Blog of the International Journal of Constitutional Law

The Election Law Passed But Iraq Still Stands To Miss a Constitutional Dead Line

The impasse over Iraq’s election law has now caused United Nations officials to publicly admit what many have feared for weeks — Iraq is going to miss its constitutionally mandated deadline for parliamentary elections.

Delays this past summer and fall were do to two key disagreements among Iraqi law-makers: (1) whether to have open or closed list voting; and (2) how to deal with Iraq’s disputed territory of Kirkuk. The first issue was soundly resolved when Grand Ayatollah Sistani announced that it would be undemocratic to hold closed list elections (as Iraq did in 2005). Though most lawmakers privately would have prefered a closed list system (which is much easier to guarantee incumbents re-election) few were prepared to be seen going against Sistani (not to mention the general public’s preference for open lists). Kirkuk was much more difficult. Here the main disagreement was whether to go by 2005 or 2009 election registers – the latter being seen by Iraq Arabs as tainted do to the considerable migration of Kurds into Kirkuk, mostly since 2004. The dispute was not only about who should be able to vote, but what precedents would be set about voter eligibility and preferences with the backdrop of a likely future referendum over the final status of the territory itself. In the end a compromise was reached that uses the 2009 voter rolls but questions the validity of those roles and allows for post-election modification of results in the event an investigation proves any impropriety.

With Kirkuk and the open/closed list question resolved the Council of Representatives passed the election law on November 8, 2009 – Iraqis and internationals alike hailed the compromise and vote that ensured national elections before the January 31, 2010 constitutional deadline. The celebration, however, was short-lived. Vice-President Tariq al-Hashimi exercised his constitutional veto on November 18, the last day he could do so. (The Iraq Constitution permits any of the three members of the Presidency Council to veto a law within ten days of its passage.) The justification for his veto was that the law under-represented Iraqis living abroad, of which the vast majority are Sunni refugees living in Syria and Jordan.

On November 23, the Council of Representatives passed an amended law that corrected this under-representation, but made additional changes to the proportional seats for each province – the net effect of which was the possibility (depending on one’s reading of the law) of even fewer “Sunni” seats than under the first version of the law. Vice-President Hashimi promised a second veto if a solution could not be reached that accurately reflected the current proportional populations of each province – hardly an unreasonable position but one that would have meant even greater delay. After tense negotiations (and international pressure) Parliament announced today that it had reached a compromise. The Vice-President withheld his veto. The final legal hurdle to holding elections had been overcome.

Still, the damage from the delays has been done. The Parliament Speaker has said elections cannot take place until February or March 2010. The United Nations and the Iraqi Higher Election Commission agree. This presents one immediate constitutional dilemma and a second potential, and more serious, one.

First, Iraq’s Constitution requires that a new Parliament be elected 45 days before the conclusion of the sitting Parliament’s final term, which for this Parliament is March 15, 2010. By all accounts this deadline will be missed.

Second, and far more concerning, is the prospect elections will not be held before March 15. Such a contingency would portend an expired legislature and illegitimate government, with the only constitutional remedy being a declared state of emergency.

Iraq has weathered missed constitutional deadlines before (as discussed previously on this blog) with little damage to institutions or respect for constitutionalism and the rule of law. Still, one must be concerned that the missed dead lines might make it easier for elections to slip further — especially if it becomes clear that the powers-that-be stand to lose. Also of concern is what precedent an unconstitutional government continuing to exercise authority might set in a country just barely out of decades of authoritarian rule. It will be critical in the coming weeks and months for all of Iraq’s governing institutions – Parliament, the Council of Ministers, courts, and the Iraqi Higher Election Commission – to be seen as supporting and moving towards national elections at the earliest possible opportunity.


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