Groundbreaking Iraq Supreme Court Ruling on the Law on MP Replacement

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.

As Ramadan Begins, the Iraqi Parliament Manages to Agree… On Its Own Membership

In many countries, parliamentary deputies are replaced by new ones if they become government ministers. In most countries, they are replaced if they die. In Iraq, cabinets are big and the death rate high, meaning that there is a higher turnover of deputies during the parliamentary cycle than many other places. On Monday, the Iraqi parliament finally decided that one such replacement which had generated some considerable controversy – that of Thamir Ibrahim Zahir al-Assaf – was in fact valid.

Several points regarding this decision are worthy of note.

Firstly, in a sad testament to the inefficiency of the Iraqi parliament, the decision was finally taken on this matter some four months after the question of Assaf’s membership had first hit the agenda in March this year. The reason is that in order to consider a decision on “the correctness of the parliamentary membership”, as the Iraqi constitution puts it, the chamber needs to be at least two-thirds full so that the required supermajority decision can be made. With 247 deputies present, Monday was one of the few sessions this year with attendance levels over the two-thirds majority mark of 217. Most of the time, the Iraqi parliament is barely half full, with typical numbers of attendees just above the quorum level at 163.

Second, the dispute about Assaf’s membership serves as an indicator about the extent to which the Iraqi parliament busies itself with useless issues. Assaf was confirmed as deputy, but it is really unclear why anyone felt they had the right to challenge him. So far, the main objections to parliamentary deputy replacement have related to moves that upset the balance of governorate representation (i.e. a deputy from a certain governorate are attempted replaced by someone from a different governorate), or the balance of parliamentary blocs is affected (the supreme court has indicated that replacements should come from the same parliamentary bloc as the deputy who left his or her seat). In this case, however, the deputy in question not only came from the same governorate as his predecessor (Anbar). He also ran on the same electoral ticket – the Unity of Iraq alliance.

The Assaf case involves a remarkable chain of replacements in Anbar that began right after the formation of the second Maliki government in December 2010. When Sadun al-Dulaymi became a minister in that government, he was replaced by someone else from his list and governorate: Khalid Sulayman Hamud al-Fahdawi. Fahdawi was killed in September 2011 and was subsequently replaced by Ayfan Sadun al-Eisawi, also of the same governorate and list. Eisawi was then killed and shortly afterwards in January 2013 replaced by Assaf. A look at the original roll of candidates for the 2010 parliamentary elections shows all these four gentlemen on the same list running for seats in Anbar.

It has been suggested that three or four figures played a leading role in the recent attempt to challenge Assaf’s parliamentary membership. The first was another Unity of Iraq candidate from Anbar that failed to win a seat, Tareq Khalaf al-Fahdawi. The second was a relative of one of the deceased and replaced candidates, Faris Taha al-Halbusi. The third was the former finance minister, Rafi al-Eisawi, with some suggesting he was aiming to ultimately get the seat for himself in order to achieve parliamentary immunity from prosecution. And the fourth was the parliament speaker, Usama al-Nujayfi, who reportedly used his influence at the parliament speakership to get the case on the agenda.

It is perfectly conceivable that Halbusi thought he could make a claim to the seat based on a higher number of personal votes. This has been tried before, but as seen in other cases, the argument is judicially uninteresting. Personal votes are simply not relevant to the law on replacement of deputies. On the other hand, it is noteworthy that several deputies who in practice have stolen their seats since they replaced deputies from other governorates still retain their seats today because they are so well liked by their colleagues that no one has bothered to challenge them (or, that only a minority is interested in this). This includes National Alliance deputies Muhammad al-Hindawi and Jawad al-Shuhayli, as well as Salim al-Jibburi of Iraqiyya. Note also how the official list of parliament deputies deals inconsistently with this issue: It has seamlessly made Hindawi and Shuhayli deputies of Baghdad (they ran in Dahuk and Karbala), whereas Jibburi is still listed as Diyala representative, meaning Salahaddin has one less seat than the 12 mandated by IHEC in the official seat distribution.

