواضحة فيما مايتعلق ببعض الفقرات الواردة في الدستور او اعتماد ماورد من ملاحظات في كتاب دولة رئيس الوزراء والتي تشير بشكل واضح وجلي ، وكأن المفوضية العليا المستقلة للانتخابات وبقية الهيئات هي خارج إطار وهيكلية قوانين الدولة العراقية
    ان مفوضية الانتخابات لاتريد ان تدخل في سجال مع المحكمة الاتحادية العليا وهي تكن كل الاحترام والتقدير لها وللسلطة التنفيذية ايضا ، الا ان لديها العديد من الملاحظات حول خطورة هذا القرار على استقلاليتها وتأثيرها على سمعة هذه المؤسسة امام المجتمع الدولي اذا ماتم ربطها بالسلطة التنفيذية ، وستقدم المفوضية هذه الشهادة موثقة بالادلة والتفاصيل امام مجلس النواب وله الحق في ابداء الرأي والفصل في ذلك باعتبار ان مرجعية المفوضية هو مجلس النواب بموجب المادة (102) من الدستور وقانون المفوضية رقم (11) لسنة (2007) المعدل والمشرع بموجبه .

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