Iraq and Gulf Analysis

In a milestone ruling that potentially signifies a reawakening of the Iraqi judiciary as an independent force in Iraqi politics, the federal supreme court has ruled that the current bylaws of the Iraqi parliament, now under revision, are in conflict with the constitution. Specifically, responding to a query instigated by Iraqiyya and its new speaker of parliament, Usama al-Nujayfi, the court says that the notion of a collective, three-man presidency of the parliament is at variance with the vision of pre-eminence for the speaker himself in the constitution, with his two deputies filling more auxiliary roles.

The bylaws of the Iraqi presidency, adopted in the heyday of ethno-sectarian quota-sharing in 2006, went further than the constitution in reproducing the paradigm of tripartite consensus in Iraqi politics. Whereas the constitution enables the election of the speaker separately from his deputies and without any special majority requirements, the bylaws create the “presidency of the parliament” as an institution that to some extent must act in concert when it comes to setting the agenda of the parliament. Importantly, whereas the vision of the speakership in the constitution seems clearly majoritarian, the bylaws, through the collective presidency, in several instances in the previous parliament enabled dissatisfied factions to obstruct or at least delay legislative projects with which they were unhappy.

To Iraqiyya, this ruling by the court should serve as a reminder of the significance of the speakership that they received as part of the political agreement clinched on 10 November. At, the same time though, it would prudent of them to be aware that their logic of an orthodox reading of the constitution will probably apply with equal force to another institution that is much debated these days: the national council for strategic policies, which was identified in those talks as the keystone of Iraqiyya’s participation in the next government, but which is not even mentioned in the constitution – precisely like the “[collective] presidency of the parliament” which Iraqiyya complained about to the supreme court.

That in turn obviously raises the question of what sort of political participation constitutes the best strategy for Iraqiyya in the coming parliamentary cycle, with two tendencies already discernable within the party and sometimes within the same politicians! For example, Nujayfi has fronted the bid to boost the powers of the speakership as a national institution, and yet on other occasions has resorted precisely to the logic of ethno-sectarian quota sharing (muhasasa) that he tried to avert in the case of the speakership. By way of example, he has discussed the idea that Yazidis and Turkmens should have representation in government on an ethno-sectarian basis, and has charged a 3-person committee (Sunni, Shiite, Kurd) with preparing a draft law for the projected council on strategic policies. Other Iraqiyya representatives from Diyala have even made the point that their governorate needs to achieve representation in the next cabinet! By pursuing this kind of thinking to its logical conclusion, Iraqiyya would end up making a “component” (mukawwin) of every faction and village in Iraq, thereby contradicting the very nationalist values that supposedly formed the basis of their recent election success.

At the same time, the inflationary pressures of Iraqi politics mean that the next Iraqi government is going to be a densely populated body: Already, ISCI with its 18 deputies says that should equate “4 to 5 service ministries”; Iraqiyya itself says it expects around 12 ministries (91 deputies), whereas the all-Shiite National Alliance is talking about 20 to 25 ministries for itself. We have not even mentioned the Kurds so far, but do the math and we are looking at an overcrowded government potentially so weak and fragmented that Iraqiyya would probably do better in a purely opposition role.

Meanwhile, other parties are apparently discovering potential problems in the deal they agreed on 10 November. Apparently, a query is being considered by the supreme court regarding the veto powers of the president, with the Kurds apparently disconcerted that these prerogatives are now gone. Other reports say Iraqiyya plans to introduce a law on the powers of the vice-presidents, which again are not defined by the constitution. Hopefully the recent ruling by the supreme court means it is now in a better position to adjudicate this rush of greedy office seekers than it was just half a year ago.

Perhaps unsurprisingly, it was the main victor in the 10 November political agreement that would be first to publicly point out the deeper significance of parliament’s vote on Jalal Talabani on 11 November: The powerful presidency council is now dead.

