Today, the Iraqi federal supreme court issued a press release indicating the court has changed its interpretation of the principles relating to vacant seats and replacement issues in the Iraqi parliament.
The ruling itself is not yet available on the supreme court website, but there is sufficient detail in the press release to gain an impression of the change that has arisen. In essence, for the first time, the court stipulates that the number of personal votes achieved by candidates in the last general election will decide their eligibility to replace MPs that vacate their seats for whatever reason (normally getting a ministerial job, or due to ill health or death).
It should be stressed that the “correctness of the membership” of the Iraqi parliament (sihhat adwiyat) is decided by the Iraqi parliament itself as a court of first instance, with a two-thirds majority. Only in those cases that are appealed does the court system and the law come into play, meaning that there have been a significant number of cases where MPs continued to hold their jobs because no one appealed their (illegal) possession of seats to the supreme court. But to the extent that appeal cases have transpired, only two legal criteria have hitherto been enforced by the supreme court: The replacement must come from the same governorate and same political bloc (kutla – electoral list does not suffice) as the MP that is being replaced. These principles have been stressed in rulings where a replacement was attempted from a different governorate or a different kutla, but at no time have considerations relating to the number of personal votes been part of the legal reasoning. Indeed, in one of the rulings the court explicitly says replacement is governed solely by the law on deputy replacement that dates back to 2006, before the personal vote system had even been adopted.
Ruling 100 of the Iraqi federal supreme court from 2011 stipulating the law on deputy replacement as the legal basis for replacing MPs
Today, however, personal votes are being used to disqualify a replacement candidate who was approved by parliament but had less votes than someone else from his kutla in the same governorate. According to the court, this has been done with reference to the revised electoral law being “most in conformity with the Iraqi constitution”.
This interpretation by the court seems quite radical for a country with a strict civil-law tradition, since words such as “replacement” and “membership” don’t even occur in the electoral law, and since the replacement law which outlines criteria for governorate and kutla (but not personal vote) is still in force. In this way, the ruling seems to be of a rather innovative variety, similar perhaps to a previous ruling which decreed that “principles of democracy” dictated Iraq must change from the absolute remainder principle to the Sainte Lague method as basis for its electoral law.
Given the politicized nature of the Iraqi judiciary, it makes sense to ask about possible political pressures behind this latest decision. What happened was that Adnan al-Zurfi, a Najaf politician who has been in and out of alliances with former PM Maliki over the past years, returned to his job as Najaf governor after having been elected MP, whereupon he promptly awarded his vacant seat to his own brother. The Iraqi supreme court is now clearly acting against the Zurfi family and its powerful Najaf governor. Whereas it is good to see the Iraqi supreme court apparently standing up against rampant cronyism in the country’s political life, the theoretical parameters of this latest ruling are sufficiently detached from actual legal texts that it also raises questions about the court’s professionalism and overall orientation. A more democratic process would have been achieved if the Iraqi parliament itself took the trouble of updating the law on candidate replacement to reflect the personal vote system.
Iraq and Gulf Analysis 