Iraq and Gulf Analysis

Archive for the ‘Rule of law’ Category

Legality and Constitutionality Questions in Iraq’s Reform Push

Posted by Reidar Visser on Tuesday, 18 August 2015 21:50

A few quick points regarding the sudden reform push by Iraq prime minister Haydar al-Abadi, representing the first significant constitutional developments during a term so far characterised above all by the war against ISIS.

-Proper legal procedure was not followed when the vice presidents were voted out of office by parliament on 11 August: According to the law on presidential deputies, the initiative for relieving them of duty should have gone through the president, not the prime minister.

-In accordance with the law on presidential deputies, the Iraqi parliament is in any case under a legal obligation to elect a new presidential deputy within 15 days from the post became vacant.

-The Iraqi vice presidential position is a position stipulated and hence protected by the constitution. A cabinet that chooses to ignore this could in theory also send parliament on an indeterminate vacation. Whereas it was a good decision to get rid of two superfluous VP posts that were created only to care for the egos of certain bloc leaders, to abolish the VP position altogether seems distinctly unconstitutional.

-Also exactly like in July 2011, no proper constitutional procedure was followed during the downsizing of the cabinet from 33 to 22 ministries. As per the Iraqi constitution, each of the ministers relieved of duty should have been subjected to an individual vote (and discussion) in parliament. Again, the decision in itself is laudable but the procedure that was followed is not.

-An interesting aspect of the recent reform measures concern the attack on ethno-sectarian and party quota-sharing arrangements (muhasasa). Such attacks have been part and parcel of political correct rhetoric in Iraq ever since the emergence of new democratic institutions, but only under Abadi’s recent reforms has it been taken seriously – to the point where Kurds, in particular, are worried that it will mean majoritarianism and informal Shia dominance in practice. It should be stressed that this aspect of the reform IS constitutional. Ethno-sectarian proportional representation is only an explicit constitutional requirement as far as the armed forces, the parliament, and a one-off, now defunct, committee for reviewing the constitution are concerned. It has nonetheless become a de facto organising principle at almost every level of Iraqi government.

-The Iraqi government should be given credit for allowing public protest and persevering with reform, even as it faces an existential external threat in the shape of ISIS. The Kurdish regional government could in this case learn something from Baghdad: External threats are in themselves not an argument for setting democracy to one side. However, if the Iraqi government opts to cheat on legal procedure, its reforms are likely to be stillborn. Not least with respect to the importance of getting the judiciary on board for reform – it is in itself highly in need of an overhaul – it would be wise to stick to instruments and arrangements that are clearly within the constitutional and legal limits.

Posted in Iraqi constitutional issues, Rule of law | Comments Off on Legality and Constitutionality Questions in Iraq’s Reform Push

In the Conflict over Electoral Candidacies, the Iraq Parliament Stands up for the Presumption of Innocence

Posted by Reidar Visser on Wednesday, 19 March 2014 19:41

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Following a session on Sunday featuring MPs supportive of PM Maliki’s moves to pass the annual budget ahead of 30 April elections, the Iraqi parliament today brought together a group of MPs critical of Maliki. In a symbolically important move, the assembly passed a measure of interpreting the elections law that effectively challenges Maliki’s use of the Iraqi judiciary to bar political enemies from standing in the elections.

The move in itself represents a somewhat ambiguous parliamentary act, referred to in the official parliamentary proceedings as a “legislative decision” (qarar tashriyi). Its essence involves a more specific interpretation of article 8, third, of the new Iraqi elections law that was passed in late 2013. That law, like previous laws, had vaguely specified that candidates must be known to be of “good behaviour” or “good standing”. In practice this has been used until now to disqualify candidates for whom arrest orders may exist. (Maliki aide Tareq Harb has provided a wonderful exegesis of how this works in practice: One arrest order or charge does not suffice, but where there are multiple orders this is used to disqualify!) The parliament decision today is emphatic that an actual conviction must have ensued for there to be legal grounds for barring a candidate.

Essentially, the message from the Iraqi parliament is that, until a court of law has considered the case, statements by the Iraqi prosecution or police are of no relevance as far as the candidature of an individual is concerned. The decision today specifically refers to the presumption of innocence, stressing that an individual is innocent until proven guilty. This point is worthy of repetition after a series of politically tainted prosecution attempts. Still, it should be mentioned that the decision today appears to be the direct result of the fact that several existing MPs were themselves attempted barred from the elections, a fact which the official parliament record actually quotes.

The number of deputies supporting the motion – 165 – is interesting. It is more or less the same as the 164 deputies who supported the first reading of the annual budget on Sunday in a move seen as pro-Maliki. The 325-member Iraqi parliament is in another words divided in two halves, with at least a handful of deputies wavering between the two camps.

The parliament session today concluded with adjournment “until further notice”. Parliament speaker Nujayfi may be able to effectively filibuster the meetings of the assembly in this way, but it will be increasingly difficult for him to explain to the Iraqi public why no parliament meetings are being held and why parliament is not fulfilling its constitutional duty to pass the annual budget. The absence of political consensus is not an  argument since there is no constitutional requirement that decisions be passed with consensus. A key question going forward is whether the deputies seen to be wavering between the Maliki and Nujayfi camps this week will move more decisively one way or another over the coming period.

Posted in Iraq parliamentary elections 2014, Rule of law | Comments Off on In the Conflict over Electoral Candidacies, the Iraq Parliament Stands up for the Presumption of Innocence