I was actually going to avoid the current wrangling involving Iraqi politics in today’s post–as a lawyer and not a political scientist I try to stick to my domain of expertise. But the recent insistence by Maliki’s State of Law deputies that they are going to move a no confidence motion against President Fu’ad Ma’sum if he does not name Maliki as the person to form a coalition are a little too much, and require a bit of legal and constitutional elaboration to explain how ridiculous they are.
The primary distinction between a parliamentary and a presidential system is that in a parliamentary system, the chief executive, the Prime Minister, is herself a creature of the parliament, as is the government she forms. The government is formed by a vote of the Parliament, not by direct election from the people. Hence, the cabinet ministers do NOT serve at the pleasure of the President (a statement you hear often in the United States, a presidential system) but at the pleasure of the parliament, which can withdraw confidence in any individual cabinet member at any time, or from the Prime Minister, which is the equivalent of sacking the entire executive (referred to in such systems as “the government”) and instituting new elections for a new parliament which will then bring forth a new executive. So Parliament may withdraw confidence in a Prime Minister any time it wants to, and for any political reason it wants to though at a cost of firing itself.
In a presidential system, the chief executive is the President, who manages his own cabinet. Usually there is some sort of confirmation process using the legislature, to ensure he doesn’t pick anyone completely unacceptable, but by and large, his picks are given deference by the legislature. More importantly, they are not subject to withdrawal on legislative whim. The president is also directly elected, serves a fixed term and is certainly not subject to the same level of parliamentary oversight. The legislature cannot withdraw its confidence in him, either. It makes no sense, it never put him in power, so nobody actually cares or has to care whether the legislature likes the executive or not. They have to work with the guy who got elected.
Now usually there is some way to remove a President or cabinet officer, if they molest kids or use the office to commit criminal acts or whatever, and we call that impeachment. Often the legislature is involved in that, though it need not be, and at times a judiciary as well. In the US it involves both houses, and the Chief Justice. In any event, it is not supposed to be some sort of expression of political disagreement, it’s supposed to be akin to a conviction for a crime, which is quite different of course. Where a parliament may absolutely and unquestionably withdraw confidence from a government that, say, gets the country into an unpopular war, the same cannot be done for a President, unless he committed some sort of serious legal infraction to do that.
To the matter at hand, Iraq is generally a parliamentary system, meaning that the Prime Minister may be sacked by the Parliament at its pleasure. However, like many parliamentary systems which lack a monarch, it creates a President who can act as largely a ceremonial head of state and do a lot of what the Queen of England does. (Israel and India do this too). That person, being a president, cannot have confidence withdrawn from them, even if they are selected by the Parliament (as they often are, because it seems a bit wasteful to hold an election for a person whose power is largely symbolic). Hence, the Iraqi constitution permits the president to be “relieved from office” if, first, the Federal Supreme Court issues a verdict (‘idana) against him. The term ‘idana is clear to any Arab lawyer, it refers to a verdict for a criminal act. Then, and only then, can he be relieved, and then, and only then if the ‘idana relates to one of the following things: (i) perjury as to the constitutional oath, (ii) abuse of the constitution, and (iii) high treason. (I translated intihak al-dustur as abuse of the constitution because I think constitutional “violation” sounds too mild to my ears as translation for intihak. It’s not some arguable interpretation of constitutional text the court later disagrees with, it’s a clear abuse of the powers of the office.)
So, sorry, SOL, but you cannot withdraw confidence from the President just because you don’t like his decision on who he chooses to form the government, so long as his choice is at least arguably the leader of the largest parliamentary bloc. And if you think it’s not, then you have to get the Court to declare his decision a crime, and then get a an absolute majority of the Parliament to agree with you. And if that happened, because he decided on a person you didn’t like, well then whatever fault of his was involved in picking the wrong candidate was overwhelmed by the SOL spitting on the constitution to use what is supposed to be a criminal measure to achieve a political objective. It’s been done before, in Iraq and elsewhere, and it can be effective. But whatever you want to call it, just don’t call it constitutionalism. Everyone is ignoring their constitutional duties to get it done.
One final thought, to those wont to describe the Constitution as imprecise and hasty in its drafting, leading to this problem. I disagree generally, but particularly in this instance. It would be absolutely impossible, I think, to foresee what types of electoral coalitions will exist in all future elections and their outcomes, so as to make it possible to apply some sort of mechanical test by which the President is to designate a person as PM-designate to try to form a government. You could just say parliament does it on its own, but then you have a real mess as parties try to form and unform coalitions with everyone working at cross purposes at once. (Am I wrong? Submit language in comments if I am.) Letting a generally figurehead person use some level of judgment and discretion as to who the biggest bloc is, with appropriate consultations if he wishes, and letting them pick their leader to try and form a government, seems as good as any method. Ultimately, nothing matters until and unless the parliament approves the formed government anyway. I really don’t think the problem is the imprecision of the constitutional text. The problem is the inability of the Iraqi political elite to work together to save their state. And no constitution in the world can fix that.