Blog of the International Journal of Constitutional Law

Government Formation and Iraq’s Constitution

If reports of a breakthrough in formation of a new Iraqi government are to believed (a questionable proposition), it is worth noting two ways Iraq’s Constitution has been implicated in the unmitigated disaster that has been the failure to form a government almost seven months after Iraq’s parliamentary elections.

First, there is the way the Constitution treats government formation itself – (1) it is ambiguous as to which party is entitled first chance to form a government; and (2) provides no penalty (for example, new elections) should the newly elected parliament fail to confirm a government within a specified time. Both of these infirmities have contributed to the on-going impasse.

However, the Constitution has also been criticized for the extreme power that exists with the Prime Minister, with some going so far as to call for an extra-constitutional body – a Political Council for National Security that would be given the power to review security, budget and oil export policy – in order to diffuse power within the executive and make any candidate for prime minister (but particularly current Prime Minister Nouri al-Maliki) more palatable. Vice-President Biden articulated this view in a September 9, 2010 interview with the New York Times:

Q. What about the U.S. proposal that a political council with binding authority could be part of the political formula, and maybe the prime minister would diminish in power with a political council? What is the status of this proposal, and can it break the political deadlock in Iraq?

A. I think two things are going to be necessary …. The answer is that I think they have all concluded it is in their mutual interest for different reasons to, in effect, effectively legislate the powers of the prime minister, devolve some of the powers of the prime minister, of the premiership. I think there is a growing awareness that there is a need for something akin to our National Security Council with, I mean, as an independent unit that serves some of the functions the Council of Ministers served before.

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Whatever the merits of this proposal, it is worth noting that the problem it seeks to remedy is almost certainly not a constitutional one. Consider that under the Iraqi Constitution:

• Declaration of war or a state of emergency must be declared by the Prime Minister and President jointly. Art. 61.9

• The President, and not the Prime Minister, is the guarantor of the Constitution. Art. 67.

• The Prime Minister cannot dismiss a member of the Council of Ministers without the consent of the Council of Representatives. Art. 78

• The President must consent to a request of the Prime Minister to dissolve the Parliament. Art. 64.

• The Prime Minister is the “direct executive authority responsible for the general policy of the State and the commander-in-chief of the armed forces.” Art. 78. But it is the Council of Ministers as a body, and not the Prime Minister alone, that is constitutionally empowered to “plan and execute the general policy and general plans of the State . . . propose bills . . . issue rules, instructions, and decision for the purpose of implementing the law . . . prepare the draft of the general budget, the closing account, and the development plans . . . recommend to the Council of Representatives that it approve the appointment of undersecretaries, ambassadors, state senior officials, the Chief of Staff of the Armed Forces and his deputies, division commanders or higher, the Director of the National Intelligence Service, and heads of the security institutions . . . [and] to negotiate and sign international agreements and treaties.” Art. 80

• The Council of Ministers is empowered to “establish bylaws to organize the work therein.” Art. 85

In this way the Constitution already substantially diffuses power over affairs of the state, foreign policy, and national security. The problem is that many of these recourses have been ignored – for example, the failure of the Council of Ministers to meaningfully empower itself through its bylaws and the failure of the Presidency Council to give meaning to its role as guarantor of the Constitution. At the same time Prime Minister Maliki has used his popularity since 2008 (when he turned the armed forces against the Medhi Army in Basra and Baghdad), the support of the U.S. Government, and, perhaps most of all, the political divisions within Council of Ministers to amass greater and greater authority within his office.

The net result has been a Prime Minister’s office disproportionately empowered compared to what the Constitution envisions and, consequently, calls for extra-constitutional mechanisms to share power within the executive. Internationals and Iraqis alike might look to the Constitution and existing institutions to remedy these imbalances.


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