Iraq’s Parliamentary Crisis - An Unexpected Constitutional Exit?

On November 8th, Iraqi legislators reached a compromise agreement over an elections law for the upcoming 2010 national parliamentary elections. The resolution to this bitter standoff −which centered on the disposition of Kirkuk in the electoral law and was part of a broader struggle to establish precedents over the city and other disputed territories−was hailed by Iraqi Prime Minister Nouri al-Maliki as an "historic victory of the will of the people." When Iraq’s Sunni Vice President unexpectedly exercised his constitutional prerogative to veto this hard-fought parliamentary compromise, it appeared Iraq was headed for a more serious political and, potentially, constitutional crisis. Without such a law, elections cannot be held, and the constitution mandates that the elections take place at some point in January 2010. With these further delays, it would appear that meeting this deadline will be logistically impossible.

Concern was heightened by the subsequent passage of what appears to be a retaliatory law that would potentially reduce Sunni representation based on the geographic allotment of seats. The law was rammed through the parliament on the basis of a Shiite-Kurdish bloc that hearkened back to the more crudely ethno-sectarian politics of the recent past. This polarizing action would appear to increase the odds for another Hashemi veto and a protracted stalemate if a three-fifths majority could not be stitched together to overturn a second veto. Such a scenario would further delay parliamentary actions, compounded by the fact that the parliament has recessed until December 8th for the ‘Eid al-Adha holiday.

From the perspective of the United States, which has essentially pegged the beginning of its withdrawal to the holding of national parliamentary elections, this sudden reversal created some unease (U.S. officials, including Gen. Raymond Odierno, Commanding General, Multi-National Force – Iraq, have assured that the existing framework for the U.S. drawdown retained a great deal of flexibility and that temporary legislative delays would not affect U.S. plans). But successful national elections that would empower a legitimate and stable government able to deal with the myriad political problems facing the country have become the touchstone for U.S. withdrawal. 

But, unexpectedly there now appears a possibility for an new entrant to this legislative tussle, namely, the Federal Supreme Court. The revised legislation is controversial from a Sunni perspective due to the manner in which population totals and seat allocations are made. The revised law hearkens back to the distribution of seats in the 2005 elections, which was based on the number of registered voters at that time and would, on its face, reduce the total number of likely Sunni representatives in the parliament (the law itself is exceedingly complex because of reserves for women and minorities and other compensatory seats, but the net result would have appeared to be some level of Sunni disenfranchisement).

On his blog, however, Reidar Visser has notedhelpfully that the Court previously ruled that 2005 elections law violated Article 49 of the Iraqi constitution, which mandates that the constitutionally-designated ratio of 1 representative for every 100,000 must be based on “the Iraqi people as a whole,” indicating a fidelity to population figures as opposed to registered voter tallies. While this would appear to be an exceedingly arcane legal conclusion, its potential ramifications are far-reaching if the Court intervenes in the current squabble or influences a face-saving course at the stage of implementation. This is because even if the Shiite and Kurd drafters drafters did not have a compromise in mind, the population tallies might be updated in any course to better reflect actual total population. Using old numbers would seem, prima facie, to violate the court’s interpretation because updated numbers that better reflect population growth already exist. So even if the 2005 numbers reflect passive registration that is meant to include all eligible voters, the mere fact that better numbers exist should make those earlier voter rolls inoperative.

Even if the Court does not officially intervene, its previous guidance might force an interpretation of the law that is at considerable odds with the general current of those Shiite and Kurdish legislators who pushed the second bill through parliament. Interpreting the language of the current bill in this fashion could also save further legislative wrangling because a new law would be unnecessary since the Sunni community and its representatives would presumably be more satisfied with an updated tally that better reflected their actual population figures. A Shiite or Kurdish veto at that stage would be less likely since they championed the revised law in parliament.

In many ways this would be an important marker for establishing the resiliency of Iraq’s fledgling institutions. The notion of independent judicial review is a powerful tool in balancing the course of constitutional governance, and the ability of such an institution to establish neutral constitutional benchmarks would represent an encouraging development. 

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