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Preparing for the 2014 Elections: Iraqi Parliament to Resume Debate on Changes to the Electoral Law

Posted by Reidar Visser on Saturday, 19 October 2013 9:52

It’s almost four years since Iraq’s general elections of 2010 and new elections are scheduled for early 2014. Iraq wouldn’t be Iraq if there wasn’t some kind of problem on the political horizon, and this time it consists of changes to the electoral law that need to be done in time in order that the electoral commission (IHEC) can starts its technical preparations for the ballot. The Iraqi parliament has given itself until 30 October to adopt the changes, and the debate is scheduled to start this coming week of 21 October.

The immediate reason there has to be changes to the election law is simple. A federal supreme court ruling from June 2010 decided that the current system of seat distribution using the largest remainder principle in a proportional system of 18 multi-member constituencies was “unconstitutional” and that a more proportional system would need to be adopted. In line with this, the Iraqi parliament made changes to the local elections law before the provincial elections earlier this year, by introducing the Sainte Lague method for distributing seats.

The reason the current law was deemed unconstitutional was that its use of the largest remainder principle was found by the supreme court to be in conflict with one of the basic axioms of the Iraqi constitution, which says that no law that contradicts the principles of democracy can be adopted. This conclusion by the court is both esoteric and astonishing. In what amounted to a mutual ball-gag between the Shiite Islamists and Kurds that crafted the new Iraqi constitution in 2005, “principles of democracy” as well as the “basic tenets of Islam” were given status as the unalienable main points of reference for all Iraqi legislation. This arrangement was useful there and then since the political process got moving (and quite a few American academics waxed lyrical about it); however, it was probably never intended to be taken very literally given the abstract nature of the concepts referred to. And it seems truly wild for the supreme court to extrapolate from the very general “principles of democracy” – whatever those may be – to a level of detail where it is suggested that the Sainte Lague method for distributing seats is somehow “democratic” whereas the largest remainder method isn’t. One can only wonder what the Iraqi supreme court members think of such abhorrent practices as those found in countries with a Westminster-inspired model of politics where winners typically take all in single-seat constituencies, and where the gap between the popular vote and the levels of party representation in national assemblies can be quite enormous as a consequence.

So far, it is mainly the State of Law coalition of Prime Minister Nuri al-Maliki that has voiced a bit of scepticism to the proposed change – it lost a considerable number of seats in the last provincial elections and at least some of them can be attributed to the new distribution mechanism. Most other Iraqi politicians seem to be happy with the change from largest remainder to Sainte Lague as such, and could in theory adopt that change without needing Maliki’s votes.

Unsurprisingly, however, once the election-law can had been opened earlier this year, other worms came out as well, with interested parties soon showing enthusiasm for more wide-ranging changes that have complicated the discussion of the election law changes in parliament. In particular, this relates to the Kurdish desire to go back to a single, nationwide electoral constituency, as was practised in the elections to the constituent assembly in January 2005. Whereas that kind of move could perhaps be seen as a logical continuation of the supreme court’s insistence on hyper-proportionality, it is also the case that this kind of electoral system was widely discredited as one of the main factors behind the ethno-sectarian voting patterns seen in the first Iraqi elections. Besides, if carried out with reference to the “principles of democracy” it would also imply that Israel, the Netherlands and Slovakia are among the the only incarnations of true democracy with their past and present examples of nationwide constituencies!

The Kurdish goal is obviously to pick up minority Kurdish votes in places where they are unlikely to win seats in other ways, especially in Baghdad. The small Iraqi communist party, which has limited numbers of enthusiastic adherents spread across the country is also in favour of this kind of arrangement – it was them who brought the initial challenge to the current system before the supreme court in 2010. In an interesting reflection of the unpopularity of the single constituency outside the Kurdish camp, the secular but increasingly Sunni-dominated Iraqiyya has voiced opposition to the Kurdish proposal. That is noteworthy since Iraqiyya might well have gained something from a more proportional system in which they could pick up a little bit more points from scattered Sunni and secular minorities south of Baghdad.