Whatever the reasons may have been, the whole exercise of challenging the membership of Assaf was shown to be futile. Except for the potentially valuable effect of having sectarian fronts break up a little during a time of heightened sectarian polarization – Nujayfi may well lose some Sunni friends and Maliki may gain some as a result of the replacement dispute  – these antics and personal squabbles are an affront to Iraqi voters who risked their lives to go to the polls in March 2010. If it is allowed to go on ad infinitum, it will degenerate into a second election inside the Iraqi parliament where narrow clique squabbles among political elites rather than voter preferences decide. It is to be hoped that petty considerations of this nature will not prevail when the Iraqi parliament now turns to the far more important project of determining changes to the electoral law before the next round of parliamentary elections in 2014.

Just Exactly How Many Iraqi MPs Are Ready to Vote Out Maliki?

Late last night, Iraq’s president, Jalal Talabani, broke his long silence on exactly what is going on with the request for a no confidence vote against the country’s embattled premier, Nuri al-Maliki.

For a “clarification”, Talabani’s latest announcement was relatively convoluted. Still, there is now at least a few more pieces of information available. Firstly, Talabani is aware that the signature collection does not form part of the constitutional procedure for a presidential call for a no confidence vote. Good. Nonetheless, he has apparently asked for the signatures in advance in some kind of “intermediary” gesture to the opposing camps. His aim has probably been to establish whether there was basis for a no confidence vote to succeed.

In this more limited capacity – as an “opinion poll” if you will – the exercise is of course valid. It also has some interest for predicting the likely outcome of a vote in parliament. As said before, though, there are methodological issues here, relating in particular to the difference between collecting written signatures via email and actually having people come and vote in the parliament chamber. This aspect is salient given the overall low attendance level in the Iraqi parliament. Additionally, there is of course the question of whether Talabani’s office is up to the best standards in terms of analyzing this material. The public statement erroneously refers to “quorum” (nisab) instead of an “absolute majority” as the required threshold (they are both at 163 but no excuses for the confusion by the presidential “guardian of the constitution”) . We can only hope there are no more errors in the press release.

To the numbers reported by Talabani, then. Most wire services on Saturday said only 160 MPs had signed (thus falling just short of the required 163 needed to unseat Maliki) but a fine reading of the presidential statement  shows that is not necessarily the case. Instead, Talabani essentially gives us something of a mathematical equation:

–  160 signatures from Iraqiyya, the Kurdistan Alliance, the Sadrists and independent MPs were initially presented.

–  An unspecified number of signatures from the PUK (Talabani’s own Kurdish party) were subsequently added. This must be more than 3 (since at one point there were more than 163 signatures) but less than 12 (the total of PUK MPs in parliament, assuming none had signed off in the initial batch of 160).

–   Subsequently, 11 signatures were withdrawn and 2 were “suspended” (taliq, this is evidently so strange that even the Arabic statement uses quotation marks).

–  The remaining total is less than 163. (It should be noted that there is no word about falsification of signatures – a subject which consumed a good deal of heated exchanges in the press last week.)

Let us for the sake of the argument assume that the unknown variable here – the PUK signatures –  were at their highest possible value, i.e. 12 (the total of PUK representatives in the Iraqi parliament). That would leave us with a maximum of 160+12-11-2 signatures by people ready to vote down Maliki, i.e. 159. This is 4 less than the required threshold of 163,  in line with conservative estimates presented earlier in the week, and significantly lower than numbers reported by Maliki critics (ranging from 176 to 200 plus).  At the very maximum, there may at one point have been 172 signatures according to the Talabani statement. Add to this the fact that it is easier to make people sign via email than show up in parliament. (Maliki lawyer Tareq Harb appears to have his own count, arriving at 146 but apparently not counting the PUK signatures that were added at one point.)

