Last week, the Iraqi parliament approved a law that many, including the country’s highest court, say is unconstitutional.
What MPs did was approve amendments to a law regulating how provincial elections are decided. Provincial elections are due to be held in April 2013. They will be governed by the provincial election law 36, passed in 2008 and upon which the 2009 provincial elections were based.
But in 2009 there were conflicts about electoral districts and minority representation and this was what led to calls for a revision of the law. A parliamentary committee was formed to look into the matter.
“The law contains many violations and irregularities,” Ziad al-Thari, a member of the committee tasked with amending the law, says. “These affected the 2009 elections and that’s why we needed to amend this law. However all the efforts made by the regions and provinces committee to introduce major amendments to the law over the last year have failed. And mainly this has been because of the conflicts between the different political blocs.”
As a result, an amended version of the electoral law was only passed into law by the Iraqi parliament on August 2.
And what is causing conflict now is a part of the revised electoral law which says that if some parties don’t get enough votes to make any difference to them, the votes they did get will be given to bigger parties. In 2009 this led to a lack of representation for many smaller Iraqi parties.
“The bigger parties were able to marginalize the smaller parties in the 2009 elections,” former MP, judge and legal expert, Wael Abdul-Latif, told NIQASH. “They were like whales swallowing smaller fish and it is all because of this failed law.”
Based on protests by one smaller party, a case was brought before Iraq’s Federal Supreme Court, the most senior judicial body in the country. In 2010 the court called the planned amendments would be unconstitutional.
“This is so because the revised law reportedly keeps the principle of allotting surplus seats to winning parties only, using the largest remainder principle. In 2010, the supreme court, based on a request from the small communist party, specifically ruled this arrangement “undemocratic” (and therefore unconstitutional), and demanded change to a more proportional allocation formula,” Iraqi analyst Reidar Visser writes on his blog, Gulf Analysis.
In passing the revised law, Iraqi MPs have ignored that supreme court ruling. And this has angered Iraqi MPs from smaller political blocs and parties. It is they who will suffer, they say.
“By ignoring the [supreme] court’s decision, Parliament has violated the Iraqi Constitution because the Constitution says that all the country’s authorities should abide by their decisions,” argues Amar Abdul-Abbas, an MP belonging to the Islamic Virtue Party (Fadhila Party). With only five MPs in the Iraqi Parliament, the Islamic Virtue Party is one of the smaller parties that opposes the electoral law’s revisions.
Article 94 of the Iraqi Constitution says that “decisions of the Federal Supreme Court are final and binding for all authorities”.
Abdul-Abbas said that 50 MPs have now signed an objection to the law which would be submitted to Iraq’s supreme court, in the hopes that the court would then prevent the law from being applied.
The Iraqi Communist Party also called for the launch of popular campaigns against the law before the next round of provincial elections, which had been delayed and were now scheduled for April 2013.
If the law was not revoked, says communist party member and former government minister, Mufid al-Jazairi, “thousands of votes will be lost and simply given to parties and political blocs that voters didn’t actually vote for.”
Even Faraj al-Haydari, head of the Independent High Electoral Commission (or IHEC), the independent body responsible for overseeing elections in Iraq, has admitted the newly revised law has problems.
“This law has been drafted in a way that serves the interests of big political blocs,” al-Haydari told NIQASH.
As for IHEC’s position in this, al-Haydari admitted that they had no right to interfere. “The role of the commission is limited to the preparation of a draft law,” he explains. “We only give advice to the MPs on the best kinds of election laws. In the end, the MPs decide which election laws will rule in Iraq.”
According to local analysts the revised election law was passed despite the deep rifts between the two largest political blocs in Baghdad.
The State of Law bloc, which is led by current Iraqi Prime Minister Nouri al-Maliki, and his major rivals, the Iraqiya bloc “will both benefit from maintaining the current, largest-remainder for winning blocs principle regarding the “surplus” seats,” analyst Visser writes on his blog.
A lot of the time, wrangling between these two major blocs has seen Iraqi legislation and political processes blocked. And, as Visser points out: “this is an ironic reminder, then, about how State of Law and Iraqiya could have got things done in parliament if their leaders could just hate each other a little less. Symptomatically, perhaps, when the two finally did vote together in parliament, it was on an issue that is likely to maximize their own powers in the crudest sense imaginable, at the expense of the smaller forces in Iraqi politics.”
“In its current form, this law will not allow smaller parties a part in the country’s politics,” independent MP, Sabah al-Saadi, also the former head of Iraq’s parliamentary integrity committee, says. “The big, aging parties, which have been ruling the country for years will just continue to monopolize power.”
However, as various members of smaller parties have stated, they will not stop in their efforts to get the electoral law revised or revoked. After all, their existence is at stake, they say.