If that wasn’t enough, though, other problems are lurking too. Back in 2009 there was a huge debate about special arrangements for the disputed city of Kirkuk. Eventually, a highly theoretical method for scrutinizing the result was adopted, but it was never put into practice because the contesting parties – Kurds and Iraqiyya – seemed happy with the outcome (it was the Iraqiyya camp that had introduced the idea of a special status for Kirkuk as it was assumed the Kurds would dominate the process there). However, the issue could easily come up again, possibly in combination with the other contentious issue of minority seats, if the conflict over other parts of the election law persists.

Iraqiyya and the Shiite Islamists have enough votes to trump the Kurds on constituency size unless they start quarreling internally over Sainte Lague versus the largest remainder distribution mechanism. Another question is to what extent the regional sectarian climate will influence the Iraqi decision on these matters. Lately, events in Syria have brought Iraq’s Shiite Islamists and Kurds closer together again, presenting them with a considerable dilemma and the prospect of regional side effects from any major quarrel in the Iraqi parliament. The president of the Kurdish federal region, Masud Barzani, has already threatened to boycott the next parliamentary elections if Kurdish interests aren’t safeguarded in the electoral arrangements. Barzani is himself under pressure because of his loyalties to Turkey (which supports the Syrian opposition) and his relations to other Iraqi Kurds (some of whom are more favourably inclined towards the Assad regime). Hopefully, though, Iraqis will use the election law debate as a means to build political bridges domestically instead of importing ever more problems from abroad.

Posted in Iraq parliamentary elections 2014, Iraqi constitutional issues | 2 Comments »

The Iraqi Supreme Court Strikes Down Law Limiting Prime Minister Terms

Posted by Reidar Visser on Tuesday, 27 August 2013 13:41

The Iraqi federal supreme court has this week made a decision that renders invalid a law passed by the Iraqi parliament earlier this year that attempted to block a third term for Prime Minister Nuri al-Maliki.

First, two notes on the general debate about this latest decision are in order. Firstly, the supreme court has not “vetoed”  the law, or “rejected a draft” as AP put it. No one vetoes laws in Iraq after the transitional presidency council disappeared in 2010. The law was already published, and, theoretically, in force. In striking it down, the court deemed it unconstitutional after a specific challenge had been mounted against it by  supporters of Prime Minister Nuri al-Maliki.

Second, it should be noticed that the Iraqi supreme court has become rather erratic in its official communications lately. In a trend that has afflicted several Iraqi government websites (including most recently that of the parliament), what was formerly a useful website has become the victim of a fancy upgrade that severely restricts its readability (and the access to past rulings). Accordingly, information about this latest ruling must at the current stage be glanced from secondary reports in the media.

The chief question regarding the court’s decision is what argument was used for striking the term-limit law down. Most reports cite an argument used by Maliki’s supporters that no such term limit exists in the constitution as far as the prime minister is concerned, whereas a specific limit occurs with respect to the presidency of the republic. Had the framers of the constitution wished for a limit, the argument goes, one would have been explicitly included.

The second argument that has been cited as a possible justification for the court in striking down the law, is the distinction the court has made in past between law “projects” (that have passed through the cabinet before being considered by parliament) and “proposals” (draft laws passed without any cabinet interference). The court has previously argued that the Iraqi constitution maintains a sharp distinction between these two, and that “proposals” need to be transformed into “projects” through cooperation with the cabinet before they can be considered a fully-fledged law, i.e. in practical terms severely limiting the right of the Iraqi parliament to act independently of the cabinet. Sadrist Bahaa al Aaraji, not always the most trustworthy of sources, claim this argument was reiterated by the court in its most recent ruling on the term-limit law. That would certainly be significant since there has been an increase of attempts by parliament to circumvent the cabinet through “law proposals” in recent years.

Whatever the exact wording, the ruling is clearly a pro-Maliki one, and thus confirms the continued influence of Maliki allies on the court including supreme court chief Midhat al-Mahmud (whom Maliki adversaries had earlier tried to get rid of). One of the next thorny issue for the court and Iraqi politicians to consider will likely be the elections law, where the pro-Maliki court in 2010 made a ruling that deemed unconstitutional the largest-remainder seat distribution mechanism that was in force in the last parliamentary elections. The law was changed to a more proportional formula, but after their relative decline in the local elections earlier this year, Maliki supporters have now found out they disagree with the supreme court on the issue!