The Maliki critics who met again at Erbil today have plenty to think about. They are apparently considering a plan B consisting of the second route to a no confidence vote: A questioning of the parliament (called for by 25 deputies) followed by a no confidence vote called for by 65 deputies. This approach is not without its problems: It takes longer, the supreme court recently issued a very biased ruling limiting the right to question ministers (it has received zero attention by the Iraqi press but was almost certainly calculated to also apply to the eventuality of a prime ministerial no confidence vote) and the support of President Talabani and his Kurdish PUK party would not be a given. In any case, its proponents should now stop trying to convince the Iraqi public about their number of signatures (today, Iraqiyya leaders boast they have 10 more up the sleeve and there are even reports about another futile attempt to send one more letter to Talabani to convince him). Instead, if they truly want a vote they should simply begin making specific steps towards a questioning of Maliki in parliament (which begins with a request by 25 deputies to the parliament speaker, Usama al-Nujayfi of Iraqiyya, to summon Maliki to the national assembly).

Talabani does not rule out this second option, of course. Indeed, in calling for the “national meeting” – the gathering of leaders sought by Maliki instead of a no confidence vote – he says this can be useful whether the premier is ousted or not. Maliki critics should however take notice how firmly Talabani asserts his own right to appoint any replacement in line with article 76 of the constitution by which is it his job to identify the candidate of the biggest bloc in parliament. If the Shiite alliance breaks down as a result of a no confidence vote in Maliki and the remnants fail to form alliances with Iraqiyya and the Kurds, that might in theory well be Maliki’s own State of Law bloc – and its premier candidate Maliki himself.

The New Political Balance of the Iraqi Parliament

There are numerous reasons to try to make an update on exactly how many deputies each of the main political blocs in the Iraqi parliament really controls. Subsequent to the resumption of meaningful parliamentary business in November 2010 – 8 months after the parliamentary elections in March that year – the Iraqi national assembly has seen a string of replacements of candidates for a variety of reasons, as well as cases of very public defections from some of the biggest entities in parliament. With a showdown about the annual budget right around the corner, it makes sense to take stock of the new political balance.

It would be prudent to preface any analysis on this subject with a warning about the intrinsically inexact nature of this kind of science. This is so for several reasons. Firstly, Iraqi political blocs change all the time. There is no formal procedure governing this. If a MP wants to, at any time s/he can decide that it is time to seek greener pastures, jump ship and declare a new parliamentary bloc (kutla). Further complicating the analysis is the fact that, probably due to general hubris as well as the irrepressible desire of most Iraqi politicians to call themselves rais of something (“president”), many blocs insist on maintaining sub-bloc divisions – even if this practice in theory negates the principle underlying Iraqi parliamentary theory of the biggest bloc nominating the premier. If the National Alliance is the biggest bloc, how can it at the same time contain identifiable sub-blocs like State of Law, the Sadrists and Fadila? The contradiction is more pronounced in Arabic where everything is called kutla (why not at least adopt something similar to Arabic tribal terminology which beautifully expresses organizational hierarchy?)

This aspect is acutely relevant when it comes to analyzing defections. Some politicians declare defections from a sub-bloc (say, the Wifaq movement within the Iraqiyya alliance) but maintain they remain part of the wider bloc. Others insist on starting an entirely independent bloc without any parent coalition. Yet others remain deliberately ambiguous about the question of bloc allegiances, making it problematic to draw conclusions about their true allegiance.

Thankfully, the Iraqi parliament office periodically tries to create rosters of current parliamentarians with their affiliations. At least four such attempts have been made with respect to the current parliament, the most recent one being less than a month old. As such, it also purports to capture some of the fallout from one month of boycotting by the secular Iraqiyya coalition, which included some high-level defections.

In the new list, the all-Shiite National Alliance has 155 deputies, the secular Iraqiyya 89, the main Kurdish alliance 43, various other Kurdish parties 14, various Iraqiyya breakaway elements 12, various minority (and often pro-Kurdish) representatives 8.

Of course it doesn’t add up. Would have been shocking if it did. The official list makes for a total of 321 deputies in the Iraqi parliament, 4 less than there should have been (325). This in turn raises questions about the reliability of the whole thing and the need for a more detailed reexamination.

