The Supreme Court Rules against Power-Sharing in the Iraqi Legislature

Posted by Reidar Visser on Sunday, 5 December 2010 12:13

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.