After months of delay and debate, the Iraqi Parliament finally managed to pass the essential piece of legislation needed in order to hold general elections early next year. But even as MPs were proudly announcing the most likely date for elections – April 30, 2014 – doubts were being cast as to its legality and whether it would hold up in the face of legal protests.
Only a few hours after it was passed, the legislation was already being questioned. Critics included MPs, civil society organisations and experts on election law, all of whom came up with a number of serious legal and constitutional issues that would make it easy to challenge the new legislation in Iraq’s highest court, the Supreme Federal Court.
Which means that the major political blocs, who reached a consensus in passing it, according to the Speaker of the House, MP Osama al-Nujaifi, a senior MP in the Sunni-Muslim-dominated Iraqiya opposition party, will have to stay anxious about their law until the date of the elections.
“Challenging this law will have lots of repercussions for Iraq,” al-Nujaifi warned.
One of the main objections to the new law is that it violates Article 47 of the Iraqi Constitution. This says: “The Council of Representatives shall consist of a number of members, at a ratio of one representative per 100,000 Iraqi persons. … The representation of all components of the people in it shall be upheld”.
According to the latest official data on Iraq’s population, that means there should be 351 MPs. However the new election law specifies only 328 seats – that’s only three more than in the current Parliament. And the seats are supposed to be allocated as follows: 310 seats for all of Iraq’s provinces, then another ten seats for the major lists – three for Iraqi Kurdistan, four for the Shiite Muslim provinces, one for Sunni Muslim provinces and two for mixed Sunni-Shiite Muslim provinces – and then another eight seats as quotas for Iraq’s minorities.
This apparently random distribution has upset a lot of interested parties already, including provincial administrators and minority spokespeople.
“The latest population statistics indicate that we have over 600,000 Yazidis in Iraq,” says Yazidi ethnic MP, Sharif Suleiman. “Which means we should have six seats. But the major political blocs have conveniently ignored this fact.”
“We will not keep silent about this,” Suleiman told NIQASH. “We will go to the courts to stop this violation and we will file a suit with the Supreme Federal Court to challenge this new law. The major political blocs have simply ignored a 2010 ruling that dealt with the percentages allocated to the Yazidis.”
“The major political blocs have refused to give the Turkmen and other oppressed minorities even one seat for various false reasons,” one of the most senior Turkmen MPs, Arshad al-Salihi, complained to NIQASH. “But they managed to give themselves ten seats.”
Al-Salihi says the Turkmen will also consider filing a law suit with the Federal Supreme Court.
“If the bigger political blocs want to build a more stable political system then they have to reassure the smaller, weaker minority groups that this is possible,” says Shabak politician, Hanin al-Qado, who is also an activist on behalf of Iraq\'s minorities. “Those minorities are currently being targeted by extremists and they are being marginalized by politics.”
The distribution of seats is also causing consternation on a provincial level. Ten provinces were allocated more seats but eight were not. The Iraqi Kurdish electoral provinces of Erbil, Sulaymaniyah and Dohuk got a further three seats and Karbala, Basra, Babel and Nasiriya received four more seats each while Anbar, Baghdad and Diyala were allocated one more seat each.
“Why should some provinces get seats and others not?” Salahaddin MP Qutaiba al-Jibouri, told NIQASH; his province missed out. “How did the bigger blocs allow this to happen when they know this is not constitutional? This distribution is going to lead to a lot of lawsuits,” he surmised.
Apart from the distribution of seats in parliament, the other big problem with this new electoral law is the way in which it is formulated. It also relates directly to the ongoing power struggle between the various branches of the Iraqi government – this is the same power struggle that has seen Prime Minister Nouri al-Maliki described as a dictator and accused of power grabbing, to ensure that his decisions override all others.
A few months ago this saw the Federal Supreme Court approve of a measure brought by al-Maliki that basically said that draft laws had to be submitted to Parliament by the executive branch. Parliament could not propose or pass laws all by itself.
However this new election law was discussed only as an “amendment” to the existing electoral law from 2005. An amendment is Parliament’s right and the government is not supposed to intervene. But the MPs also introduced another part of the amendment that actually cancels out the 2005 law. So in effect, this the new amendment becomes the new law. Even though it’s not really a new law.
Election expert and former head of IHEC, Iraq’s Independent High Electoral Commission, tasked with overseeing elections, Adel al-Lami, believes this is a bad mistake. “Parliament has put itself in a critical position,” he says. “It has abolished an old law while bringing in a new law, that is going to be very easy to dispute.”
A third issue is the fact that the new law will use a mathematical formula called the Sainte-Laguë formula to count votes and ascertain representation. The same system was used during the most recent Iraqi provincial elections. The Sainte-Laguë system stops larger parties from gobbling up the votes smaller parties have won, if the smaller parties haven’t won enough votes to pass a certain threshold.
But the modified version of the Sainte-Laguë formula that the new law adheres to means that smaller, secular and liberal parties won’t be able to win any seats, argues Jassim al-Hilfi, a member of the central committee of the Iraqi Communist Party. “The big nationalist and Islamic parties will win all the seats. The big blocs fight with one another on every single issue except one: the marginalization of smaller parties like ours by any means, whether legal or not.”
And, al-Hilfi points out, they actually all agreed not to adopt the Sainte-Laguë system for general elections; it had allowed smaller parties to win more seats and do rather well in the provincial elections just held - to the detriment of parties such as al-Maliki’s. “But in this case, they are adopting a modified version of the system,” al-Hilfi notes.
On his blog on Iraqi politics, political analyst and researcher Reidar Visser, notes that the modified Sainte-Laguë “gives bigger parties more advantages than a pure Sainte-Laguë would give ... Notice, though, that Iraq has created its own version of modified Sainte-Laguë … This all smacks of a bazaar logic, and one cannot help wondering whether some of it represents a concession to al-Maliki, who was deeply unhappy with Sainte-Laguë in the local elections law”.
So what has brought this state of affairs about? Why would Iraq’ biggest political parties and blocs make so many mistakes in the passing of an electoral law, which is far from water tight and which could be challenged at any time? Should any of the challengers get their way, this would most likely mean that the general elections are delayed.
“The politicians were under a lot of pressure to pass this law,” says veteran, independent Kurdish MP, Mahmoud Othman. The general elections that will be held in 2014 will be the first held in Iraq without the major presence of US troops on Iraqi soil, he adds. “And the MPs had a very tight schedule and there were many fears about what would happen if elections had to be postponed,” Othman continues. “So the law was passed. But it’s actually not a very fair law for some of Iraq’s provinces and for some of Iraq’s minorities.”
What next? The deadline for registering candidates to participate in next year’s elections is nigh. But most likely the various challenges and appeals to this new electoral law will also be held soon. Should any of them be successful, it would mean that Iraq’s general elections might be delayed for as much as a year. Because, as is typical for the Iraqi Parliament, any other new electoral law is bound to require another debilitating round of debate, bargaining and discussion.