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No Second Veto: The Election Law is Approved by Tariq al-Hashemi and the Iraqi Presidency

By Reidar Visser (www.historiae.org)

6 December 2009

In a bazaar-style compromise, the Iraqi parliament has kept the best parts of the amended election law and thrown out the more dubious ones, thereby averting a second veto by Vice President Tariq al-Hashemi.

The first veto of the election law by Hashemi caught most observers by surprise. The veto itself was perfectly logical, and, contrary to what the international mass media has written, not particularly sectarian in origin or outlook. It included several elements, but the most important one focused on the procedures for exiled voting (in the media this was misleadingly portrayed as something that catered for Sunnis exclusively). This demand, in turn, was actually addressed by parliament in a very constructive way, since the new procedures – exiled voters will vote according to their “home” governorates – restore the rights of the exiles and put them on more or less the same level as domestic Iraqis. But Hashemi’s big gamble was the possibility that parliament might use the opportunity to pick apart other aspects of the law that they had second thoughts about. And that was exactly what happened: Specifically, the Kurds, who had been focusing their energies on securing arrangements for Kirkuk that would not involve too much extra scrutiny of the disputed election registers there, moved down to the next item on their list of priorities: The distribution of seats between governorates. The Kurds were unhappy with the apportionment that had emerged on the basis of the up-to-date statistics from the ministry of trade, and instead sought a reversion to the 2005 statistics as starting point, allowing for an annual 2.8% increment across Iraq. Many Shiite Islamists – who are generally eager to get on with the elections immediately after the holy month of Muharram – agreed to the Kurdish demand even though this did involve significant seat reductions for some Shiite-majority governorates.

The reversion to the 2005 statistics left Iraq with an election law full of contradictions. In the first place, an earlier federal supreme court ruling had specifically stated that the seat distribution should take into account the full Iraqi population (for this reason it specifically criticised the 2005 law in which the seat distribution was based on registered voters), which meant that the reversion to five year old data seemed strained and could in theory be construed as unconstitutional given the availability of more up-to-date numbers. Additionally, in a much overlooked detail, the new arrangements really made a mockery of the provisions for Kirkuk that had been arrived at in the first iteration of the law (and more theoretically applicable to any other governorate suspected of unnatural population growth), according to which the whole point was to investigate discrepancies between the registers for 2005 and 2009 with a view to adjusting the total quota on the basis of 2009 realities! That whole provision obviously lost most of its relevance as soon as 2005 was adopted as the point of reference, but the Kurds were happy to ignore the contradiction as long as they were allowed to use the 2009 registers for defining the electorate of Kirkuk. Thankfully, today’s agreement in the Iraqi parliament involves a return to the seat distribution largely as defined by the first ministry of trade statistics from 2009 to which the Kurds objected. The difference is that this time the distribution key is written into the law through a “decision” in the Iraqi parliament, and the Kurds have been awarded 3 additional seats as in Dahuk and Sulaymaniyya as compensation for accepting the new statistics.

The bargain itself was reminiscent of the atmosphere of a bazaar: Some weeks ago, Mahmud Uthman, often a bellwether of the Kurdish maximalist position, said he had expected some 10 to 15 extra Kurdistan seats in the 2009 apportionment. When Hashemi demanded that the original 2009 statistics be applied as precondition for averting a second veto, other blocs in the parliament first suggested that the Kurds could be given two extra seats to compensate for grievances they might have relating to the most recent statistics. This quota was increased to three seats today, reportedly after substantial pressure on the Kurds by the Americans. The Kurds thereby keep the number of seats they would have received by a reversion to 2005, but the other governorates also keep the quotas they had originally been awarded, hence in some cases still improving their relative weight vis-à-vis the KRG governorates. For example, the contentious ratio of KRG seats to Nineveh seats was 1.84 in 2005; it was changed to 1.22 in the first apportionment based on 2009 statistics, then to 1.41 as a result of a reversion to 2005 figures; it now stands at 1.32 as a result of the latest compromise. Apparently, Kurdistan has also been specifically assigned two out of the 15 compensation seats; presumably these are fresh additions and not the two minority seats for Christians previously specified for Dahuk and Arbil, since the previous iteration of the law said that minority seats are to be taken from the governorate seats. Technically speaking, the whole package ("Seats 2010 (3)" below) has been dressed up as an "interpretation" of the awkward system involving the old 2005 statistics in the previous version of the law.