On closer inspection, the following obvious errors and lacunae in the latest parliament lists can be identified:

1. Muhammad Kazim al-Musawi of Dhi Qar (presumably ISCI) replaced ex-VP Adel Abd al-Mahdi on 9 August 2011 but is not listed.

2. Mufid Munim Ahmad of Salahaddin (State of Law) replaced minister Jasim Muhammad Jaafar on 21 January 2012 but is not listed.

3. Hasan al-Sari, affiliated with ISCI and ex-minister of state, returned to parliament 20 September 2011 but is not listed.

4. Khudayr al-Khuazaie (VP) was replaced by Khalid al-Asadi on 16 June 2011; he is not listed.

5. Abdallah Khalaf of Kirkuk Iraqiyya has been listed twice.

6. Fatin Abd a-Qadir, active MP of Iraqiyya, has been listed as National Alliance instead of Iraqiyya. She is thought to belong to Wifaq and there is no specific record of her having changed sides (recently there were rumours about defections in Wifaq in Salahaddin; those, however, defected to White not to National Alliance).

7. Additionally, the empty seat of Khalaf Abd al-Samad who became Basra governor in April 2011 has apparently yet to be replaced. This represents a Basra State of Law seat that is not reflected in the latest lists.

8. Finally, in addition to the apparent mislabeling of Fatin Abd al-Qadir as National Alliance instead of Iraqiyya, it is worth questioning the affiliation of newly returned Ali al-Sajri as Iraqiyya. Sajri has been so outspokenly pro-Maliki – and parliament speaker Usama al-Nujayfi of Iraqiyya fought so hard to prevent him for getting back to parliament – that it makes more sense to consider him as outside Iraqiyya altogether.

9. Noteworthy fact: Still listed as National Alliance are Safiya Suhayl and Sabah al-Saadi who once belonged to State of Law and Fadila respectively. They have declared themselves as independents, though apparently at the sub-bloc level and not leaving the alliance as such.

10. Jabir Habib Jabir of State of Law is still listed but has been appointed Iraqi ambassador in Washington, DC. With correct replacement this will not affect the overall political balance.

Now it adds up: National Alliance 159 (including one empty seat), Iraqiyya 88, Kurdish alliance 43, various Kurds 14, various Iraqiyya breakaway elements 13, various minorities 8, total 325. Alhamdulillah.

A legal note is in order, too. Last March, parliament violated its own laws and the Iraqi constitution when it approved the membership of several deputies who did not fulfill the legal criteria. Among them were Jawad al-Bulani, whose case was appealed to the federal supreme court and resulted in the invalidation of his membership (it is actually this seat Ali al-Sajri is now getting back). Another case was Jawad Ghanim Ali al-Shuhayli, a Sadrist who ran in Dahuk in Kurdistan and achieved exactly 3 votes and was given a compensation seat for Baghdad in return. To cover up this little affair, the most recent list from parliament now lists him as a Baghdad deputy!

Beyond the mathematics and the jurisprudence, the chief political trends in this material are as follows.

The main game is being played out with respect to the group of politicians that at some point belonged to the secular Iraqiyya but have signalled independent tendencies. All the other units seem to remain more or less stable, i.e. the Shiite alliance, the Kurds and the minorities.

But Iraqiyya has changed. First it lost around 8 deputies when White Iraqiyya (later White) defected in March 2011. Then it won 10 deputies when Wasat (Unity of Iraq plus Tawafuq) joined them in summer 2011. Then it suffered a string of defections after the start of its parliamentary boycott in December 2011, leading to the creation of the Wataniyun group as well as the emergence of Iskandar Witwit as an independent deputy. Additionally, in this period Jamal al-Batikh of White returned to a seat that Iraqiyya had sought to take themselves, and Ali al-Sajri was also given back his seat despite the objections of the Iraqiyya leadership, again emphasizing that his nominal affiliation to Iraqiyya is no longer meaningful.

