Iraq and Gulf Analysis

Nujayfi, Maliki, and the Parliamentary Seats of the Iraqiyya Breakaway Factions

Posted by Reidar Visser on Tuesday, 18 October 2011 18:04

The dust has still yet to settle after the recent shrinking of the Iraqi government. That process – and the question of what to do with the sacked ministers – is intertwined with the lingering conflict about the validity of the parliamentary membership of several deputies who gained their seats through a messy process of replacement when party members became ministers in the Maliki government in December 2010.

In August this year, the Iraqi press widely reported an alleged decision by the consultative assembly of state – a somewhat shadowy administrative court – to the effect that the sacked ministers could revert to the seats they formerly held in parliament if they so desired. More recently, this description of the situation has been modified somewhat through the publication of the actual court ruling, which is in fact more limited in scope. In its ruling 85 dated 16 August 2011, the court says former ministers can return to their seats provided they remain unoccupied (shaghir). It should be added that the jurisprudence behind the decision seems somewhat Delphic. Most of the points listed have absolutely no relevance to the decision (such as the reference to the separation of powers between the executive and legislative branches of parliament), and the argument that is used to settle the case is somewhat extraordinary: There is no law that prevents the sacked ministers from returning to vacant seats!

وحيث ان لايوجد نص يمنع المستوضح عنه من العودة لشغل مقعده النيابي غير المشغول من عضو آخر

To give someone a seat in the assembly simply with the reference to the absence of laws explicitly forbidding such allocations certainly seems somewhat contrived as long as there are very specific constitutional provisions governing the allocation of those seats. In theory, the sacked ministers are Iraqis like everybody else. One might even argue that their sacking in late July was implicitly a verdict of incompetency on behalf of the national assembly.

At any rate, in accordance with the ruling, one of the ministers of state, Falih al-Sari who belongs to the Hizbollah in Iraq party within the broader ISCI/Badr coalition of parties, recently got his seat back and was sworn in again as a deputy. There had been rumours last winter that he was about to be replaced in parliament by someone else from his party but this apparently never happened. Accordingly, in this case the action by parliament was at least consistent with the ruling by the consultative state assembly.

Most others of the sacked ministers will not become members of parliament, either because they were never deputies in the first place, or because someone else was given their seat during the first half of 2011. There are however at least two other cases that remain in focus because of inconsistencies in the way parliament – and parliament speaker Usama al-Nujayfi in particular – has opted to deal with them. Firstly, there is Ali al-Sajri, whose replacement in parliament, Jawad al-Bulani, recently lost his seat based on a court ruling. Accordingly, that seat remains just as “vacant” as that which was given back to Sari and it seems unclear why parliament should have any legal reason not to give it back to him. Secondly, there is the problematic case of Jawad al-Batikh, who was recently replaced in parliament by Ammar Hasan Abd Ali from Iraqiyya. That decision by parliament has been challenged by White Iraqiyya, the breakaway faction from Iraqiyya that was formed by Batikh and others around the time he was promoted to minister of state in the Maliki government. They say that subsequent to the split between Iraqiyya and White Iraqiyya, Batikh and Ammar Hasan belong to different blocs. Like Sajri, Batikh is demanding his seat back.

It cannot escape notice that both Sajri and Batikh belong to the secular circles that have opted to remain separate from the rest of Iraqiyya. They are now complaining that Usama al-Nujayfi, the parliamentary speaker from Iraqiyya, is deliberately preventing them from returning to parliament based on political motives. The sudden promotion of Ammar Hasan to replace Batikh in parliament just days before the ruling of the consultative assembly of state is cited as particularly suspicious in this regard, given that Batikh would have automatically regained his seat had not Ammar Hasan won it so suddenly in August (the seat had remained vacant since March). To some extent, then, this whole matter seems to be about Prime Minister Nuri al-Maliki relying on the court system to get potential allies back in parliament (his adviser Tariq Harb recently lauded the ruling of the consultative assembly of state), whereas Nujayfi is trying to oppose these moves by applying the rulings selectively and manipulating the agenda of parliament to this end.

On the balance, one can certainly argue that the decision by the consultative assembly of state to reinstate the members is in itself legally problematic. But if Nujayfi wants to protest it he should at least do so in a consistent fashion. If dirty tricks are used on either side of the divide between the executive and legislative in Iraq, it will be even more difficult to develop healthy political alternatives to a government increasingly described by its opponents as “authoritarian” in nature.

