Iraq and Gulf Analysis

Archive for May 29th, 2011

The Iraqi Spring Comes to an End with Sadrist Demonstrations and Another Maliki-Nujayfi Quarrel

Posted by Reidar Visser on Sunday, 29 May 2011 19:44

Prime Minister Nuri al-Maliki created headlines last week when he was quoted by some media sources as having said that the Iraqi parliament “has no right to legislate”. Recently, there has been an angry rebuff from parliamentary speaker Usama al-Nujayfi of Iraqiyya who identified legislation as the core task of the parliament. Some politicians are complaining that “relations between the legislature and the executive are deteriorating”, and the quarrel comes at a time when agreement between Maliki and Nujayfi remains key to getting the security ministries passed and having an honest debate about the question of the US presence in Iraq after 2011.

The reason for the misunderstanding is probably that Maliki’s statement may have been an attempt at paraphrasing ruling 43 by the Iraqi federal supreme court of 12 July 2010. In the case leading up to that ruling, the previous Maliki government had complained about parliament’s passage of a law passed by parliament that cut ties between the municipality and public works ministries and the governorates. Maliki’s lawyers furnished a multitude of legal arguments in defence of their case, but above all they focused on article 60 of the constitution. That article identifies two ways of initiating a legislative project (mashru): Either it must come from the cabinet, or it can be presented to parliament by the president. On the other hand, a proposal (muqtarah) for a law can be initiated by members or committees in parliament, but Maliki’s lawyer made the case that the two categories – project and proposal – are two entirely different things, and that a proposal must be developed into a project, by the executive, before it can be considered by the parliament.

In its ruling back then, despite the constitution being far from unequivocal on the issue (article 80 speaks about a right for the executive to “propose projects”, thereby fudging the two concepts), the federal supreme court basically adopted the arguments of Maliki’s lawyers word by word and declared as unconstitutional the law that had been challenged by the government. It seems pretty obvious that Maliki’s recent comments must have related to this ruling. It does not mean that parliament has no legislative power whatsoever, as Nujayfi seemed to indicate, but rather that legislative projects must be initiated by the executive. Parliament remains at liberty to make substantial changes to the law projects, and has indeed done so in the past, for example with the provincial elections law on 22 July 2008, and more recently, in changes to the immunities of state officials. But according to the current opinion of the federal supreme court, each new law must originate as a legislative project from the executive (incidentally this is one of the few remaining areas of real presidential power after the removal of the presidential veto.)

In comparative perspective, this kind of executive–legislature relationship is unusual but not entirely unheard of. For example, in the European Union – admittedly a somewhat exotic specimen in the family of democracies and a confederation more than a federation – the parliament has no right to initiate a process of legislation, since member countries see this as potentially undermining their “minority rights”. Also, in several presidential systems in Latin America, the parliamentary initiative is restricted to certain areas of legislation, and may for example not include budgetary or military and security affairs. Iraq may be closer to the EU example, since cabinet decisions in Iraq require some kind of minimum consensus whereas a strong president in Latin America (Brazil and Chile are among the examples) can make decisions on his or her own.  

Unless the Iraqi parliament moves forward on the legislative project of creating a new federal supreme court that can come up with a new constitutional interpretation, it will have to live with a situation in which legislation starts with the executive. What both executive and legislature need to think about in Iraq these days are increasing signs of political mobilisation on the margins of parliament: The Sadrist demonstrations on Thursday, variously estimated at between 20,000 and 50,000 participants, surpassed any “Arab Spring” demonstrations in scale. As such, they served as a reminder of the possible implosion of the “moderate centre” in Iraq – whatever that may exactly mean – unless this centre stops bickering over useless details about vice-presidents and their prerogatives (and most recently, rank) and starts focusing and acting instead on those big issues in Iraqi politics that really count.

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