Compared with the situation at the time of the formation of the second Maliki government in December 2010, Maliki now has a slightly larger pool to play with of secular and Sunni deputies interested in cooperating with him than last time (now 13 versus 10 back then, and that included Tawafuq deputies with whom Maliki had a somewhat poisonous relationship anyway.) In theory, Maliki might use this to build a more narrow coalition without Iraqiyya. It is however not enough to enable him to rid himself at the same time of the two coalition partners that tend to make the most taxing demands, i.e. the Kurds and the Sadrists. Even the alternative with a Shiite alliance plus Iraqiyya breakaway factions (without the Kurds) is looking a little vulnerable since at least parts of ISCI (10 seats) would probably shy away from this kind of “political majority” alternative, making it harder for Maliki to reach the critical absolute majority mark of 163.

The bigger question is whether Maliki really cares. Many of his latest moves have indicated aloof confidence, with a preference for meeting with Sunni tribal leaders and oil-hungry Asian ambassadors instead of having troublesome national conferences or even receiving the Turkish ambassador. Recently Maliki saw delivery of 131 Abrams tanks from the United States (with a promise of the remaining order of 9 being right around the corner), arriving on time apparently quite regardless of what he was up to politically.

Maliki still needs the annual budget to pass, though. In that struggle the Iraqi parliamentarians can still make an impact and their numbers and affiliations remain relevant.

Testing the Independence of the Iraqi Judiciary: The Batikh Case

The attempt by the Iraqi judiciary to prosecute Vice President Tareq al­-Hashemi  (Iraqiyya) for alleged involvement in terrorist offences has reopened the contentious debate about the true independence and neutrality of Iraq’s judicial authorities.

So far, the actions and statements of the judiciary in the case of Hashemi do not inspire confidence. After initially issuing an arrest warrant for Hashemi, the judicial authorities subsequently seemed to renege somewhat by saying that the initial investigation had been done by a single judge and would be re-examined by a team of five judges. However, in a rather overt sign of interference with the judicial process, today there are reports that Prime Minister Nuri al-Maliki is rushing to furnish the judiciary with additional evidence!

While the Hashemi case remains lingering, today the Iraqi supreme court has issued a final ruling on another case: The right of former minister of state Jamal al-Batikh of White Iraqiyya to revert to his parliamentary seat. Batikh was one among the several ministers who lost their jobs during the downsizing of the government last summer.

So far, the court has issued only a press release, not the ruling as such. The press release merely says the law on replacement of candidates was violated when Ammar al-Gharbawi of Iraqiyya was given the seat of Batikh in August 2011. However, this in itself is clarifying: Since Gharbawi like Batikh was from Wasit (he was the second candidate on the Iraqiyya list), the court has most likely decided that his affiliation to a different parliamentary bloc than Batikh must have constituted the transgression.

This was not a foregone conclusion because the law on the replacement of deputies features ambiguous language, mixing concepts such as parliamentary bloc (kutla) and electoral list (qa’ima). Also, voters voted for Batikh as a member of the Iraqiyya list (333) and nothing else. Batikh only broke away from Iraqiyya later on in the spring, when he became minister and played a role in forming White Iraqiyya.

Today, of course, White Iraqiyya is seen as pro-Maliki whereas the attempt to have Gharbawi installed as replacement for Batikh in August was seen as an anti-Maliki move by Usama al-Nujayfi, the parliamentary speaker of Iraqiyya. The case is also relevant for another pending conflict regarding the parliamentary seat of Ali al-Sajri – another former minister and Iraqiyya member who is now seen as pro-Maliki and anti-Nujayfi, not least through his anti-federalism statements with reference to autonomist tendencies in his home governorate of Salahaddin.

On the balance, the ruling must be described as pro-Maliki, if perhaps not the bluntest one of this kind that the court has issued during the past few years. Iraqi politicians who really want to test the judiciary should instead challenge the failure of the government to hold federal referendums in Diyala and Salahaddin: Here the legal framework is so crystal clear that any attempt by the judiciary to issue a pro-Maliki ruling would be outright scandalous.

