Blog of the International Journal of Constitutional Law

The Iraq Judiary: A Correction and Apology

I feel compelled to update my March 31 post about the Iraq Federal Supreme Court’s recent ruling on the meaning of “largest Council of Representatives bloc” in Article 76 of the Iraq Constitution. I maligned the Court for ruling that the phrase referred to post-election coalitions (multiple party lists that come together to form a government) rather than the party lists considered separately. Considered separately, Allawi’s Iraqqiya list, which won the most parliamentary seats in the March election, would enjoy first crack at forming a government. Under the new ruling Prime Minister Maliki’s State of Law list could join forces with another list (for example the Kurdish Alliance or the predominantly Shia INA), thereby constituting the “largest Council of Representatives bloc” to enjoy this privilege. I posited that the Court had succumbed to political pressure from the Prime Minister.

No doubt the Prime Minister was politically motivated when he took the matter to the Federal Supreme Court. That said, today I had the opportunity to discuss Article 76 with an Iraqi who in 2005 was a prominent member of the committee that drafted the Constitution. This individual is not politically aligned with either Maliki or Allawi, and if he had his way Maliki would not be the next Prime Minister. He contends the Court’s ruling is consistent with the drafters’ original intent. When I pointed out how this reading could be seen as contravening the will of the people he responded that it was so drafted so smaller parties that would likely never win a plurality of seats might still be key players (“king makers”) in the government. I have no reason to doubt his account of the historical record.

I apologize for any mischaracterizations in the March 31 post.


2 responses to “The Iraq Judiary: A Correction and Apology”

  1. Zaid Avatar

    Can i just note that drafters’ intent is not the only measure of how constitutional provisions should be interpreted. That’s particularly true in countries like Iraq, where we had a very disorganised drafting process. The person that you spoke with may very well have intended for things to turn out the way that they are turning out now, but there were so many other people involved (including the unelected and unrepresentative Leadership Council) – who knows what everyone else had in mind. There are so few reliable records available that drafters’ intent is simply not an adequate measure in my view.

    Contrast the FSC’s decision to what is happening in the UK at the moment. Despite the constitutional mechanisms available (according to which the sitting PM has the right to try to set up a coalition government in the event of a hung parliament), and despite the obvious synergies between the Liberal Democrats and the Labour party, Nick Clegg (leader of the Lib Dems) has acknowledged that the Conservatives obtained the highest number of votes and has pledged to try to form a government with them first.

    What matters is an acknowledgment of the will of the people, not what one or even a handful of drafters considered (or think that they may have considered) back in 2005.

  2. Brendan O'Leary Avatar

    Both Jason’s comments, and Zaid’s reply, are saturated with the assumptions of “winner-takes-all” political cultures, which are not majoritarian – though they are misleadingly called that – precisely because the so-called winner may not command a majority. Once one abandons UK or US cultural spectacles matters are easier to understand.

    In proportional democratic systems there is no automatic presumption that the largest party has the first crack at government formation, unless that is stated in the constitutional rules of government formation. Moreover, unless the Constitution specifies pre-electoral outcome single party or list as the basis for first-mover advantage there is no democratic reason why the largest post-election alliance should not have the first-mover advantage, and very many practical reasons for giving it such an advantage. For example, why waste time on letting a party with a quarter of the seats lose an investiture process?

    The “will of the people” is a pre-scientific notion Jason, and usually meaningless unless there is a clearly articulated institutional majority – in seats or votes. In this case there are multiple potential majorities and minorities. Was the will of the people better expressed by those who voted for Iraqiyya or by those who did not (a much larger number of persons and seat-holders)?

    Once one thinks about the issue without the cultural bias of “winner-takes-all” thinking then one can see the salience of a quite different vision of democracy, one which the Kurds for one sought to put into the Constitution of 2005.

    (See also McGarry, John, and Brendan O’Leary. 2007. “Iraq’s Constitution of 2005: Liberal Consociation as Political Prescription.” International Journal of Constitutional Law 5 (4):670-98.)

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