6 Responses to “Nujayfi, Maliki, and the Parliamentary Seats of the Iraqiyya Breakaway Factions”

  1. This may just be a semantic point, but the State Shura Council is not part of the judiciary, but is part of the executive branch, the justice ministry specifically, and its decisions are not binding. So I would just avoid calling it a “court” and I’m not sure I’d call its decisions a “ruling.” I would call them “opinions.”

  2. Reidar Visser said

    Kirk, I agree that “assembly” (or indeed “council”) may be a more precise term. But the assembly calls its “decisions” just that – qarar – which is probably why the Iraqi press talks about the court having “ruled”. For what it’s worth, Tariq Harb claims those decisions are “binding” on the parliament in this case:

    اوضح الخبير القانوني طارق حرب ان قرار مجلس شورى الدولة القاضي بعودة الوزارء المرشقين الى مجلس النواب يعد ملزما لمجلس النواب طبقا لقانون مجلس شورى الدولة رقم 65 لسنة 1979 .

    That law also specifically enumerates the passing of administrative rulings القضاء الاداري
    among the prerogatives of the assembly, which may be a factor behind the conflation of terminology.

    I think the bigger point is the Maliki-Nujayfi struggle being channeled through these institutions with Maliki probably having more influence in the Fadila-controlled MoJ than Nujayfi, exactly as in the case of the judiciary.

  3. I think this is one of those cases in which Iraqi politicians and journalists sometimes speak as if they don’t understand the legal system. This is the text of the law, the section on its powers makes everything it does consultative: State Shura Council Law.

    And can you even think of an example in which the Shura Council made a specific decision and it actually forced anyone to do anything?

  4. Salah said

    the State Shura Council is not part of the judiciary

    Corruption is the abuse of power by a public official for private gain or any organized, interdependent system in which part of the system is either not performing duties it was originally intended to, or performing them in an improper way, to the detriment of the system’s original purpose. The abuse of public offices for private gain is paradigmatic of corruption.

    Iraqi Corrupt judicial systems not only violate the basic right to equality before the law but deny procedural rights guaranteed by Iraqi law.
    The end-point of political corruption is literally “rule by thieves”.

  5. Reidar Visser said

    Kirk, the part of the law that I was thinking of was article 7:

    : ا – تشكل محكمة تسمى (محكمة القضاء الاداري) في مجلس شورى الدولة، ويجوز عند الاقتضاء تشكيل محاكم اخرى للقضاء الاداري في مراكز المناطق الاستئنافية ببيان يصدره وزير العمل، بناء على اقتراح من هيئة الرئاسة في مجلس شورى الدولة ينشر في الجريدة الرسمية.

    Not sure how much it is actually used in practice.

  6. Reidar Visser said

    Late last night there was actually a report that Sajri says the federal supreme court has just given him his seat back:

    قررت المحكمة الاتحادية العليا، الخميس، إعادة عضو كتلة وحدة العراق على الصجري إلى مقعده في البرلمان بعد أن شمل منصبه كوزير الدولة للشؤون الخارجية بالترشيق الوزاري.

    وقال الصجري في حديث لـ”السومرية نيوز”، إن “رئاسة المحكمة الاتحادية العليا قررت عودتي إلى مجلس النواب بصفة نائب في البرلمان بعد إرسال الموضوع من قبل مجلس النواب للمحكمة بشأن موضوع أحقيتي في العودة”، مبينا أن “القضية أصبحت فيها فكرة تكونت لدى رئيس مجلس النواب وارتأى إرساله المحكمة الاتحادية والتي قررت عودتي للبرلمان”.

    وأضاف الصجري أن “حالتي كانت مشابهة لحالة النائب حسن الساري الذي تمت عودته مباشرة بعد الترشيق الوزاري وحسب قرار مجلس شورى الدولة الذي أعطى الرأي بأحقية عودة الوزراء المرشقين إلى مقاعدهم النيابية وكان مقعدي ومقعد الساري شاغرين”، مبديا استغرابه من “عودة الساري وإحالة موضوعي إلى المحكمة الاتحادية التي اتخذت القرار لصالحي”.

    I haven’t seen the actual ruling yet, but in this case it seems parliament gave Sari his seat back based on the consultative state assembly decision and now the supreme court says parliament has to follow the advice of the consultative state assembly in the case of Sajri also.

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