Iraq and Gulf Analysis

The New Federalism Jurisprudence of the State of Law Alliance

Posted by Reidar Visser on Friday, 11 November 2011 19:13

Just when you thought things could not get more farcical in Iraq, the so-called State of Law Alliance of Prime Minister Nuri al-Maliki has provided yet more fodder for potential pun-makers.

Back on 5 November, in a comment on the recent Salahaddin federalism initiative, Walid al-Hilli of State of Law declared that there were problems with the bid relating to article 6 of the law on region formation. According to Hilli, the article in question was “unclear” with respect to the creation of new regions through the transformation of a single governorate to a new federal region.

One could have dismissed the comment by Hilli as a slip of the tongue were it not for the fact that something almost identical was repeated by Mariam al-Rayyis, also close to Maliki, in press comments yesterday.  According to Rayyis, article 6 only relates to governorates wanting to join an existing region! In her view the law must be amended by parliament before the current Salahaddin project can go ahead (she specifically suggests Salahaddin can only join Kurdistan).

Let’s look at article 6.

يكون الاستفتاء ناجحاً إذا حصل على أغلبية المصوتين من الناخبين في كل محافظة من المحافظات التي تروم الانضمام إلى إقليم

Okay, so the referendum is successful if it gains a majority in “each governorate of the governorates wishing to join/combine into a region”. In other words, it was written with reference to a case of multiple governorates forming a region. Arguably, the case of single-governorate formation should have been mentioned separately.  But to deduct from this that single-governorate formation should be governed by different rules is absurd. Article 6 is the sole article that defines the modalities for a successful referendum and it was clearly intended to cover all instances of region formation including single-governorate ones, not least since such single-governorate regions were among the most likely scenarios in 2006 when the law was drafted, for example in Basra. The idea – implicit in the comments from State of Law politicians  – that there should somehow be a stricter threshold for a single governorate to become a federal region than for a combination of governorates (which after all would constitute an even more radical change) just defies common sense.  

The comment by Rayyis which tries to differentiate between annexing governorates to existing regions and everything else is even more flawed: She seems to suggest that article 6 only applies to cases of multiple governorates wishing to join an existing region all in a single referendum! This scenario is not even discussed in article 2 of the law which merely envisages the addition of single governorates to existing regions. It should be fairly clear that the “region” mentioned in article 6 can also be the result of non-federated governorates joining together in an act of federalisation.

The bottom line is as long as the Salahaddin federalists remembered to make a simple request for a referendum (in addition to their dubious “declaration of a region”) the bid will be legal and the government is under an obligation to carry out the requested referendum. Maliki allies have tried to claim that there is somehow a difference between a similar request from Basra and the Salahaddin bid, with the suggestion that the Salahaddin federalism scheme is intended to provide refuge to Baathists, is not conducted in coordination with the central government and even marginalises the Shiite minority! The fact is that in legal terms, the two bids, Salahaddin and Basra, are one hundred per cent identical. Many supporters of the Salahaddin bid are in fact anti-Baathists and there are Baathists in exile that have denounced the whole federalism project. If Maliki continues to treat Basra and Salahaddin differently, then it means he is effectively holding the Sunnism of the majority of the Salahaddin people against them.

Perhaps the new focus on article 6 at least is an indication that Maliki eventually understood that he could not forever obstruct the Salahaddin bid with vague allegations of Baathism. But the sloppy language of that article is such a silly and contrived basis for an attempt to derail a project that clearly satisfies the constitutional criteria for a federalism initiative. This is however not untypical: During the past few days Maliki has also declared that ex-Baathists should publicly denounce the Baath party as a condition for staying in their jobs in the government sector. Once more, he is making up the rules himself.

Reportedly, Maliki is now seeking the counsel of the federal supreme court on these matters. Let’s hope that unlike other previous episodes, the court (or the consultative assembly of state) will know exactly what answer to give him.

14 Responses to “The New Federalism Jurisprudence of the State of Law Alliance”

  1. bb said

    May I make the point again that it is politically very easy for Maliki to brush off requests from one third of a council. However if the council were to gather the 10% of voters signatures on a petition – in other words go through the processes taken in Basra in 2009 – then the petition would have much more political force.
    From my experiences of councils here in Australia, it feels likely that the council got a rush of blood to the head during one of its meetings, and unless it follows through, can’t be taken seriously, least of all by Maliki.

  2. Santana said

    Here is some food for thought for everyone….Maliki’s government claims that they were tipped off by Jibril (the Libyan guy) about the Baathists that want to overthrow Maliki’s gov….which in my opinion was complete rubbish….well please see the links below…it seems that Faleh Al-Fayadh (Maliki’s security advisor)made a special trip to Stanford just before the arrests started….all the baathists files are kept at Hoover !!!! now let’s see how many are gonna accuse me of being a “conspiracy theorist !!! One hell of a coincidence huh ???

