Iraq and Gulf Analysis

The Iraqi Supreme Court Annuls Article 23 of the Provincial Elections Law Regarding Kirkuk

Posted by Reidar Visser on Friday, 30 August 2013 11:19

Somewhat in the shadow of the recent decision by the Iraqi federal supreme court to strike down a law limiting the terms of the prime minister, another crucial decision has been taken by the court in relation to the disputed city of Kirkuk.

Technically speaking, this latest decision consists of a ruling that deems one article of the provincial elections law from 2008 unconstitutional. The article in question is number 23, which stipulated arrangements of quotas and power-sharing in the local government as well as a procedure whereby a parliamentary committee would arrive at special electoral arrangements for Kirkuk, which has not held local elections since January 2005. These stipulations have now been struck down, reportedly after a complaint from the Kurds filed only a month ago.

Since the court decision itself remains unpublished, exactly as in case of the ruling on the terms of the prime minister, we may only second guess the court’s rationale for acting the way it has. However, the most likely official reasoning for striking down the law could relate to the court’s past outspoken dislike of quota arrangements, which it considered before the great debate on the parliamentary elections law in 2009 when Kirkuk was also an issue. According to the court, the only quota arrangements that are sanctioned by the Iraqi constitution are for women as well as minorities – and crucially, the latter means minorities only when they are very small minorities that would risk no representation at all if quotas were abolished. There is of course a special irony if the argument against quotas is now being used in Kurdish favour in Kirkuk, since the Kurds have been the most consistent advocates of quotas in Iraqi politics since the 1990s. However, in Kirkuk it wanted to persevere with the same electoral arrangements as in every other governorate, thereby using its increasing demographic clout. The court’s latest decision will make it easier for the Kurds to have it their way.

There is an historical and symbolic dimension to the cancellation of article 23 that should not be lost upon us. That article, when it was passed in 2008, represented some sort of pinnacle to the Sunni-Shiite reconciliation in the name of Iraqi nationalism that eventually opened the space for Prime Minister Nuri al-Maliki to temporarily achieve some distance from Iran. Article 23 was fought over for many months, mainly with opposition from the Kurds and ISCI. Now it is gone.

This is sufficiently dramatic that it is difficult to study the decision by the court away from Iraq’s and indeed the regions political complications as a result of the Syria crisis. Why is the pro-Maliki court suddenly issuing a ruling that is so clearly in the favour of the Kurds? In the past, the  supreme court has not been particularly supportive of the Kurds, and for example in October 2010 rejected the idea of linking the Iraqi census to article 140 regarding the final status of Kirkuk and other disputed territories.

Could it be that the pressures of the Syria conflict have made it more important for Maliki than before to have good relations with the Kurds? Could it be that Iran also favours an even stronger Shiite-Kurdish alliance in Iraqi politics? With the increasing targeting of Kurds by Al-Qaeda friendly elements in Syria, the maintenance of a Shiite-Kurdish alliance may perhaps seem more important and achievable to Maliki than before.

There are regional complexities to take into consideration as well: Kurdish-Sunni rapprochement in recent years has been associated with Turkey, Barzani of the KRG and  Nujayfi and Allawi of the Sunni-secular Iraqiyya . By way of contrast, Kurdish-Iranian rapprochement has been linked to President Talabani, Vice-President Khuzaie, PUK, PKK and Syrian Kurds generally. Barzani’s credibility as a Kurdish leader is increasingly under pressure from his alliance with Turkey which seems to do nothing to protect Syrian Kurds from atrocities by Al-Qaeda friendly elements.

Kurdish interests in post-2003 Iraq were first focused on grand settlements on Kirkuk and oil, and more recently on revising administrative boundaries. Maybe this recent change of status of Kirkuk elections arrangements through a court ruling represents a more mundane and achievable bargain with Maliki?

7 Responses to “The Iraqi Supreme Court Annuls Article 23 of the Provincial Elections Law Regarding Kirkuk”

  1. observer said

    so now you admit that Midhat takes dictation from Maliki. That is a step forward. Do you recall the timing of Barazani’s trip to Baghdad. It took the Kurds 5 years to complain to the court right after the visit. A quid pro quo…

  2. Fntc said

    A certain KRG pipeline to Turkey which is nearing completion is probably a factor. Rumors have it that Maliki is willing to sacrifice Shahristani as well.

  3. Observer, thanks, I have never denied that Maliki has influence over Judge Medhat. My point has been that some of the decisions that are routinely described as tailored for Maliki – the biggest bloc, and here the absence of parliamentary right to initiate legislation – aren’t as wild in judicial terms as some claim. To my mind it was the ruling on the attachment of the independent commissions to the executive that tipped the balance:

    Fntc, I think what we are seeing is that, partly thanks to Syria, Turkey has been doing stuff in terms of circumventing Baghdad entirely on energy questions that few thought was possible only a couple of years ago.

  4. iraqdesk said

    Reidar here is the full decision of the Federal Supreme Court:

  5. Yeah, thanks, I eventually realised they had split the FSC and the HJC sites, presumably at some point after Judge Midhat lost the HJC presidency.

  6. iraqdesk said

    Apologies – that is in regards to application of women quotas and its application by IHEC

  7. Yeah, didn’t check since I read the ruling some days ago. Kirkuk ruling is here:
    Rejects concept of “leading ethno-religious groups” in election law as discriminatory.

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