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

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.

Still No Agreement on Iraq’s Parliamentary Membership

Almost one and a half years after the general elections of 7 March 2010 and amid persistent street protests, the Iraqi parliament can’t even make up its mind as to who exactly are its 325 members.

According to the official agenda, yesterday’s session of parliament should have been devoted to such momentous issues as the second reading of the strategic policy council bill and a vote on the amended parliamentary bylaws. As expected, none of this was actually addressed by the almost half-empty assembly. However, the presidency of the parliament announced an interesting forthcoming vote – supposedly on Saturday – on the “correctness of the parliamentary membership” of three deputies, namely Jawad al-Shuhayli, Jamal al-Gaylani and Ammar Hasan Abd Ali.

The reason there are controversies relating to these and other members of parliament is the replacement process that began in December 2010 for deputies that became promoted to ministers in the second Maliki government. That process continued well into 2011, and in March came to involve a vote on 7 deputies whose membership qualifications were in doubt. Lately, the matter has been further complicated by the fact that more than a dozen ministers lost their cabinet jobs as a result of the government downsizing and have demanded they get their old jobs as deputies back!

Of the three cases in the latest batch of controversies, that of Shuhayli should be the most straightforward one. Shuhayli replaced Nassar al-Rubayie, a Sadrist. While Shuhayli is from the same list, he ran as a candidate in Dahuk,  where there are almost no Shiites and where he received almost no votes. For his part, Rubayie was a candidate in Baghdad. In other words, in this case, the law on replacement of deputies has clearly been violated since the legal (and constitutionally mandated) balance between governorates has been upset.  Except, of course, that parliament has already once overruled the law and the constitution in this very case since Shuhayli was included in the March vote – and unlike in the case of Jawad al-Bulani, no one appealed the decision. The question is, can parliament challenge it own previous decision in this way, effectively acting as its own appeal court? Article 52 of the contitution just says that the parliament rules, with a two-thirds absolute majority, on the correctness of its own membership within 30 days of a complaint having been presented. That decision, in turn, is subject to a 30-day appeals period before the federal supreme court.

For his part, Gaylani was given a compensatory seat after Abd al-Karim al-Samarraie of Salahaddin and the Iraqiyya became minister of science and technology. Gaylani was also a Salahaddin candidate and he comes from the same Tajdid bloc as Samarraie. There should be no problems whatsoever with this replacement, and if someone is trying to challenge it on the basis of number of personal votes, they are simply misreading the deputy replacement law (which was written at a time when there were no personal votes in the electoral system).

Perhaps the most problematic of the three will be the third case, of Ammar Hasan Abd Ali. He was given the seat of Jamal al-Batikh from Wasit who became minister of state in February and was a member of Iraqiyya for Wasit at the time. That decision has been challenged by members of Batikh’s breakaway faction, White Iraqiyya, which was formed just around the time Batikh obtained his portfolio. The question is whether the new bloc – which did not even exist at the time of the elections – can now claim ownership of the seat based on post-election realities.

In other words, even though this third replacement is correct as far as the governorate balance of deputies is concerned, the question is whether the replacement law is unambiguous as far as sub-entities within the same electoral list are concerned. The answer, alas, is no. The law is unclear because it refers to a bloc (kutla), a list (qa’ima) and entity (kiyan) in the same sentence, without making it perfectly clear which of them shall be used as point of departure for reckoning the replacement entitlements. One way of reasoning that could be made relevant here would be that since the only entity every voter knew about at the time of the elections was the list (qa’ima), it would make sense to use that as point of departure for replacements, instead of using kutlas which come and go, and which voters may be unaware about.

These three cases come on top of the problem of what to do with the ministers of state that unceremoniously lost their jobs in the recent government downsizing. Recently, the consultative state assembly ruled that these ministers should be given their deputy jobs back, despite the absence of any modalities governing that kind of eventuality in the deputy replacement law. Symptomatically, perhaps, this ruling has yet to be published by the Iraqi ministry of justice.