The changes to the election law  could be an interesting quandary for the court and Maliki. In the past, court has shown a remarkable ability to contradict its own previous rulings. Maybe they actually don’t mind the latest changes to their website where the rulings of the past are becoming more and more difficult to retrieve.

Posted in Iraqi constitutional issues, Uncategorized | 19 Comments »

The Iraqi Prosecutor General Asks the Iraqi Parliament to Replace President Talabani

Posted by Reidar Visser on Monday, 13 May 2013 16:03

Much more will likely be written about this in coming days and weeks, but it is already now worth taking note of a letter sent from the Iraqi prosecutor general to the presidency of the Iraqi parliament, asking them to replace Iraq’s current president Jalal Talabani due to his prolonged absence for health reasons.

The letter was first reported by media leaks, but it is now published on the website of the Iraqi judiciary, meaning it is definitely official and enjoys the support of the judiciary as an institution.

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The question of when, during a period of prolonged absence, the Iraqi president needs to be replaced is not well defined by the Iraqi constitution. Nor is there bylaws for the presidency that govern this question. The major issue concerns interpretation of article 72, which says a new president must be elected if the incumbent president “vacates” his post for any reason.

The question then is, who should decide that the president’s absence is so prolonged that it satisfies the criteria for replacement as per article 72? The Iraqi judiciary today gives us the answer by referring to article 1 of the law of the state prosecution service, dating from the Baath era. That law, slightly amended in 2006,  gives the prosecution service the job of defending the order of the state, and it is presumably in such a capacity it now deems itself capable of intervening.

This latest step by the Iraqi judiciary raises the question of whether replacing Talabani may finally have received the support of Prime Minister Nuri al-Maliki, who has seen Talabani as a friend among the Kurds, and whose own political ally  Khudayr al-Khuzaie has effectively controlled the presidency in the absence of Talabani and with the other vice-presidents either resigned (Abd al-Mahdi) or in exile (Hashemi).

Barham Saleh, also from Talabani’s PUK,  is reported as a possible replacement candidate. The Iraqi parliament will vote on a replacement; the aim is a two-thirds majority but if no one reaches that level, a simple-majority run-off vote will be held.

Posted in Iraqi constitutional issues, Uncategorized | 11 Comments »

New Law Limits the Terms of Iraq’s Prime Minister

Posted by Reidar Visser on Sunday, 27 January 2013 9:26

A couple of points regarding the law on term limits for the “three presidencies” passed by the Iraqi parliament on Saturday.

  • The law limits the three presidencies (president proper, speaker of parliament and prime minister) to two terms, whether successive or not.
  • Whereas a limitation on the presidency to two terms is prescribed in the Iraqi constitution for the presidency proper, no such restriction appears with regard to the premiership. Maliki supporters is calling the law unconstitutional for this reason. It may be more correct to see the law as “extra-constitutional” (since the constitution is mute) but that does not mean the supreme court will not find problems with it.
  • Another noteworthy problem is that the law is a “proposed law” rather than a legislative project. In 2010, the Iraqi supreme court struck down another such “proposed law”, arguing that parliament had no right to initiate legislation other than making a proposal that would then have to pass through parliament. The supreme court may opt to strike down the bill simply for that reason.
  • Note that rejection of the bill is not automatic: It must be specifically challenged before the supreme court. Maliki will probably lose no time in doing so, but it should be added that at least a couple of dozens of “proposals” have indeed been passed into law apparently without such challenges over the past few years, and quite a few others are on their way. The sheer volume of this legislative action suggests the Iraqi supreme court may gradually find it harder and harder to defend what is arguably a somewhat contrived ruling.
  • It is noteworthy, too, that the law shows the Iraqi parliament can be effective when it wants. The bill was introduced, read and passed all in the single month of January.
  • The bill passed with 170 votes. That’s of course more than the magical 163 threshold that was not achieved when the sacking of Maliki was on the agenda last spring. Nonetheless, the bill is so clearly directed against Maliki personally that it should be taken to mean any other vote in parliament other than a non-confidence motion is potentially problematic to him. Maliki may hide behind supreme court activism that effectively confines the ability of parliament to legislate introduce bills or hold ministers accountable for the purpose of sacking them. But he needs to get a budget passed and handle acute tensions with the Kurdish federal government, some of which require legislative agreement. Maliki cannot survive merely on the basis of an amenable judiciary and populist gestures of an increasingly sectarian nature.

