Iraq and Gulf Analysis

Archive for August, 2011

Is the Iraqi Presidency an Appellate Court?

Posted by Reidar Visser on Saturday, 6 August 2011 19:00

The controversy surrounding the refusal of the Iraqi presidency to sign an execution order for Sultan Hashim – a defence minister of the former regime sentenced to death for his actions against Iraqi Kurds in the lethal Anfal campaign in the late 1980s – has brought to the fore some interesting statistics regarding the death penalty in Iraq. According to recently-revealed statistics from the federal supreme court, out of 516 death penalties sent to the presidency by the court since 2009, only 83 or less than a fifth have been confirmed by presidential decree to date. A spokesperson for the federal supreme court added that they were “awaiting presidential confirmation for the remainder of the verdicts”, meaning that all or most of those remaining death sentences have yet to be implemented.

This remarkable piece of statistical information inevitably raises the question of whether the Iraqi presidency possesses appellate powers in cases involving the death penalty. As far as the constitution is concerned, the position is somewhat unclear. Signing execution orders is indeed enumerated as a presidential prerogative in article 73. But no specific authority to issue a pardon is mentioned (unless the prime minister specifically recommends it) , and the constitution does not say what should happen if the president refuses to sign an execution order.  It is noteworthy in this respect that there is a certain parallel to the presidential “prerogative” to issue laws: In that case the constitution says laws are automatically considered issued within 15 days, meaning that they become law whether the presidency likes them or not. This kind of automaticity is not specified as far as execution orders are concerned.

On the other hand, one should perhaps not go too far in pontificating about the “intentions of the framers” in the case of the Iraqi constitution in 2005, since it was adopted in such a hurried atmosphere and is so full of glaring contradictions that the assumption of any coherent “intention” behind the document is sometimes quite difficult to maintain. And in practice, since 2005, Iraqi judges have frequently made the case that strictly speaking no presidential decree is needed to implement a death sentence.  This issue became acute back at the time of the sentencing of Saddam Hussein in 2006 since President Jalal Talabani is an avowed opponent of the death penalty. In that and other cases, however, the deputies of the president signed presidential decrees, thereby completing the procedure specified in the constitution.

The current problem relates to cases where President Jalal Talabani seems to go beyond his opposition to the death sentence in principle and instead is attempting to furnish the institution of the presidency with real appellate powers. This came on the agenda in a serious way in autumn 2010 when the death sentence against Tariq Aziz was passed. Talabani’s reference to the Christianity of Aziz as a basis for attempting to pardon him inevitably came across as somewhat odd, but the more important point that emerged from that as well as the more recent case of Sultan Hashim is the apparent willingness of Talabani to block the presidency as a whole from issuing execution orders in selected cases. This impression has only got strengthened by the case of Sultan Hashim, since it was widely believed that the selection of Khudayr al-Khuzaie (a Daawa hardliner) as third deputy president was in part based on a desire by Shiite Islamists to have a presidential deputy that would be prepared to sign execution orders for members of the previous regime in cases where the president himself or Tareq al-Hashemi (his only other remaining deputy after the resignation of Adel Abd al-Mahdi in late May) might be reluctant to do so.

Politically, this is an interesting issue too. It comes amidst a growing number of instances where Kurds and the secular Iraqiyya have found common ground, pitting them against the Shiite Islamists in the National Alliance. A case in point are the recent protests against Iranian incursions into the Kurdish areas, to which the Kurds have reacted vociferously, but with the Shiite Islamist response slow and seemingly ambivalent. Of course, given the largely secular orientation of many Kurdish leaders, there have been instances of such confluences of interests with Iraqiyya in the past that nonetheless ended up with frustration in the final instance, as seen most pointedly in the case of the Kurdish embrace of a second premiership for Nuri al-Maliki in the autumn of 2010.

This time, the death-sentence dispute comes at a time when Iraqiyya is wavering between deeper integration in the second Maliki government and calls for early elections. It is only the Kurds that can make the final push against Maliki, and in making that choice the discussion about death penalties is only one piece in a much bigger puzzle for the Kurds.

Posted in Iraqi constitutional issues | 11 Comments »

Ramadan Agreement Provides Some Answers but Many Uncertainties Linger

Posted by Reidar Visser on Wednesday, 3 August 2011 20:37

As has become usual in Iraqi politics, a nightly gathering of politicians during Ramadan has helped towards resolving certain political issues, although yesterday’s meeting at the invitation of President Jalal Talabani also left many questions unanswered.