What all of this may serve to remind us is that in a context of immature institutions in the middle of a democratic transition, calling for new elections might well prove counterproductive. Maybe a far better option would be for parliament to try to work for reform from within. And maybe the best place to start would be two pieces of legislation that are actually called for in the constitution: The federal supreme court bill and the special constitutional revision that has yet to be implemented.

The Iraqi Federal Supreme Court Publishes the Bulani Ruling

Iraq appears to have entered a late-Ramadan lull, but today the country’s supreme court at least had the whereabouts to make public the full details of its ruling that deprived former interior minister Jawad al-Bulani of his parliamentary seat.

The ruling itself is broadly as one could expect. The award earlier this year of a replacement seat to Bulani after Ali al-Sajri of the same Unity of Iraq coalition was promoted to minister of state and its confirmation by parliament in March clearly represented a violation of the law on replacement of deputies since a candidate from Baghdad thereby replaced a deputy from Salahaddin and upset the constitutionally mandated balance of deputies between the Iraqi governorates. It is the governorate argument that recurs in the ruling of the court, but it is interesting that the judges also at one point emphasised that Bulani in fact belonged to a different component (mukawwin) of the Unity of Iraq bloc (kutla) than Sajri (Bulani is from the Constitutional Party and Sajri from Tayyar al-Shaab), thereby raising a problem that could become of interest in future cases: Is it the electoral coalition or the individual list that should be used as point of departure for reckoning replacement entitlements? The replacement law from 2006 is ambiguous on this point.

What the ruling also makes clear is that the reason Bulani lost his seat was that politicians from Salahhadin actively filed appeals against the parliamentary decision to approve the replacement candidates in March. Presumably the reason why the court has not stripped two Shiite Islamist replacement deputies of their seats despite their cases being identical to Bulani’s is simply that no one from Bagdhad complained that Jawad al-Shuhayli, a Sadrist who ran in Dahuk, was given one of their seats and that Muhammad al-Hindawi, from Fadila in Karbala, was given another. Of course, Baghdad already has far more deputies than anyone else and its politics is less transparent, but the whole story inevitably smacks of a certain degree of backroom dealing inside the Shiite alliance.

Apparently, then, in this case the court has simply responded to those complaints that were filed and ignored the other cases. It will be interesting to see if new cases arise in the case of the ex-ministers that were given back their seats in parliament by the consultative assembly of the state. The details of that ruling, which is arguably far more controversial, have yet to be published so far.

Replacement Chaos in the Iraqi Parliament (II)

The recent downsizing of the Iraqi government – in itself in some ways a good move – has prompted another bout of legal chaos concerning the rules governing replacement of deputies in the country’s legislative assembly. The latest developments in the matter make up yet another threat to Iraq’s fragile constitutional order and form a depressive backdrop to today’s grim news regarding the security situation.  

The facts of the matter are as follows. Ever since the downsizing of the second Maliki government came on the agenda and was carried out in late July, some voices have been calling for the restitution of the dismissed ministers as deputies in parliament (i.e. in those cases where a deputy had originally won a seat in the 2010 parliamentary elections and subsequently gave it up upon becoming promoted as minister). It should be stressed that there appears to be no legal basis for restoring the seats in this way. The relevant piece of legislation, the replacement law on deputies from 2006, merely stipulates procedures for how to replace deputies that vacate their seats and does not go into the hypothetical question of dismissed ministers returning as deputies, meaning that as far as the replacement law is concerned, once a seat has been given up it should be seen as irretrievably lost for the deputy that vacated it.

Despite these legal aspects, the calls for the ex-ministers to be allowed to return to their seats have persisted. To some extent, the intention may have been to compensate those ministers since their process of dismissal was also one hundred per cent unconstitutional. And yesterday, the so-called “consultative assembly of the state” (majlis shura al-dawla) reportedly reaffirmed the return of the dismissed ministers as parliamentary deputies, thereby providing a cover of legality to the restitution process. Some reports say that ex-ministers that had previously been deputies will be be able to choose between returning to parliament or retiring with a salary.