Posted in Iraqi constitutional issues | 6 Comments »

The Iraqi Parliament Moves against Maliki on Several Fronts

Posted by Reidar Visser on Tuesday, 15 January 2013 12:11

Reports out of the Iraqi parliament are getting more and more extraordinary. The summary of events relating to its session on Monday is no exception.

Among the items on the agenda that were taken up for debate was nothing less than the “questioning of the minister of sports in absentia”. The sports minister, a Turkmen Shia Islamist and an ally of Prime Minister Nuri al-Maliki, has been accused of misconduct relating to the affairs of his ministry, including a major sports city project. The questioning went ahead headed by a Sadrist, whereas Maliki’s minister of parliamentary affairs called for legal procedures before the federal supreme court (relating to recent limitations on the rights of parliament to question ministers) to run their course before any questioning.

In another challenge to Maliki, a second reading for a bill intended to limit the terms of the “three presidencies”(i.e. the president of the republic, the “president of the cabinet” which is Arabic for the prime minister, and “the president of the national assembly”, i.e. the parliament speaker). The move, initiated with a first reading just a week ago, is seen as an obvious attempt to curb Maliki’s ambitions for a third term. It is noteworthy that whereas term limits for the president of the republic exist in the constitution, there is nothing in the Iraqi charter that prevents a prime minister for continuing for unlimited periods as long as he wins parliamentary support to accede to the position each time. Maliki allies have pointed out this, and claim that any attempt to impose limits without fixing the constitution itself (that requires supermajorities) would be unconstitutional. It is also unclear how the federal supreme court would deal with any passage of the law since it is a mere “proposal” rather than a cabinet-sponsored “project”, a legal distinction that limits the possibilities for the Iraqi parliament to initiate legislation.

Finally, Parliament Speaker Usama al-Nujayfi formally communicated a decision by the presidency of the parliament to withhold the voting rights of Maliki ally Hanan al-Fatlawi until she has apologized formally to Nujayfi for insults thrown at him. It is noteworthy that the parliament presidency is dominated by Nujayfi (Iraqiyya) and his two deputies – a Kurd and a Sadrist. In the case of Fatlawi, at least, these forces are standing firm against Maliki, and it will be interesting to see whether Maliki will use the upcoming annual budget law to expand his parliament support base somewhat, or whether he will persevere with his current strategy of a de facto minority government as the local elections of 20 April come closer.

Posted in Iraqi constitutional issues, Uncategorized | 1 Comment »

Provincial Elections Law Revisions in Iraq

Posted by Reidar Visser on Thursday, 2 August 2012 8:43

At a time when most Iraqi politicians seem to consider the cabinet crisis to be over,  attention is increasingly turning to the next local elections, scheduled for early 2013. More and more, it is being suggested that major political reform may well end up on the back burner again, with a decision on the electoral commission composition perhaps the most prominent issue of the day (it is also on the agenda as parliament meets today).

Yesterday finally saw a vote on revisions to the provincial electoral law that originally dates back to 2008. Symptomatically, perhaps, the revisions have yet to be published on the parliament website! But at least some features are known from press reports.

The problem with the revised law is that the Iraqi supreme court has already deemed it unconstitutional, at least if press reports about the contents are true. This is so because the revised law reportedly keeps the principle of allotting surplus seats to winning parties only, using the largest remainder principle. In 2010, the supreme court, based on a request from the small communist party, specifically ruled this arrangement “undemocratic” (and therefore unconstitutional), and demanded change to a more proportional allocation formula. Apparently, this aspect – which after all was one of the main reasons there was a need to change the law in the first place – was conveniently forgotten by Iraqi politicians yesterday. In other words, once more Iraq is saddled with a law that will be unconstitutional from the get-go.