The one thing that is clear is that Iraq will now ask some US forces to stay beyond 2011 as “instructors”. The dissenting voices on this were the Sadrists and ISCI, meaning that the decision probably involved something that Iran did not want to happen.  At the same time, the latest move poses a challenge to those in Washington that may have been hoping for a straightforward SOFA extension: Any activity by the US forces in Iraq after 2011 that cannot be plausibly described as “instruction” will now be susceptible to challenges – politically as well as military – precisely from forces such as the Sadrists.

The other points of “agreement” from yesterday’s meeting come with greater ambiguity. Firstly, there is the festering issue of the strategic policy council – demanded by the secular Iraqiyya as a key element in “power-sharing” and resisted by the Shiite Islamist coalition headed by Prime Minister Nuri al-Maliki who finds it “unconstitutional” (and not without reason, since the council simply isn’t in the constitution). There is now agreement that the draft law will be presented to parliament through the presidency, and apparently there is agreement on the text of the draft that will be introduced. Let’s not forget though that there will be two readings of the law in parliament before it gets voted on, and members of Maliki’s alliance are already signalling that they may bring up again some of their points of opposition to the bill. What has largely escaped notice is that in its current form, the council has such a high threshold for making executive decisions (80% majority) that it is unable to constitute much in the way of an effective check on prime ministerial power anyway. In that context, the demand by Iraqiyya that the head of the council – expected to be Ayad Allawi – be voted on by parliament rather than by the council members seems more like a way of symbolically restoring some of Allawi’s dignity after he won the elections and then lost the premiership last year.

That kind of ambiguity applies also to the remaining points from the meeting. One issue that was agreed to in principle at Arbil in 2010 but so far has yet to be implemented concerns the bylaws for the cabinet. A committee will now be appointed to look into that issue, meaning that the parties are probably as far apart as ever. Much the same seems to be the case with respect to the somewhat elusive concept of “balance” in the state institutions at the levels of director generals and above, for which another investigative committee will be appointed. In the official summary of the latest proceedings, the term “constitutional balance” is used, which is interesting since that word – balance (tawazun) – occurs only once in the constitution, and in that case refers to the proportional balance of the “components” of the Iraqi people in the army and the security forces. Already Turkmen leaders are indicating that they intend to use the latest agreement as a basis for seeking the appointment of security ministers with an ethnic Turkmen background.

Finally, it was reaffirmed at the meeting that Iraqiyya will provide candidates for the defence ministry and the all-Shiite National Alliance will nominate the interior ministry. The reported agreement in the media that Maliki will automatically approve any candidate presented by Iraqiyya for a temporary role as acting defence minister is not reflected in the  official statement from the meeting.

It is important to note that this latest agreement does not reflect any sudden kind of dramatic rapprochement between the main Iraqi parties.  What has happened is that at a time of continuing disagreement, Maliki has agreed at least tacitly with the Kurds and Iraqiyya to keep a limited number of American troops as “instructors” –  and to kick other political problems a little further down the road. It all comes at a time when sectarian fronts could actually be perceived to be hardening somewhat, as seen especially in the latest co-option of the rump of the Wasat alliance, the Sunni Islamist Tawafuq, into the Iraqiyya coalition. This came after the other half of Wasat, the more secular Unity of Iraq, recently joined Iraqiyya, meaning that there are now no Sunni parties that are not nominally part of Iraqiyya. Simultaneously, Maliki has reiterated his belief that the defence ministry must go to a particular sect (Sunni), rather than to a political party (Iraqiyya), which again highlights the way in which politics in Iraq is being reshaped in a more sectarian fashion after the 2010 elections. Indeed, the formally tripartite nature of the latest meeting , with representatives of the Kurds, Iraqiyya and the National Alliance, would seem to suggest a return to more sectarian framework than, say, two years ago.

The two factors that continue to cut across sectarian alliances and prevent a repeat of the Shiite-Kurdish monopoly on Iraqi politics seen in 2005 are the continued desire of Maliki to pursue different policies than ISCI and the Sadrists (which in itself largely invalidates the National Alliance as a real, cohesive political force), as well as the growing Kurdish criticism of Iran, which is sometimes leading them to find common positions with Iraqiyya. It is this kind of tactical shift, rather than the emergence of any kind of coherent, pro-American “moderate coalition” that will now enable the US to keep some of its forces in Iraq as “instructors” beyond 2011.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, UIA dynamics, US policy in Iraq: Leverage issues | 28 Comments »