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Proportional Representation Dispute in Iraq: Parliament Adjourns without Adopting an Election Law for 2010

By Reidar Visser (www.historiae.org)

28 July 2009

Instead of culminating in the grand finale that some had expected after a one-month extension, the first term of the Iraqi parliament in 2009 simply fizzled out. Yesterday, the national assembly adjourned even a couple of days before it was supposed to, and it is now not expected to reconvene until 8 September at the earliest, and possibly not until after Ramadan ends, on 19 September.

The list of unfinished business is as long as ever, but one item has a particular urgency, in theory at least: the adoption of the election system that will govern next year’s parliamentary elections, now scheduled for 16 January 2010. Whereas the previous election law of 2005 may still be used in case everything else should fail, there appears to be a strong desire, at least among the Iraqi public and the opposition parties, to do something about the electoral system in order that the elections results may better reflect public opinion. Many thought the provincial elections law used for the January 2009 elections was a step in the right direction, but the huge proportion of “wasted votes” in those elections (i.e. votes that were cast for candidates that did not obtain representation) means that the issue of system reform has remained on the agenda.

It should be stressed that in terms of achieving better proportionality, there are limits to what a change of the elections framework itself can actually achieve in Iraq. Iraq already has a system from 2005 that in many ways delivers a greater degree of proportionality than other alternative options, and the seat allocation based on “largest remainders” according to the “Hare formula” is considered more neutral than other rules for allocating seats, which may tend to favour bigger parties. True, back in 2005, there was a shift from a countrywide, single constituency in the January elections to governorate-level constituencies in the December elections (the system that is currently in force). This shift in itself reduced proportionality somewhat, but was implemented at a time when it was felt that governorate-level constituencies would enhance voters’ familiarity with the candidates and hence improve accountability. Furthermore, the move was counterbalanced by the creation of “compensatory” seats at the national level, a set-aside block of 45 (out of 275) seats that were initially distributed to parties that failed to achieve seats at the provincial level but did well nationally.

In other words, Iraq already has a highly permissive electoral system that can be best described as “ultra-proportional” in comparative perspective. The high number of “wasted votes” and the fact that most “compensation” seats were given to the bigger parties back in 2005 (after the initial allocation to those parties that reached the threshold for representation at the national but not the provincial level) largely reflect problems in voter behaviour rather than issues for which a fix can be found easily in the toolbox of the political scientist. That is, of course, unless one is prepared to introduce more radical measures, including the possibility of transferring votes, as is done for example in Ireland under the “single transferable vote” system (STV), in which voters rank candidates in order of preference. Admittedly, this system probably works better with smaller constituencies (Baghdad voters might have to rank 50 plus candidates for it to work), but one senses perhaps an element of condescendence in the way the principle was flatly dismissed by UNAMI, the United Nations Assistance Mission in Iraq in a commentary during the 2008 debate on the provincial elections law: “The single transferable vote system should also be ruled out. Requiring voters to number candidates is not appropriate when a significant part of the population is illiterate. Although a ‘party box’ option can be used, the complexity of the system makes it difficult for voters and parties to understand, and this can lead to suspicion directed at those administering the counting process”. Another radical (and very different) alternative would be to “educate” voters the hard way, by creating a formal threshold that would discourage voters from wasting their ballots and force parties to improve their nationwide organisation (Turkey has a 10 per cent barrier, one of the world’s highest). So far, however, it seems unclear whether Iraqi voter behaviour would respond to this kind of radical change. In the 2009 election, for example, it was well known that votes for one-person entities could result in a high level of wasted votes; nonetheless voters in Karbala enthusiastically supported the independent candidate Yusuf al-Hububi whose surplus votes in the end benefitted multi-person lists in ways that were beyond the influence of his own voters.

Against this backdrop, much of the discussion about the elections law in the Iraqi parliament so far has been focused on points of detail. There has been a slight revival of the question of constituency size, with the Kurdish bloc and the Iraqiyya list, the two parties with the clearest “national” profiles (Kurdish and Iraqi respectively) advocating reversion to the single electoral district, hoping thereby to pick up a total of more votes – Iraqiyya across Iraq, and the Kurds possibly taking a clean sweep in Kurdistan for granted and seeking to maximise their chances in areas with Kurdish minorities. There is also a proposal to remove some of the proportional-representation qualities of the “compensation seats” by distributing all of them according to the largest remainders principle, without regard to parties that failed to achieve representation at the provincial level (these would have secured at least one seat each at the national level under the old system if they did well overall). This would in practice translate into a bonus for the biggest parties. Similarly, there is a suggestion to reduce the percentage of compensatory seats at the national level, from around 16% to 10%; the net impact of this is nonetheless hard to predict because most of the compensatory seats in 2005 were in reality awarded to parties that had already won seats at the provincial level. Other disagreements concern rules for candidacy, including candidate age (competing minimums of 20, 25 and 28 years) and educational requirements (secondary schools versus university-level), as well as the usual dispute over micro-minority seats (whether the Baghdad Christians should have one or two seats, and whether the Christians outside Baghdad should be represented in Basra or in Dahuk). So far, the suggestion in the draft law to ban religious symbols including images of the higher clergy for campaigning purposes has not prompted any counter-proposal.

