Iraq and Gulf Analysis

Archive for May 10th, 2011

Anti-Corruption Measure Sparks Constitutional Confusion in Iraq

Posted by Reidar Visser on Tuesday, 10 May 2011 17:45

The decision by the Iraqi parliament on 18 April to cancel a clause of an old law dating from 1971 has led to a public debate about presidential prerogatives that reveals just how immature and shaky Iraq’s post-2003 system of government is.

The core of the matter relates to the cancellation by parliament of clause 136b in the Baath-era law on the organisation of the courts from 1971 that offered civil servants a degree of of immunity from prosecution in matters related to government service. The measure had been promptly removed by Paul Bremer in 2003 but was reintroduced during the time of Ayad Allawi’s interim government in 2004. In removing the clause, Iraqi parliamentarians made reference to the ways in which it had enabled government officials to protect themselves against accusations of corruption.

The substantive issues at hand could merit a separate discussion. However, in terms of constitutional implications, it is the reactions to the passage of this act of legislation that are most important as indicators of the maturity or otherwise of Iraq’s post-2003 political system. It has been revealed that after the law was passed on 18 April, a letter was sent on 26 April from the Iraqi government to the Iraqi president, Jalal Talabani, asking him to take “the necessary constitutional measures to oppose the parliamentary decision to annul clause 136b”. The problem, of course, is that no such “constitutional measures” exist! After the transitional presidency council was abolished in November 2010, the (ordinary) president no longer has any specified veto power since laws issued by parliament automatically come into force after 15 days whether the president opts to formally sign them or not.  Had a presidential veto power in fact existed there would have been no need to specify one in the final transitional clauses of the constitution which created the temporary presidency council for the 2005-2010 period. Also, it would not have been logical for the Kurds to seek an extension of the collective presidency council (this was one of their 19 demands for joining the second Maliki government) if in fact the presidency alredy enjoyed veto power, since everyone expected that Talabani would become president anyway at the time when they presented their demands.

In a move that seemed conspicuously timed to the 15-day deadline for vetoes that applied to the old presidency council, President Jalal Talabani on 2 May sent a letter to parliament concerning the annulment of clause 136b of the law on the courts. The full text of that letter has yet to be published, but the paraphrases of it that have been circulating in Iraqi media are sufficiently interesting in themselves. Above all, they reveal a surprisingly widespread belief among Iraqi politicians that the Iraqi president still enjoys veto powers! On 3 May, the independent National Alliance politician Sabah al-Saadi told media that Prime Minister Nuri al-Maliki had “told President Jalal Talabani to veto parliament’s changes to the law”. On 7 May, Abd al-Mahdi al-Khaffaji of State of Law suggested that parliament should reconsider the legislation. Comments by State of Law adviser Fadil Muhammad to Al-Sharq al-Awsat on 7 May also seemed to reiterate the belief in “constitutional options” for the president to oppose the legislation, and most recently Jawad al-Shuhayli, a Sadrist of the National Alliance, indicated that “Talabani’s veto would lead to a second vote in parliament”.

The correct constitutional interpretation was finally stated in a letter from parliament speaker Usama al-Nujayfi on 8 May, in which he made clear that any attempt by Talabani to oppose the legislation would go beyond his constitutional prerogatives. In a fudged response, Talabani’s office yesterday issued a statement indicating that the 2 May letter was after all not intended as a veto, that the president had acted on letters received from the Iraqi cabinet, and that he “remained committed to the Iraqi constitution”. An interesting complicating factor in the matter is the fact that the parliamentary action of 18 April was based on the first reading of the law which was introduced by government as far back as on 17 March 2007. In other words, it will be difficult for the government to rely on last year’s ruling by the federal supreme court to the effect that laws must be introduced to parliament by the executive only.

The whole affair shows the extent to which the new Iraqi constitutional framework still remains contested even in those areas where the charter that was adopted in 2005 is reasonably clear. Adding to the complexity is also the tendency of Iraqi politicians to oscillate between the two visions of Iraqi politics that are at stake here – power-sharing versus majoritarian democracy. Normally, Maliki is more majoritarian (as seen for example in the struggle about the security ministers), but in this case that role is actually played by Nujayfi.

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