Other reported changes concern the allotment of additional minority seats for Fayli Kurds and Turkmens (the latter reportedly in Baghdad). Again, this may be indicative of a trend in Iraqi politics. The previous iteration of the law only gave true micro-minorities (Yazidis, Christians, Shabak etc.) seats in particular governorates, whereas medium-sized minorities like the Turkmens and the Fayli Kurds were left with the option of mobilizing within the framework of the ideologically defined (non-ethnic) parties. Inevitably, one gets the impression that the more Iraqis are encouraged to vote in closed ethnic constituencies, the smaller the prospect for the development of a truly national political fabric. With recent moves to expand the size of the electoral commission, it is conceivable that this trend will only continue to grow further.

Meanwhile, one interesting aspect of the decision yesterday on electoral law changes is the political dynamic. It was reportedly a deal between the two biggest coalitions, Iraqiyya and State of Law, that led to agreement. These two groups will both benefit from maintaining the current, largest-remainder for winning blocs principle regarding the “surplus” seats. For their part, Shiite parties outside Prime Minister Maliki’s bloc like Fadila and the Sadrists have already been prominent in criticizing yesterday’s parliament decision. A major elephant in the room, of course, was the disputed city of Kirkuk, which never held elections in 2009, and where the issue of ethnic quota seats remains a big problem.

This is an ironic reminder, then, about how State of Law and Iraqiyya could have got things done in parliament if their leaders could just hate each other a little less. Symptomatically, perhaps, when the two finally did vote together in parliament, it was on an issue that is likely to maximize their own powers in the crudest sense imaginable, at the expense of the smaller forces in Iraqi politics.

Posted in Iraq local elections 2013, Iraqi constitutional issues | 4 Comments »

The Syrian Crisis and Its Repercussions for Erbil-Baghdad Relations

Posted by Reidar Visser on Monday, 30 July 2012 9:51

One of the interesting aspects of the crisis in Syria is the way Syria’s Kurds are navigating between regional power brokers in Turkey, Iraqi Kurdistan and Iraq. In particular, there seems to be a degree of tension surrounding the relationship between the largely pro-Turkish regional government of the Iraqi Kurds and Syrian Kurds who are seeking the support of Erbil but are not necessarily quite so supportive of Turkey.

So far, no decisive policy seems to have emerged among Syria’s Kurds in this respect. As for the spillover impact on the Iraqi scene, the Syrian crisis has so far served to further strain relations between the Iraqi Kurds and the central government in Baghdad. Due to tension in border areas with Syria, central government Iraqi forces have been seeking access to areas controlled by the Kurds, and this, in turn, has aggravated the conflict between Erbil and Baghdad.

For the first time, the Kurdish peshmerga ministry has now published a constitutional defence of its position. In a letter directed to Prime Minister Nuri al-Maliki, the Kurds enumerate four constitutional articles that they consider Baghdad are violating when they are seeking access to the Kurdish areas: Articles 9, 61, 111 (some sources say 11 but that makes no sense) and 121.

Article 9 of the Iraqi constitution deals with the Iraqi army. It is one of the few constitutional provisions to specifically demand proportional representation on an ethno-sectarian basis (quotas), and this is conceivably what the Kurds are complaining about, even though there are large numbers of Kurds serving in the Iraqi army controlled by Baghdad.

Article 61 deals with parliamentary powers, and presumably the Kurdish objection relates to the failure of government to have leading military officials confirmed by parliament. This is a real problem, although there are reports that the government has lately sent a list to parliament which is now awaiting approval.

Article 111, if correctly cited, deals with oil ownership (“Iraqi oil belongs to the Iraqi people in all the governorates and regions”)  and is presumably a general criticism of Baghdad regarding the longstanding dispute about whether Erbil or Baghdad should conclude deals with foreign oil companies.

Article 121 specifically gives federal regions the right to organize internal security including “guards of the region” which is commonly seen as the standard reference to the Kurdish peshmerga militia which is now the official internal army of the Kurdish region.

