What has transpired over the last two days in Iraq demonstrates well the significant advantages that what is known in the United States as the political question doctrine (other states have it too, under different names) affords. It is a well nigh essential part of the tool kit of any constitutional court, particularly in developing countries. Our recent political maelstrom helps demonstrate why.
For those unaware, the Iraqi constitution obligates the president of the state, within 15 days of his or her election, to charge the “nominee of the bloc of representatives with the greatest number” (الكتلة النيابية الأكثر عددا) in the new Parliament with forming a government. The candidate has 30 days to do that, and to get parliamentary approval for that government. If the candidate fails, another is selected. The question that has roiled Iraq over the last two parliamentary sessions is precisely what is the “bloc of representatives with the greatest number.” In 2010, Ayad Allawi’s Iraqiya coalition earned two more seats in the parliament during the elections. However, at the first seating of Parliament, it was clear that Nuri Al-Maliki had earned the support of some rival electoral coalitions, putting the total number of people in the parliament who supported him above Allawi. The matter was taken to the Federal Supreme Court, which ruled that the term “bloc” could refer to a post electoral bloc formed as of the date of the first parliament session. As to why it was the first session, the Court did not indicate, and it is hard to see why that particular date would be more important than any other time in the process of post election government formation. But that’s what they said.
In any event, in retrospect, I think this decision was a mistake, though I have defended it. I still think anyone from Rod Nordland in the New York Times in 2010 to Ali Khedery just recently who describe the decision as some sort of pro Maliki hatchet job by the court are being completely unfair. There is global precedent for the position the Court adopted and actually, to my mind, it makes far more sense. The parliament shows up, and 125 people say they support candidate X and he is the nominee of their bloc (kutla, different word entirely from the one to describe an electoral coalition), while 81 say that candidate Y is their nominee. Why would we have to select candidate Y because more representatives ran with him in the election? Ultimately, the candidate has to get a majority of the parliament to support him or he can’t for a government anyway, so going by post electoral calculations seems better. At the very least, it is perfectly plausible. If you want to criticize the Iraqi courts, then de-Baathification of electoral lists or independent agency decisions are more fertile ground than this.
The problem thus was not in the reasoning of the decision, but of the predictable reaction. Of course the group that lost the decision was quite upset. Hashimi suggested the court itself was illegitimate because the legislation that was supposed to constitute it had not been passed (it was operating pursuant to legislation that preceded the Constitution), Allawi to this day believes he was robbed of an opportunity, and honestly, it is hard to blame them even if I don’t think their reading of the constitutional text is inevitable. (Less forgivable are the outside commentators who should be able to see the plausibility of either reading, but enough of that.)
When we fast forward to 2014, and just now, the interpretation of this clause erupts into a much more significant crisis. Maliki insists that at the election and on the first day the Parliament sat, he is the candidate of the largest bloc, and he’s almost surely right about that. The problem is that as time evolves, while his bloc does continue to be the largest bloc, it’s not as clear he is the candidate. It’s pretty obvious he’s lost half the country and getting it back will be, let’s be optimistic and say really hard, probably a process measured in months and years. International pressure is building, and Maliki in a last minute desperate attempt says he’ll go back to the Court because the President MUST charge him and nobody else based on its earlier decision. Again, probably right. (Less right are the tanks he puts in the streets as threat–suffice it to say that I have no legal response to what to do when a losing candidate chooses to shoot his rivals. Your problems at that point aren’t about law, so I guess, I don’t know, shoot back?). But constitutionally perhaps he’s not the candidate of that bloc anymore? So they seem to have decided this morning, in nominating another, Haider al-Abadi, who the President immediately charged. Seems like Maliki is on his way out as a result, though who knows given the whole tank thing.
What’s wrong is that it demonstrates I think pretty well that in retrospect, the Court should never, ever have been in the business of figuring out the meaning of this particular constitutional phrasing, as its interpretation should be left to the political branches. The reason is because the Iraq constitution itself gives the power to charge a candidate to the President, and the power to form a government to the legislature, meaning it is the political branches themselves who are responsible for deploying the power given to them. The court has no business interpreting their use given that. Impeachment in the United States, for example, qualifies as a political question in the same way. It is not the court, but the political branches, which decide to convict the President of “high crimes and misdemeanors” and so they get to decide what that means. Iraq gives the Federal Supreme court a role in impeachment, which is fine, but not in charging a candidate, which is wise. So under my solution, the constitution’s phrasing is intended to guide the President as she charges a candidate. We trust that she as the elected head of state will attempt to use it in an honest and objective fashion.
One might object and ask what then prevents the President from picking someone to advance her own political agenda and not because she believes the candidate to be the representative of the largest bloc. Do it this way, you might say, and the President can piss on the constitution. I’m too trusting of the President you say. To which I respond, no, you’re just too trusting of the courts. After all, what prevents the Federal Supreme Court from doing the same, precisely as it was accused of doing? The extreme formalism that pervades Arab legal thought holds tenaciously to this belief that somehow, the “right” answer exists out there and the court once it discovers it will somehow solve the problem. Except quite often there is no such thing as the right answer, just different arguments, and when that happens, and the question is inherently one for the political branches, then there is no reason to think a President will do any worse with it than a court will. Courts are not these divine interpreting machines sitting on high, they’re composed of flesh and blood judges operating in the same muck as the rest of us.
Ah, you say, but if the Court doesn’t decide, then everything is thrown into political chaos. Who wants that? Well, just now, in 2014, the court avoided the question on some silly quorum pretext thing, and the political branches have more or less dealt with it, assuming again the whole shooting Army thing doesn’t happen. Maliki’s inner circle doesn’t like it, and they feel they’ve been robbed as Allawi felt four years before, but it’s the operation of the political branches, and at least the Court survives unscathed or at least no worse off. In 2010, the court got involved, and it hardly avoided the political chaos. It just became a player in it. If Dred Scott and Lochner have taught us anything, it is that when a society is bitterly, deeply, fundamentally divided on a question, a supposedly neutral and legitimate court using formal rules of interpretation to reach a decision does not, at all, ever, resolve the matter. All it does is reveal to the losing side how inherently political rule interpretation really is.
Wish Dr, Abadi the best. To the critics on Twitter who keep pointing out that he has a mediocre resume, I say give the guy a chance. Let’s try to be optimistic. He’s the charged candidate, let’s see what he can do to form a cabinet.