Pursuant to an enlightening exchange with Reidar Visser on Twitter, and losing patience with the 140 character limit, I wanted to post on a point of Iraqi constitutional law respecting executive power sharing.
The core problem that Reidar properly notes that exists with respect to the strategic power sharing council that Ayad Allawi demanded back in 2010, when he was backed by the US and Joe Biden in particular, is that it can have no legal authority to control executive decisionmaking in Iraq. There’s no constitutional basis pursuant to which this council, even if legislatively created, could constrain the constitutional executive. It is kind of funny to remember speaking to American advisers back then in the Embassy, as they would dismiss this, when I told it to them, as a silly formalist highly technical piece of legal mumbo jumbo that I had to get past. Then when Maliki says he’ll agree to the council if it has no legal authority, the same folks would get quite upset at his unwillingness to power share. So, it’s important that it have legal authority, but the fact that it can’t is legal mumbo jumbo.
Anyway, the reason it is starting to strike me as odd is that the Constitution is not actually vest most executive power in the Prime Minister, but the Council of Ministers. This was an important point during constitutional deliberations, that no one person be given too much power. Da’wa was very much on board too, the records make this clear, as evidenced by the comments on the drafts from their representatives on this section of the drafting, Thamer Ghadhban and a fellow named at the time Jawad al-Maliki. Then Maliki starting doing well in elections, and they decided a presidential system with a strong leader was a better idea. But I digress. The Council of Ministers has the power, to quote Article 80 the Constitution, is “to plan and execute general policies of the state.” While it is true that the PM is the “direct executive responsible for the general policies of the state” (Article 78) the easiest way to understand this is the COM sets the policies, which the PM then directly implements.
Moreover, Article 85 calls for the Council of Ministers to develop internal regulations on how it does its business. So it seems to me that instead of having a “strategic council” that would have to be advisory, you could just make sure the council of ministers was the inclusive body you want it to be (and include a few ministers without portfolio if need be, the Constitution does not define the number of Ministries, and for good reason) and then say that particular decisions, relating to defense or security or de-Baathification policy or whatever, must be approved by a supermajority. Moreover, the regs themselves couldn’t be amended without 80% vote.
What’s wrong with this as legal alternative? What am I missing? Granted there’s no ego stroking in this one, Allawi can’t claim he’s running some supervisory council to oversee the PM, but rather a minister working in the Council of Ministers itself technically under the PM, but the power distribution is the same. You might think it a bad idea politically, but it seems to me legally, it does precisely what the strategic council was intended to do, except in a body vested with legal and constitutional powers. The Prime Minister ignores the Council, you take him to court for a constitutional violation, an option simply not present as concerns the strategic council.
Just a thought