Iraqi High Court Certifies Election Results: A Comment on the Coverage
I've written about this issue before on Jurist (http://jurist.law.pitt.edu/forumy/2010/04/iraqi-high-courts-understated-rise-to.php) but The New York Times seems to have some sort of unnatural obsession with the manner in which Maliki is advancing his position in the post election period. The contention that Maliki is up to something sleazy just took a turn for the worse with the High Court's certification of the election results, results Maliki had sought to challenge, unsuccessfully.
First, as to the fact that Maliki is acting in a bare knuckles fashion for challenging the results, let's be clear. He challenged election results, it is true. It isn't unusual when you have two seats less than the person directly before you to challenge election results. It is a legal right in any democracy to allow that when the vote is this close If he hadn't challenged in that case with the votes so close, it would have been odd. And he LOST the challenge. So you'd think that fact, the Court certifying that Maliki has fewer seats than he thought he'd end up with, would help prove judicial independence.
Apparently not to the New York Times. They have managed to assert twice that I've read that the Court's interpretation of Article 76, which would allow Maliki first crack at forming the government, was somehow improperly obtained and was a strained reading of the Article which nobody had expected. First, as to the text, it allows the "bloc with the highest number of representatives" to form the government. Maliki says this means a bloc that can be formed after the election, by say the alliance of two parties that had stood for election separately. So if he perfects his alliance with the INA it would be his group and the INA. Allawi says it's only the pre election parties that are being referred to by "bloc." The notion that the text makes one of them right and the other wrong is rather silly. It's ambiguous, and the Court picked Maliki's version. The idea that the Court was unnaturally influenced seems odd--clearly the more important decision to Maliki was the number of seats. even if Allawi had first crack, if Maliki kept a majority coalition together that would only be a formality--Allawi would get first crack, fail to secure a majority and Maliki could then get his chance. It's far more important to maximize seat gains. What kind of captive court is it that decides against the government on the more important of two issues and against it on the less important? And why would anyone assume that a court is captive for no reason other than it decided for a government in a single case? How often do our courts do that after all?
As to the Court interpretation of Article 76 being a surprise and something nobody had expected, well sorry I was in the damn room when the amendments to the Constititution were being discussed at great length, anyone who thinks this wasn't controversial long long before the election is just flat wrong. The only irony is that the groups switched sides. it was Sunnis who wanted the interpretation that "bloc" could mean post electoral bloc because they never thought they'd win an election. They hadn't counted on the Shi'a split and Sunni unity. And of coruse the Shi'a had never thought they'd lose so they adopted the reverse interpretation. So yes politics caused hypocrisy. Hardly a surprise. The deeper point is we all knew, iraqis, the UN and the US Embassy that Article 76 might mean something. Everyone had people working on this, again long before the election.
But the real problem in this coverage it seems to me, aside from a general liberal distrust of Iraq and an insistence that its institutions are not working when in this instance as concerns this issue they actually worked quite well, is a profound ignorance of parliamentary politics on the part of what is a global paper. Sure in our presidential system it would be an outrage not to let the winner be president. But this isn't our system, the prime minister isn't the guy with more seats than anyone else, it's the fellow who has managed to get the vote of the elected legislature to form his government. He isn't voted on by the people, the party list is, and they sit in the parliament and that parliament picks its government. And legislatures don't vote in pluralities, they vote in MAJORITIES, 50% plus 1. In that context, the result Maliki seeks isn't so radical in the context of parliamentary systems, Maliki's move is a recognized one, it's standard vanilla for a close minority party to try. The Iraqi court had one recent precedent it really could have cited, and while it would have satisfied the New York TImes, or at least shut them up, it would have stirred up the Sadrists--that of Israel. What happened in Israel in the last election, what Netanyahu pulled off, is EXACTLY what Maliki is seeking to pull off in Iraq, and the Times seems to think it's awful in one context, consonant enough with democratic politics in the other not to merit criticism or even mention. (I on the other hand, no fan of Bibi, find both moves, Bibi's and Maliki's unproblematic on this matter). Livni had more seats, as Allawi has more seats. Bibi had more electoral allies, as Maliki hopes to cement for himself. So Peres asked Bibi, not Livni, to form the government. Unremarkable, to the American left. Except when it happens in iraq. THen it's bare knuckles and unethical and sleazy and has to involve ill dealing with the Court or how could it happen. Silly, really.
There is another problem though, and that is of the Iraqi Court's failure to really address the basis of its position because of the extremely formalist biases that prevail on the court. That is, an American reporter who has seen American case law sort of expects some sort of policy discussion to enter into a Court opinion. Here, the policies clearly support Maliki's position, and I said that to the anger of Ali Allaq and Abbas Bayati back in September of 2009 when they as Shi'is supporting Maliki took the other side (again, back when they thought they'd have more votes). What is the point of asking a person to form a government when you know for a fact that a majority isn't with them? That is, if Maliki and the INA form a strong alliance, as is certainly their prerogative, then why ask the party with 35% of the vote to form the government when parties with 30% and 25% have indicated they will oppose the leading party? He won't get the votes, stop wasting time and let the guy who will actually be able to form the government to form the government is the only sensible policy.
But a formalist court doesn't want to discuss policy, that would suggest it engages in preferences over policy or that it has a role in making law, and formalists insist that judiciaries don't make law, only legislatures do. So it has to parse words. But there's nothing to parse it's one ambiguous phrase. And to admit ambiguity is to admit uncertainty in law, and formalist judges in Iraq will accept no such thing. So they can't just say "look it means one or the other, and we pick the other just because we have to pick." The Court can be comparative, but unfortunately the best example not far away is one it cannot use for political reasons. (Iraqis do refer to Israeli politics in constitutional discussions often as a model, though following the example, with "and God curse Israel" after just pointing out something Israel that could be useful. Even that would be hard for the court however. Closed door sessions are one thing, open public positive comparisons another. You could do it and survive, you can even visit Israel and be elected a member of parliament in Iraq, it has happened, but there's a political price to these things.) So the court really provided no explanation at all which admittedly is odd. Not that it suggests anything improper--you can make good arguments for the position after all whether or not improperly influenced--but only leaves one scratching their head.
But it is what it is I suppose. The American left determined to see Iraq fail to get back at George W. Bush, and Iraqi courts masking perfectly legitimate policy decisions and adding to the difficulties. Not much to do other than comment on it all.