Real and meaningful debate has focused on the question of whether lists should be “open” or “closed”, i.e. should voters have the right to manipulate the ranking of a party’s candidates or not. When open lists were introduced in the 2009 local elections it was seen as a blow to the big parties which wanted to control things centrally. Even if the Iraqi elections commission effectively sabotaged the principle a good deal by relying on master lists of candidates published in the voting centres instead of printing full-name party lists (admittedly a daunting task given the high number of candidates), scattered evidence suggests that Iraqi voters actually made use of this option quite a lot back in January. In Basra, for example, at least 5 candidates on Maliki’s list were promoted to seats in the local assembly as a result of voter intervention, after the party leadership initially had placed them in non-winning positions on the list. A related debate concerns female representation according to quota regulations – heavily promoted by UNAMI and international NGOs, but in practice mostly a tool for the Iraqi political parties to overrule voter preferences, including women voters’ preferences. Examples of women who actually won their seats in the last local elections rather than being promoted to them through quotas are exceptional (one example is Layla Nur in Baghdad for the State of Law list); on this subject the current debate focuses on whether there should be one woman per every three candidates or one woman per every four. None of the parties appears to have touched on the one issue where there is really room for improvements from 2005 in terms of reflecting voter opinion: the distribution mechanism for the 45 or so (depending on any new adjustments) “compensational” or “national” seats that are distributed according to the largest-remainder principle. Back in 2005, these were simply awarded as lump quotas of seats to the party leaders of the relevant parties who could do with them as they saw fit – something which frequently resulted in the promotion of candidates from positions far down on the lists or from provinces where the parties in question had hardly received any votes at all. More could be done here to secure a greater degree of correlation to how the candidates actually scored among the electorate, for example through awarding seats to the top unrewarded vote-getters within the relevant parties.

All in all, the impression is that many of the biggest parties are quite happy with the existing system and are taking their time simply with the aim of arriving at an end result that will be quite similar to the old arrangements from 2005. It has apparently been decided that any modifications to the system must now come in the shape of amendments to the existing law by mid-October. The only real challenge from within the parliament concerns the treatment of Kirkuk, something that echoes the process towards a local elections law last year. Due to concerns about possible manipulation of voter registers by the Kurdish-dominated local authorities, various Iraqi nationalist forces have once more suggested mechanisms for counteracting what they see as inevitable pro-Kurdish bias if normal procedures are adhered to. But whilst their opposition last year came in the shape of a demand for temporary power-sharing agreements and a postponement of the vote to the provincial council in Kirkuk, today these groups focus on a demand for allocated ethnic quotas for Kirkuk (Kurds, Arabs, Turkmens, Christians) in a way that would reinforce ethnic divisions rather than mitigate them. While the demand for special arrangements for Kirkuk seems perfectly understandable, the particular solution proposed by Iraqi nationalists this time seems both out of touch with their own declared nationalist agenda as well as illogical (the Kurds have responded by suggesting a similar approach to Diyala and Nineveh; the federal supreme court has wisely rejected both proposals as unconstitutional).

It is perhaps typical that the deeper issues related to the elections are beyond the purview of the election law itself. One of them concerns the law on the political parties, which has similarly stalled. While it is doubtful that the transparency of the Iraqi economy is such that financial regulations of the parties would have any major impact, the issue of a party law and particular the question of financial support from abroad has been highlighted as an important symbolic issue by Iraqi nationalist parties like Iraqiyya and Hiwar as a possible means of combating “regional” influences (by which term they quite openly refer to Iran). Conversely, while some of the Shiite Islamist parties are equally adamant that there are “regional conspiracies” at work (involving, in their view, chiefly Saudi Arabia and Jordan), they have been less prominent in calling for the law of the political parties to be passed as a matter of priority.

Another key issue was referred to by parliamentary speaker Ayad al-Samarrai on the last day of the legislative term. He promised that at the beginning of the autumn’s session, members of parliament would be presented with a report from the constitutional revision committee, to be adopted by parliament and then presented for a referendum. In fact, the nature of that report and the way it is handled by parliament could be one of the most important determinants of the atmosphere of the next elections. Originally, the requirement for a constitutional revision was introduced just before the October 2005 constitutional referendum to allay the fears of the many Iraqis, both Shiites and Sunnis, who thought the constitution went too far towards the disintegration of the Iraqi state through its decentralising features. A package of moderate reforms was agreed on by the constitutional revision committee in May 2007, but disagreement on key issues like Kirkuk prevented its adoption by the parliament and the Kurdish parties have reportedly since moved away from some of the concessions they had been ready to make initially. It is now being suggested that the report that is on its way to the Iraqi parliament for its autumn session is a further watered-down format – with even less in the way of measures that could strengthen the central government, but possibly with the inclusion of the one feature that probably keeps the Kurds interested in the revision process: the possible extension of the tripartite presidency, which is supposed to terminate at the end of 2009 to give way for a more majoritarian system of government. (The suggestion is that the presidency should be perpetuated until a second chamber of the parliament, which was only rudimentarily referred to in the 2005 constitution, has been established.) If that kind of superficial, incomplete constitutional revision were ever to be passed by the Iraqi parliament, it would be one hundred percent antithetical to the historical background of the revision clause in the Iraqi charter, and it would also mean a huge step back towards the political atmosphere of 2005, with its supermajority requirement and the inevitable accompaniment of supersized governments created on the basis of ethno-sectarian quota formulas.

Ultimately, decisions like these, as well as the process towards new alliances among the Iraqi political parties more generally, might be more decisive in influencing the course of the next parliamentary elections than the current debate about the exact modalities of proportional representation in Iraq.

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