Of course, everyone who has read the Iraqi constitution will have been aware of this for many months or maybe even years. The tripartite presidency with veto powers was a one-off transitional arrangement stipulated to last for the first parliamentary cycle from 2005 to 2010 only, to be superseded by the more ceremonial “ordinary” presidency, without veto power. Nonetheless, even though the constitution is perfectly clear, there has been some confusion about this subject in the Iraqi press, with some journalists even believing that the two deputies of Talabani in the presidency council remained in office and were still vice presidents beyond 11 November!

Today, however, Husayn al-Asadi of State of Law made this point very publicly in two ways. Firstly, he emphasised that the new presidency has no veto powers. Secondly, he suggested that there would be three deputies to the president going forward, rather than just two. Since the deputies will have less power than the essentially powerless president they are pretty meaningless in the government formation process, even though some players still seem to have an interest in them for unclear reasons. The key point, though, is Asadi’s revolt against the tripartite formula since in his vision there would be four people involved altogether, presumably from the four biggest blocs. This reflects the constitution, which unlike in the case of the presidency council with its explicit three-person formula does not specify the number of deputies for the ordinary president. It just says it should be “one or more”. So it could be three, as per Asadi’s ideas; it might as well be twenty-four since these deputies will not have any power anyway. With the current level of inflation in Iraqi politics, there still seems to be a market for “deputy presidents” and “deputy premiers” for candidates that are necessary to placate and who would normally be given a ministry without portfolio.

It should be added that Talabani’s own election to the ordinary presidency was not one hundred percent constitutional, since the law called for in the constitution for selecting the president has not been passed. Nonetheless, in contrast to the situation for his deputies – which arguably cannot be elected at this point since the constitution also calls for a law for their election and, importantly, a specification of their numbers – the modalities for the president’s election are pretty much spelt out in the constitution anyway. It would be a far greater constitutional infraction to try to hold on to the presidency council, as some Iraqi lawyers such as Muayyad al-Izzi have suggested. In fact, if an attempt were made at this stage to resuscitate the presidency council, it would be necessary to cancel the election of Talabani on 11 November and his subsequent nomination of Maliki for a second term, since he was clearly elected on the basis of the constitutional article 70 (the ordinary presidency) and not 138 (the transitional presidency council).

Of course Izzi was not the only one to misread the constitution. Another one was Joe Biden, who induced the US president to personally make phone calls to the Kurds in a desperate attempt to make them hand over the essentially valueless presidency to Iraqiyya instead. These overtures met with humiliating rejections since Talabani was interested in the presidency personally, even though to Kurdish interests as a whole it was a less rational move and one which might jeopardise their chances of getting hold of something truly important, like the oil ministry. But to other players, the insignificance of the deputy president position should now become clearer, with likely intensification of the competition for the jobs that do matter to follow.

The BBC managed to create a story from Iraq today: “Iraq is moving one step closer to forming its next government”. The intrepid Gabriel Gatehouse identified developments as “important”. An Iraqi was interviewed and expressed hope that Nuri al-Maliki would form a government that would be “professional… and free from sectarian quota-sharing (muhasasa ta’ifiyya). The BBC elected to not translate the latter part of the comment, preferring instead to serve more traditional fare: “Government to include Sunnis, Shiites and Kurds” shrieked a rolling headline.

In actual fact, today’s “development” in Iraq was entirely uninteresting, save perhaps the fact that it managed to delude the world’s so-called leading news provider (again). The truth is that President Jalal Talabani today repeated exactly what he did on 11 November: He charged Nuri al-Maliki with forming the next government. There is absolutely no constitutional basis for first charging Maliki once and then doing it all over, supposedly in a more “official” way, 15 days later. Talabani could have waited 15 days before naming anyone, but he didn’t. Constitutionally speaking, his action today is completely bid‘a (innovation) and arguably unconstitutional.

Everyone knows that the real reason Talabani did this was to give Maliki more time to form the next government, ostensibly 30 days, but everyone knows that that deadline, in turn, will be violated too. Perhaps more interesting as an indication of where we are headed is the announcement today by Ali al-Allaq of State of Law that new ministries will be created! Of course they will. That is not to serve “Sunnis, Shiites and Kurds” as per the hapless BBC headline, but to satisfy the requirements of greedy politicians claiming to speak in the name of those communities.