All in all, whereas it seems clear that the central government may need to make some improvements as regards Kurdish representation in the Iraqi army (article 9) and getting parliamentary approval of army officials (article 61), it is hard to see how article 121 could override the exclusive prerogative of Baghdad when it comes to managing national security and external defence  as set out in article 110-2, where “borders” are specifically mentioned. Indeed, article 121 itself at the outset explicitly stipulates that the powers given to the region should not usurp exclusive prerogatives of the central government as specified in article 110.

What this whole issue brings to the forefront, of course, is that whereas Iraq on paper may be a federation, it is in practice a confederacy in which the Kurdish entity appears to be torn between seeking independence and de facto Turkish overlordship. The Syrian crisis is likely to make these tensions more acute, given the apparent greater scepticism of the Syrian Kurds when it comes to accepting the idea of a substantial role for Turkey in deciding their destiny. As a consequence, it is possible that the autonomous Iraqi Kurds, too, will finally have to be more specific and concrete about where exactly they are heading and when.

Posted in Iraq international relations, Iraqi constitutional issues, Kirkuk and Disputed Territories, Oil in Iraq | 14 Comments »

How to Dissolve the Iraqi Parliament

Posted by Reidar Visser on Wednesday, 27 June 2012 16:51

I am no expert in Arabic grammar, but the latest confusion caused by a threat by Iraq’s prime minister Nuri al-Maliki to dissolve parliament is so simple to clear up that even I can do it.

Apparently, the culprit are English versions of the Iraqi constitution and in particular a mistranslation of article 64 which governs dissolution of parliament. It  should be emphasized at first that English versions of the Iraqi constitution cannot be relied upon since there is not an official one. Their only value is that they may be faster to skim through for an English-speaking reader if something needs to be located fast, whereupon the relevant part of the Arabic version should be consulted.

Here is the relevant clause:

يُحل مجلس النواب، بالاغلبية المطلقة لعدد اعضائه، بناءً على طلبٍ من ثلث اعضائه، او طلبٍ من رئيس مجلس الوزراء وبموافقة رئيس الجمهورية

A reasonable translation would read roughly as follows:

“Parliament is dissolved by an absolute majority of its members, based upon a request from a third of its members or a request from the prime minister with the consent of the president.”

Now, possibly due to the insertion of several commas in the Arabic versions, some take this to read this as “parliament is dissolved by an absolute majority… or by a request from the prime minister with the consent of the president.”

That, of course, is dramatically different since it would leave the executive in a far stronger position vis-a-vis the legislature. But is it right? Thankfully, we do not need to rely on non-existing Arabic punctuation rules to serve as arbiter in this case. Instead, relax, breathe easy, and look for prepositions in the rump sentence in the case an attempt is made to link the dissolution of parliament directly to the prime ministerial request:

يُحل مجلس النواب او طلبٍ من رئيس مجلس الوزراء وبموافقة رئيس الجمهورية

“Parliament is dissolved or a request from the prime minister and the president.” The preposition “by” is lacking. This sentence wouldn’t have passed a secondary school exam and it cannot be the Iraqi constitution. If the intention had been to give the prime minister the right to dissolve parliament with the mere consent of the president, the relevant clause would instead have read aw bi talab min rais al-wuzara. But it doesn’t. It just says aw talab min rais al-wuzara. In this case, the preposition “by” (bi) is exclusively linked to the “absolute majority” of the parliament. This makes it clear that the prime ministerial involvement relates to the procedure for introducing the motion about parliamentary dissolution to parliament itself, which in turn will make the big decision about dissolving the assembly.

At any rate, at this point there is nothing to suggest that Maliki’s comments should be seen as anything more than a threat (“he feels forced/under pressure to call early elections”). There is no indication that there is even presidential agreement to introduce the motion to parliament, and in any case Maliki would probably be unlikely to win it. He probably knows it; why would Iraqi parliamentarians risk their own privileges?

The more worrying point is the tone of Maliki’s comments after meeting with Ibrahim al-Jaafari last Sunday, asking parliament to clean up its act before questioning him. There is much to suggest that Maliki may have a stronger parliamentary base than his opponents claim, but language of the kind he used over the weekend may soon lead to the evaporation over any additional support he got recently from disgruntled Iraqiyya MPs unhappy with the no confidence proposal.

