Constitutional Issues with the Iraqi Election
Nerdy constitutional point about the recent Iraqi election and the attempt to form a government that isn't being discussed. I think it could be significant, remember you read it here first.
The timeline set forth in the constitution is rather straightforward about what should happen. The existing President calls the Council of Representatives into session within 30 days that the results are certified, which will be soon (it's actually 15 days with a single possible extension, nobody thinks they won't use the extension). Then at the first session of the newly elected CoR they elect a Speaker. Within 30 days of that session, a new President has to be elected. That president has 15 days to designate a Prime Minister (more on this in a second), who then has 30 days to try to form a government. If he succeeds and gets a vote of confidence for his government from the legislature, great, if not, move on to the next guy.
So it's a sequence. Election. Then first session 30 days later. Then Speaker. Then new President 30 days after that. Then 15 days, then designate PM. Then 30 days for designate to form government.
This type of thing is very typical of a parliamentary democracy. That said, the problem arises because nobody expects it to happen, they expect a package deal wherein all posts are agreed to ahead of time and then the sequence is a formality completed in a day or two. In other words, the first one or two deadlines will slip, or maybe all, who knows, and then the whole thing (Speaker, new Pres, PM, Ministers) will be done in one go. that's what happened last time. They'll elect the Speaker, and elect the Pres, and he'll designate the PM in one day, and he'll name the ministers that same day and get approval for them too, because everything will be pre-arranged.
Could work, but here's the problem. Who does the President designate to form the government? The constitution is not clear, the dreaded Article 76 says "a nominee from the faction of representatives that is the largest". Arabic is not clearer مرشح الكتلة النيابية الاكثر عدداً
I've been in committee debates in the Iraqi legislature, and part of an amendments committee that tried to clarify this by adopting one of the two possible meanings. First is that it means the top electoral list in the elections (ie the coalition that got the most seats). That was the Shi'a view, advanced by Ali Allaq, Maliki's man, and Humam Hamoudi, the INA's rep. Then there was Selim Jibouri who advanced the Sunni position, it's whatever coalition you can form after the election that counts. They couldn't agree, so they just left it ambiguous (the story of Iraqi law these days, but that is another matter. . . .)
So what's the problem? Well if you assume that the list that won the most seats in the election takes the former position, meaning its nominee has to be designated first (and really, is there any doubt they'd argue that in the face of the ambiguity), then the package deal has to include that person, or it cannot happen.
Why not? Suppose Allawi squeaks out the top place ahead of Maliki. Then suppose Maliki and the INA and the Kurds manage to form a coalition and leave Allawi out (everyone thinks this could certainly happen though there are many other scenarios too). You can't orchestrate it. Because you have to elect a Speaker (say they choose an INA person) and then you have to choose a President (say they choose a Kurd), then that President must designate Allawi as the prospective PM. And he'll have 30 days to try to break whatever (almost certainly unstable) coalition has been formed by the others, shave off people here and there, to form a goverment. The package might well unravel in that 30 days, easily. And you know if they try to shut Allawi out and designate Maliki first, then Allawi will go straight to the court and say he had a right to first crack under Article 76 (and there's a lot of Maliki folks on the record advancing that over the past year, Ali Allaq and Abbas Bayati in particular. That was back when they were sure they'd be the winning electoral list). and it will be pretty bad if Allawi loses that argument in the Federal Supreme Court to people who had a 180 degree turn in position to further themselves.
You have a problem too though not quite as sectarian if Maliki is the top vote getting list and they're the ones shut out, they'll do the same thing. Point is, you either have a constitutional controversy that the Court is going to have to resolve (and be perceived as fair in the process, no easy task) or you include the #1 on the list
Not saying this will be a problem, but it might be. I've seen far too many pretty sharp debates in the Iraqi legislature about what "the representative faction with the most members" means back when the matter was completely and totally theoretical (ie pre-elections) not to be worried about it now.
HAH
The timeline set forth in the constitution is rather straightforward about what should happen. The existing President calls the Council of Representatives into session within 30 days that the results are certified, which will be soon (it's actually 15 days with a single possible extension, nobody thinks they won't use the extension). Then at the first session of the newly elected CoR they elect a Speaker. Within 30 days of that session, a new President has to be elected. That president has 15 days to designate a Prime Minister (more on this in a second), who then has 30 days to try to form a government. If he succeeds and gets a vote of confidence for his government from the legislature, great, if not, move on to the next guy.
So it's a sequence. Election. Then first session 30 days later. Then Speaker. Then new President 30 days after that. Then 15 days, then designate PM. Then 30 days for designate to form government.
This type of thing is very typical of a parliamentary democracy. That said, the problem arises because nobody expects it to happen, they expect a package deal wherein all posts are agreed to ahead of time and then the sequence is a formality completed in a day or two. In other words, the first one or two deadlines will slip, or maybe all, who knows, and then the whole thing (Speaker, new Pres, PM, Ministers) will be done in one go. that's what happened last time. They'll elect the Speaker, and elect the Pres, and he'll designate the PM in one day, and he'll name the ministers that same day and get approval for them too, because everything will be pre-arranged.
Could work, but here's the problem. Who does the President designate to form the government? The constitution is not clear, the dreaded Article 76 says "a nominee from the faction of representatives that is the largest". Arabic is not clearer مرشح الكتلة النيابية الاكثر عدداً
I've been in committee debates in the Iraqi legislature, and part of an amendments committee that tried to clarify this by adopting one of the two possible meanings. First is that it means the top electoral list in the elections (ie the coalition that got the most seats). That was the Shi'a view, advanced by Ali Allaq, Maliki's man, and Humam Hamoudi, the INA's rep. Then there was Selim Jibouri who advanced the Sunni position, it's whatever coalition you can form after the election that counts. They couldn't agree, so they just left it ambiguous (the story of Iraqi law these days, but that is another matter. . . .)
So what's the problem? Well if you assume that the list that won the most seats in the election takes the former position, meaning its nominee has to be designated first (and really, is there any doubt they'd argue that in the face of the ambiguity), then the package deal has to include that person, or it cannot happen.
Why not? Suppose Allawi squeaks out the top place ahead of Maliki. Then suppose Maliki and the INA and the Kurds manage to form a coalition and leave Allawi out (everyone thinks this could certainly happen though there are many other scenarios too). You can't orchestrate it. Because you have to elect a Speaker (say they choose an INA person) and then you have to choose a President (say they choose a Kurd), then that President must designate Allawi as the prospective PM. And he'll have 30 days to try to break whatever (almost certainly unstable) coalition has been formed by the others, shave off people here and there, to form a goverment. The package might well unravel in that 30 days, easily. And you know if they try to shut Allawi out and designate Maliki first, then Allawi will go straight to the court and say he had a right to first crack under Article 76 (and there's a lot of Maliki folks on the record advancing that over the past year, Ali Allaq and Abbas Bayati in particular. That was back when they were sure they'd be the winning electoral list). and it will be pretty bad if Allawi loses that argument in the Federal Supreme Court to people who had a 180 degree turn in position to further themselves.
You have a problem too though not quite as sectarian if Maliki is the top vote getting list and they're the ones shut out, they'll do the same thing. Point is, you either have a constitutional controversy that the Court is going to have to resolve (and be perceived as fair in the process, no easy task) or you include the #1 on the list
Not saying this will be a problem, but it might be. I've seen far too many pretty sharp debates in the Iraqi legislature about what "the representative faction with the most members" means back when the matter was completely and totally theoretical (ie pre-elections) not to be worried about it now.
HAH
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