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iraqi constitution says iraqi govt is now illegal – but does anybody care?

Mustafa Habib
After last week’s abject failure by the new Iraqi Parliament to achieve anything, the country is now being run by an illegal government operating in a power vacuum. Meanwhile Parliament cannot manage any…
10.07.2014  |  Baghdad
Iraq's Parliament in Baghdad, scene of multiple violations of the Iraqi Constitution recently.
Iraq's Parliament in Baghdad, scene of multiple violations of the Iraqi Constitution recently.

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The Iraqi Parliament held its first session after the country’s recent general elections on July 1. The different groups inside Parliament – Iraq’s Sunni and Shiite Muslims, the Iraqi Kurdish and the various smaller ethnic groups – were supposed to agree which politicians would hold the country’s most senior positions. This included the Speaker of Parliament as well as a new President and Prime Minister. But they did not.

Instead there was fighting about budgets and positions and after a recess, many MPs stayed away from the final part of the session. All of this is happening because Iraq’s politicians have grown used to violating their own national Constitution, a Constitution the Parliament itself ratified.

Several articles of the Iraqi Constitution were violated at that July 1 meeting. The first was the failure of MPs to choose a permanent Speaker of the House.

Article 55 of the Constitution says: “The Council of Representatives shall elect in its first session its speaker, then his first deputy and second deputy, by an absolute majority of the total number of the Council members by direct secret ballot”.

This didn’t happen because as Iraqi political expert Reidar Visser wrote on his website: “When the session resumed, many of the 255 deputies that hadbeen present at the outset failed to show up. What apparently had happened was that Kurds and Sunni Arabs deliberately boycotted … with suggestions that both protested what they saw as a failure by the Shiite alliance to come up with a replacement candidate for Nouri al-Maliki as premier. What was clear, at any rate, was that there was no speaker candidate.”

The session ended after the temporary Speaker of the House agreed with the Shiite Muslim politicians still present at the end as to when the next session of Parliament might be. Concluding the session without a new Speaker was a constitutional violation – it should have gone on until one was chosen.

“It would now be easy to challenge the constitutionality of that first session of Parliament,” says Nasser Jamil, a local legal expert. “It could be considered void,” he told NIQASH. “Although I am sure the politicians won’t contest the session because they themselves approved of the violations and asked the temporary Speaker to conclude the session.”

And there were further violations. The first session of Parliament was attended by 255 MPs out of a total of 328 which means that 73 of them didn’t take an oath of office as is stipulated by Article 50 of the Iraqi Constitution.

Additionally some of the politicians who did take the oath of office are actually still in office. This is a further violation of Article 49 of the Constitution which says that, “it is not permissible to combine membership in [Parliament] with any work or other official position”. Some of the politicians present on July 1 have yet to resign and are still holding their government jobs – this includes Iraq’s Prime Minister, along with several other senior ministers.

And now that Parliament has failed to elect a new Speaker of the House, the Constitution itself is a problem once again. Local legal experts say that its wording is too general and it doesn’t provide any clarification as to what should happen if it is violated – as it was on July 1. Nor does it stipulate what sorts of penalties there might be for violations.

There is a generally acknowledged need for constitutional ambiguities to be amended or to be clarified by new laws – however Iraqi politicians have failed to pass the needed laws or amendments.

On the other hand, political experience in Iraq after 2003 has shown that it is almost impossible to stay true to the time frames that the Constitution demands. Nothing gets done quickly because everything requires lengthy discussions and negotiations between those three biggest components in the Iraqi Parliament – the Shiite and Sunni Muslims and the Iraqi Kurdish – before anything gets done. It is already clear that it is going to take weeks, if not months, to choose the most senior members of the Iraqi Parliament. After elections in 2010, it took seven months before the new government was formed.

Nor does the Iraqi Constitution give politicians any idea how to proceed when the country is in a state of crisis, as it currently is.

Which brings up yet another cause for constitutional concern: The current Iraqi government should have suspended its work while the new government was being formed. And because Parliament has not managed to convene, the current government is actually continuing its work without any constitutional basis. Since March 25, 2014, al-Maliki’s government has been operating without any supervision from the country’s elected representatives. That was the date of the last Parliamentary session before general elections. Basically al-Maliki’s government is operating in a power vacuum, with no checks and balances.

It is true that Iraq’s politicians have never been too careful about doing as the Iraqi Constitution says.

There are several high profile examples of this, including violations of Article 140 which deals with the disputed territories – that is, territory that both Iraq’s Arabs and Iraq’s Kurdish want to claim as their own. The Constitution says this issue should have been dealt with by the end of 2007. Seven years later, nothing has really changed – even though the Iraqi Kurds have now taken control of some of the disputed territory they have always wanted, thanks to the Sunni Muslim extremists.

In other democracies, constitutional violations such as those practised by Iraq’s politicians would have been punished, early elections would have been called, legal authorities would have stepped in or leaders would have been impeached. But not in Iraq.

And it seems as though now, there are more violations of the Iraqi Constitution than ever. Yet because everyone - from journalists to politicians to voters – is so used to the flouting of laws like this, such violations are simply accepted while politicians only care about who gets the best jobs and most power.

The next session of Parliament is to be held next week – on July 13 – but nobody seems confident about its abilities to find a new Speaker of the House and two deputies.

All of this – combined with the political power vacuum and an illegal government – is not helping to confront the threat posed to the whole country by Sunni Muslim extremist groups. Which may well make them the biggest winners right now. It is fairly obvious that the Iraqi people are not.