Much as his enemies appear unable to muster the 163 votes needed to unseat him, Maliki needs to understand that the implication of this is not that he himself controls 163 votes in the Iraqi parliament.

Posted in Iraqi constitutional issues | 79 Comments »

Maliki Attempts Pre-Emptive Action Against Nujayfi

Posted by Reidar Visser on Monday, 25 June 2012 12:31

Amid continued threats about a forthcoming questioning of Prime Minister Nuri al-Maliki, allies of the Iraqi premier have embarked upon what seems to be a pre-emptive move: A formal request for a parliamentary debate on the performance of parliament speaker Usama al-Nujayfi, with a focus on alleged “constitutional infractions”.

To some extent, the Maliki-Nujayfi struggle has the characteristics of a tit for tat escalation between Maliki’s Shia Islamist State of Law bloc and Nujayfi’s secular and Sunni-backed Iraqiyya. True, this is not the first time there has been tension between the two. But it was mainly after the issue of a Maliki no confidence vote came on the agenda earlier this spring that the idea of sacking Nujayfi as parliament speaker became a prominent issue.

One aspect to keep in mind regarding a potential attempt to oust Nujayfi is that the modalities for getting rid of the parliament speaker are not covered in the Iraqi constitution. Instead, the process is governed by the law on the replacement of deputies. The relevant clause was adopted in a revision of that law in 2007 and the relevant paragraph says parliament can sack its speaker with an absolute majority based on a reasoned request from a third of its members.

In today’s Iraqi parliament, those numerical requirements translate into 163 MPs for sacking the speaker (same as for sacking the PM) and 109 for calling the vote. It is noteworthy that there is in some ways thus a stricter requirement for introducing a no confidence vote against the speaker than against the PM (the latter can be called by 65 members following questioning initiated by 25 MPs). It is noteworthy also that the request from State of Law that has been filed is not an outright call for a vote on his ouster. Rather they are talking about a debate “preparatory to his sacking”. No more than 25 signatures are required for this (61-7-b of the constitution).

Maliki allies say they will ask Nujayfi about his alleged interference in the Exxon Mobil issue in Nineveh as well as supposed “sectarian partition schemes” for Iraq. It may well be possible that State of Law can successfully call the vote for sacking Nujayfi by garnering the required 109 signatures for a vote. To succeed in reaching the 163 threshold for actually replacing him, however, they need a lot more votes than they currently have. In particular, many of those Iraqiyya deputies who supported Maliki on disputed territories may be reluctant to go as far as voting down their former ally Nujayfi. Indeed, the somewhat cumbersome approach of calling for a debate before a no confidence vote on the speaker (when no such preceding debate is legally speaking required before he can be sacked) seems to indicate that State of Law at present may be unable to even reach the 109 mark needed for a direct, straightforward vote on Nujayfi.

Perhaps the most important gain for Maliki in this relates to initiative. It is remarkable that despite all the talk about questioning Maliki, a formal request for doing so has yet to be filed. This in turn means that the issue of Nujayfi’s own status as parliament speaker is now higher up on the agenda and the parliament presidency will need to come up with reasons if they want to procrastinate the debate about Nujayfi.

Meanwhile, the most promising piece of news from the first session of parliament in the new parliamentary cycle that began on Saturday doubtless relates to numbers: No less than 248 out of 325 deputies showed up. This is actually very high for Iraq; hopefully it signifies a new trend. In today’s session parliament there are no major votes on the agenda but attendance figures are once more reported in the same high range around 250. If this trend stabilises, it could mean more in the long run than the continued war of words between Iraqiyya and State of Law.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 6 Comments »

Question Time!

Posted by Reidar Visser on Thursday, 14 June 2012 17:55

Critics of Iraq’s prime minister Nuri al-Maliki must have realized it late yesterday, if not earlier: President Jalal Talabani is not going to call for a no confidence vote in Maliki. A letter from Talabani’s office made that perfectly clear, leaving Maliki’s critics with only one constitutional option for unseating the premier – a questioning before parliament, to be followed in a subsequent and separate session by a no confidence vote.