 

Governorate

Seats

2005

Seats

2010

(1)

Seats 2010 (2)

Seats 2010 (3)

Basra

18

24

25

24

Maysan

7

10

9

10

Dhi Qar

12

18

17

18

Muthanna

5

7

7

7

Qadisiyya

8

11

10

11

Babel

11

16

16

16

Najaf

8

12

11

12

Karbala

6

10

9

10

Wasit

8

11

10

11

Baghdad

59

68

72

68

Anbar

9

14

14

14

Salahaddin

8

12

11

12

Diyala

10

13

14

13

Nineveh

19

31

29

31

Kirkuk

9

12

12

12

Sulaymaniyya

15

15

17

17

Arbil

13

14

15

14

Dahuk

7

9

9

10

Subtotals

230

307

307

310

Compensation seats

45

16 (including 8 minority seats)

16

15

Total

275

323

323

325

 

The most significant aspect of this compromise is that in the end the Kurds and the Shiite Islamists who had voted in favour of the second batch of amendments eventually backed down from their threat to ignore Hashemi and push through a law according to their own preferences with a three-fifths majority in parliament – which was theoretically possible and would have been veto-proof. That they instead chose to take the veto seriously is in itself quite important, because the atmosphere in Iraqi politics over the past weeks has been heated, with frequent attempts by politicians to label anything they don’t like as “unconstitutional”. Remarkably, in addition to the Kurds, this time Daawa leaders have been at the forefront of the campaign to simply ignore Hashemi, with frequent hints that they had the votes to guarantee a super-majority, and with Haydar al-Ibadi even trying to overrule the federal supreme court by expressing his personal view that the veto deadline actually expired last night. To some extent they received help from other Shiite Islamists, including Sadrists like Baha al-Aaraji (who yesterday encouraged MPs to stay away from the emergency sessions in parliament), as well as ISCI leaders like Jalal al-Din al-Saghir (who last Friday returned to his usual theme of the importance of “the majority” in Iraq to be united through a pact between Maliki’s State of Law and the Shiite-led National Iraqi Alliance). But it is noteworthy that some ISCI members and Sadrists – specifically Hadi al-Amiri and, according to some sources, Nassar al-Rubaie, did take part in emergency meetings with Sunni and nationalist leaders including Hashemi, Rafi al-Isawi at the house of Ayad Allawi last week, with a follow-up meeting today that involved Amiri plus Khalid al-Atiyya (who is closer to Maliki). Additionally, some of the mid-Euphrates governorates saw their quotas reduced under the second version of the bill, which may have prevented a more clear-cut Kurdish-Shiite alliance.

The unusual constellation involving nationalists and Shiite Islamists, in turn, is of interest in relation to the latest talk in Iraqi politics of the need to have a “caretaker government” in case parliamentary elections are delayed. Such ideas of shaking up the system are popular with everyone who is not close to Maliki – and ISCI seems to be blowing hot and cold in that regard right now – because of accusations that Maliki may try to exploit his powerful position during and after the elections. The remarkable thing, however, is that like so much else in Iraqi politics right now talk of this kind completely ignores the Iraqi constitution. There simply is no “caretaker government” option in the constitution. Unless parliament decides to sack the entire government, which of course it can do if it pleases anytime (but the government would not enjoy any special “caretaker” status), the only emergency scenario in the constitution really is the one-month, renewable declaration of an emergency (requiring a joint initiative by the premier and the presidency council and a two thirds parliamentary majority). Hopefully, though, today’s development will get everyone’s minds focused on the inevitability of early elections, and lead to greater focus on the political issues at stake.

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