  3. Reidar Visser said

    Santana, I know some of the researchers that have worked with those documents and they say that, among other things, they are full of information about Shiite Baathists. So if Fayyad did indeed take a look at them, he must have picked the documents he liked best….

    The Iraq Memory Foundation is headed by Kanan Makiyya so I can imagine he and Ahmad Chalabi must have disagreed about where to store the documents!

    In federalism news, even Jawad al-Buzuni, a Maliki ally and stalwart agitator for the Basra region since 2010, now all of a sudden finds that the timing of federalist initiatives must take into consideration the general circumstances of the country! Seems he too is learning the new jurisprudence fast…

    البزوني : الاقاليم حق دستوري ولكن يجب مراعاة التوقيت والظرف المناسب

  4. Salah said

    Reidar, You give too much credit to Mariam al-Rayyis talk; I believe Mariam al-Rayyis and others within Maliki close circle used to make Maliki wished and thoughts more profession and supportive as these are hired as advisors to Maliki.
    The fact is Mariam al-Rayyis, graduate from law school from Baghdad university worked with Babylon uni, then suddenly she jumped after 2003 and she get noticed in media she is one of those opportunistic so she speaks with mind to be in best position within new Iraq (her Bio


    Looks to the days when those group stand for humanitarian crises for Iraqis and what they can give one of them Dr Dina Khoury what this small video close to the need are they full fill their wishes that Iraqis live in peace??

  5. Reidar Visser said

    Salah, still, the two statements (Hilli and Rayyis) are so similar that it seems clear they come from the same kitchen. It would not surprise me if Tariq Harb shows up soon with the same kind of argument.

  6. Salah said

    To add two things here

    – Some reports claims that Saudi behind the new “New Federalism” as here & here.

    Also Mai Yamani is an author, broadcaster and lecturer on politics and society in Saudi Arabia and in the Middle East. Her most recent book is Cradle of Islam have her bit about what Saudi have to do after US withdrawn?

    – About Stolen Iraqi documents some thoughts by Angry Arab here

    Mai Yamani i Link

  7. Reidar Visser said

    Those two reports are unnamed sources and in the absence of firmer evidence could be made up entirely. As for Yamani, she is an exile with family ties to Hijaz where her father was once said to be involved in a regionalist movement. They had a lot of Hijaz-focused propaganda around 2004, although I think it has since died down somewhat – I have not been monitoring it closely for many years.

  8. Salah said

    Mrs Yamani, although she is a Saudi (her father) but her mother were an Iraqi Women (from Mosel) she studied inside Iraq till her high school while her father was a diplomats then she left Iraq after that.

    I think we should give her more credit than others as she well informed on booth regional matters (Iraq/Saudi), in same taken I think she is well informed than Dina Khoury (She is Lebanese origin, graduated from American university in Beirut) Dian, in recent years she involved with history of Iraq and US project/research for their case in Iraq

  9. Reidar Visser said

    Okay. But I couldn’t find anything federalism-specific commentary in the article you linked. As for Dina Khoury, she is a very good historian who has done a lot of research on and in Iraq – specifically on Mosul!

  10. JWing said

    Reidar, really I think you’re making much ado about nothing here. First, it’s been my experience that many Iraqi politicians do not understand how the government actually works nor the Constitution. Second, these are all Maliki supporters who are opposed to Salahaddin’s bid to become an autonomous region over the recent Baathist crackdown so they can be expected to say anything to discredit the attempt. Politicians do this all over all the time, exaggerating, distorting, etc. Why is this any different?

  11. Reidar Visser said

    It is different because multiple Maliki supporters have signalled he will use these arguments to send the matter to the federal supreme court (which in turn is likely to send it to the consultative state assembly). As such it is an expression of Maliki’s policy of delaying thorny issues as well as actively putting pressure on the courts to get the decisions he wants. We have seen this in the past re the parliamentary right to initiate legislation as well as how to manage the independent commissions.Those decisions by the supreme court have had quite a significant impact on Iraqi politics.

  12. bb said

    What is the “consultative assembly of state” ?

  13. Reidar Visser said

    It is a board of judges and legal experts under the ministry of justice that settles many administrative legal issues that the supreme court is unwilling to deal with. There is more here:

  14. JWing said

    Maliki has made some concessionary moves towards Salahaddin, while continuing to attack the idea of federalism. Again, this seems like typical brinkmanship on the part of Iraqi politicians.

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