In theory, holding the questioning itself should be relatively easy. A mere 25 deputies can ask the parliament presidency (all of which is currently anti-Maliki) to summon the prime minister. The threshold for asking for a subsequent no confidence vote is also modest: A fifth of deputies, i.e. 65 deputies in the current 325-member assembly.

What should they ask about? This is where the problems begin. True to form, the critics of Maliki have reportedly formed no less than three committees to concoct nasty questions to be put to the premier in the parliamentary chamber. One story claims Bahaa al-Aaraji, the Sadrist, will lead the charge! Maliki’s allies cannot be any worse than this and have promised catalogues of files of alleged criminal wrongdoing on the part of Maliki’s enemies that will be revealed during the questioning, thereby changing the dynamics radically – or so goes their scenario, anyway.

Few critics of Maliki appear to have taken much notice of a potentially fateful ruling by the Iraqi supreme court some weeks ago which severely limited the ability of parliament to question ministers. Essentially, it said that in order for ministers to be summoned before parliament, there had to be a specific criminal charge or constitutional infraction for which to hold them accountable. The ruling amounted to nothing less than a rewriting of the Iraqi constitution since no such strings are attached there, but Iraqi media have been slow to respond. Importantly, whether one agrees with the ruling or not, it applies to ministers and prime ministers alike since they are all treated on an equal footing in the relevant article of the Iraqi constitution (61-7-c).

The ruling was given in the context of the potential questioning of a Maliki ally – Ali al-Adib who is minister for higher education – but some Maliki supporters are already discussing the potential questioning of the prime minister in a similar vein. The obvious question is, will the issues Maliki’s critics want to raise satisfy the new and more restrictive criteria of the supreme court for a parliamentary questioning (istijwab)?

Generally speaking, questions about corruption or the failure to provide services are unlikely to succeed simply on procedural grounds.

The subjects most likely to meet with approval as suitable subjects for questioning are constitutional infractions on the part of Maliki on very specific issues. Two stand out.

The first is the failure of the Iraqi cabinet, since 2010, to honour the requests for federalism referendums in numerous Iraqi governorates, including Basra, Wasit, Salahaddin and Diyala. This is a very clear violation of the law on forming regions that was adopted in 2006 and promulgated in 2008 as the implementation of article 118 of the constitution and which specifically charges the cabinet with putting the referendums in motion as soon as the requests have been received. At least in Sunni-dominated Diyala and parts of Salahaddin, the pro-federal currents seem to remain alive and as long as the federalists remembered to lodge a formal request for a referendum (alongside all the unnecessary bluster abut “declaring” themselves regions) there is plenty of reasons to ask Maliki what happened to those constitutionally mandated referendums. Article 78 of the constitution charges the PM with administering his cabinet so this is his responsibility.

A second subject that could count as a constitutional infraction by Maliki is the failure to have upper-level military officers by parliament, as demanded by article 80-5. Again, the PM has a special responsibility as administrator of the cabinet.

Whether any such questioning would succeed in a successful no confidence vote remains unclear. For a long time, the numbers in favour of a direct no confidence vote seemed exaggerated and masked the possibility that they might fall just short of the critical 163 absolute-majority mark. Additionally, if any of the two specific constitutional infractions discussed above come into play, Maliki may still be able to win over additional support. For example, on federalism, while the constitution is clear, Maliki might well be able to successfully use arguments of national unity in the assembly in the same way as he has used them in the governorates (where he has been able to mobilise Sunni tribes on an anti-federal basis and translate this into parliamentary support). In other words, Maliki’s implicit argument for violating the constitution for the sake of national unity may curry favour with at least some MPs.

The failure to have high-level military officials confirmed by parliament is an issue which more directly touches on the parliamentary oversight role that lies at the heart of any definition of democracy.  Again, though, Maliki might conceivably succeed in winning over at least some potential critics by referring to expediency and the abysmal efficiency record of the Iraqi parliament.

Whatever happens, it is to be hoped that the no confidence vote, if requested, is allowed to go ahead as long as there is adherence to the basic constitutional modalities. Whoever wins this process will come out strengthened if the rules of the game are followed as much as possible.

Parliament is scheduled to meet again on 21 June.

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