Iraq and Gulf Analysis

Archive for March 14th, 2011

Tamimi’s Challenge and Why It Will Go Nowhere

Posted by Reidar Visser on Monday, 14 March 2011 17:48

Ismail Alwan al-Tamimi, a lawyer from Wasit governorate, has mounted a legal challenge before the federal supreme court in which he accuses Prime Minister Nuri al-Maliki and Speaker of Parliament Usama al-Nujayfi for “unconstitutionally” appointing three deputy prime ministers (Salih al-Mutlak, Hussein al-Shahristani and Rosch Shways). Apart from its intrinsic interest as a case of a tentative constitutional challenge to the much-criticised practice of ethno-sectarian quotas in Iraq’s post-2003 political culture, the move will also draw some attention for the fact that Tamimi was also involved in a past challenge in 2010 against the then temporary speaker of parliament (Fuad Masum of the Kurdistan Alliance) for prolonging the “first session” of the parliament indefinitely and thereby postpone the political process – a matter where the federal supreme court actually sided with those who challenged the temporary speaker. Additionally, Tamimi works for the embattled governor of Kut/Wasit – a governorate dominated politically by Maliki’s own State of Law Alliance.

Alas, Tamimi’s challenge is a complete waste of time. His argument is that the constitutional enumeration of two vice-premiers belongs to the section of the constitution that related to the now bygone transitional period of 2005–2010. That in itself is of course correct. But the more important point is this: There is nothing constitutional that prevents Maliki from appointing any number of vice premiers if he thinks that is politically advisable. He can have one, three, or, for that matter, ten. Briefly, the constitution says nothing about the number of ministers, and only political wisdom will limit the imagination in this regard. Some will of course say that this limit has already been overstepped, but the point is that Maliki can constitutionally appoint ministers for the moon and the sun if he so desires, and then add deputies. What this all boils down to is that it is political not a constitutional question and if the prime minister wants to appoint a ludicrous number of placemen then it is his prerogative to do so and it is the role of the parliament – not the federal supreme court – to pass its verdict.

Truly judicial issues that remain connected to the formation of the second Maliki government are firstly a number of unconstitutional replacements of deputies who went on to become ministers, and, secondly, the unconstitutional use of past members of the presidency council (Adel Abd al-Mahdi and Tareq al-Hashemi) in a new role as temporary vice-presidents for the ordinary president without any parliamentary approval. (Talabani says he has issued an order for them to “stay in their jobs” but he has no constitutional authority to do so and in any case the “deputy of the president” and the “deputy of the president in the presidential council” are two completely different jobs that have no relationship to each other.*)  It should be added that within the cluster of cases relating to replacement deputies one can make a similar sub-typology to distinguish between cases that are truly within the judicial and constitutional sphere (which relate mainly to changing the governorate of a deputy during the replacement), and those that are not strictly speaking against the law on replacement of candidate but instead relate to the number of votes obtained by a candidate under the open-list system. The latter cannot be challenged before the federal supreme court even though some of these cases clearly do involve deputies who received a miniscule number of personal votes and as such constitute an insult to the Iraqi electorate, if nothing else.

In any case, even if this second group of truly judicial/constitutional cases may offer a more promising avenue for criticising the seemingly endemic cronyism of Iraq’s new political system, it is unclear whether the federal supreme court would be up to the challenge of tackling any such cases in a mature fashion. Indeed, in the case of the deputy replacements it is unclear who has the right to mount a challenge within thirty days of the parliamentary ruling on the issue – the constitution just establishes in article 52 that such a right at least exists. So far at least, despite growing popular unrest across the country, there are worringly few signs that the Iraqi political elite is beginning to realise that the protests are not only about local councils and governors, but also about the way politicians perform at the national level in Baghdad. Perhaps someone who can rouse them from their sleep is the Grand Ayatollah Ali al-Sistani? For the second time in a few weeks he has reportedly sided with those demonstrations that Maliki blamed on “Baathists”: First he expressed sympathy for the protests in a public announcement (bayan) dated 26 February; today there are reports that he refuses to meet with any government officials pending an improvement in the general sitution.

*Footnote: The legal election of Abd al-Mahdi and Hashemi, for whom there is political support in parliament, is held up mainly because of the continued candidacy of the unpopular Khudayr al-Khuzai of Maliki’s Shiite alliance.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 12 Comments »