As an institution, the consultative assembly of the state dates back to the days of the former Baathist regime.  It is a shadowy court administered by the ministry of justice and only limited information can be found about it in the public domain.  In the post-2003 era it has continued to function as an administrative court in those cases where the federal supreme court has been reluctant to issue rulings, including a number of cases relating to provincial administration at the sub-governorate level. Most significantly, the supreme court has sometimes opted to transfer politically contentious cases to the consultative assembly – even in instances when the judicial arguments for doing so have been far from crystal clear.

So far the details of the rulings in this latest case have not been published. They should be, not least since the case relates to rather blunt infractions of both the constitution and the law of the land in Iraq. One potential avenue for a more public debate about these issues relates to the fact that some of the ministers involved have already been replaced by new deputies and at least some of these deputies are likely to put up a fight for their newly won seats. For example, it will be interesting to see how Abdallah al-Rashid of Iraqiyya will react if he loses his seat again after having earned it when Salah Muzahim became minister of state: Rashid had been targeted by Maliki during the post-election debate about deputy eligibility, and one cannot help wonder whether his predecessor who eventually became minister of state represented a face of Iraqiyya that was seen as more tolerable by Maliki. Also there are legal cases underway relating to the way in which the ex-Iraqiyya deputy Jamil al-Batikh was replaced by someone from Iraqiyya rather than by a candidate from his new list, White Iraqiyya, which again has emerged as more pro-Maliki than Iraqiyya itself after the two split. A State of Law candidate called Ali Abd al-Nabi al-Rubaye from Basra has also replaced the minister of state for national reconciliation, Amir al-Khuzaie; if indeed Maliki or anyone else in the State of Law coalition has played a role in providing “advice” for the consultative assembly in this case then chances are of course greater that Rubaye will go quietly.

All in all, the reluctance of the supreme court to touch this case so far is not terribly promising. It pretty much echoes the situation after the elections in 2010 when it proved similarly unable to rise above political pressures and act in a truly independent fashion.

The Iraqi Parliament Declares Itself Above the Constitution and Its Own Laws

It is not a good omen: In the context of unprecedented political anger in the Iraqi streets, parliament today voted to ignore the country’s constitution and its own laws.  In a ruling on the validity of deputy replacements that occurred subsequent to the formation of the Maliki government last December (i.e. deputies who joined the government and gave up their seats in parliament to be replaced by others), both constitutional and legal provisions were conveniently sidestepped.

Specifically, in today’s ruling, parliament validated the memberships in the assembly of six deputies against whom objections had been raised: Jawad al-Bulani, Faris al-Sinjari, Mina Salih Mahdi, Muhammad al-Hindawi, Abdallah Khalaf Muhammad and Jawad Ghanim al-Shuhayli. At least three of those cases (Bulani, Hindawi and Shuhayli) represent flagrant violations of the law on parliamentary replacement since the new deputies are from a different governorate than the original deputy. The constitutional provision for one deputy per 100,000 Iraqis – as reflected in the distribution key for deputies per governorates – is thereby also violated.

Additionally, there are replacement cases that should have been challenged, but haven’t. Most prominently, they include Salim al-Jibburi of Tawafuq; a Diyala candidate who replaced a Salahhadin candidate. It is also unclear what happened to Daghir al-Musawi, who was supposed to replace a National Alliance candidate of the “Hizbollah in Iraq” party, but whose name is not to be found in the latest list of parliament members. It is possible that the National Alliance changed its mind in this case; if he had been made a deputy it would have been another violation of the rules since Musawi was a candidate in Basra and not in Maysan.

What today’s vote shows is that once more the Iraqi political elite is unable to rise above camaraderie and cliquishness and make a principled stand on legal and constitutional issues. Until this tendency goes away, it seems unlikely that the assembly will be able to make the transition from serving its own interests to serving the people it is supposed to represent.