The Middle East Channel

Iraq's election law standoff

With Iraqi Prime Minister Nouri al-Maliki now visiting Washington, most of the criticism directed at him has related to the allegation he has "marginalized Sunnis" and created the atmosphere leading to the current increase in sectarian violence. Among those following this line have been a group of U.S. Senators who sent a letter to President Barack Obama preceding Maliki's visit. But they are missing the point. Maliki is actually more inclusive of Sunnis than his Shiite rivals, and only one Sunni minister, former Finance Minister Rafia al-Isawi, has resigned permanently. Sunnis control most of the economic ministries as well as all the provincial governments where they are a majority. The most anti-Maliki provinces, Anbar and Ninawa, have renewed security coordination with Baghdad.

The real problem with the legacy Maliki and his cohorts are creating lies elsewhere, and is symbolized in the current stalemate over a bill for a new election law which is based entirely around strengthening the oligopolistic nature of the current system. The law is necessary for the parliamentary elections due by the end of April 2014, and since the electoral commission says it needs six months to make preparations, parliament is cutting it close. But with the Kurds and the Arab parties deadlocked, and Kurdistan Region President Masoud Barzani threatening to boycott the elections, Speaker Osama al-Nujayfi has repeatedly postponed the vote. 

The core dispute that is holding up the law is between the Kurdistani Alliance and the Arab blocs, with the Kurds wanting a return to electoral systems used in 2005, under which they did better, and the Arabs preferring a modified form of the law used in 2010. But another amendment on which Maliki and his Sunni rivals agree is intended to suppress independent challenges to the major blocs. Maliki, in particular, is keen to avoid a repetition of this year's provincial elections, in which he (only partially with justice) blames losses by his State of Law Coalition to the system used to allocate seats.

The Arab-Kurd dispute, which is at the forefront of the public debate, relates to the choice between a "single district" system and a "multi-district system." The single-district system, used in January 2005, treats the entire country as a district, with seats divided proportionately. Since Kurdish voter participation rates are typically 70 to 75 percent or more, nearly double the Arab participation rate, this increases the numbers of seats elected in Kurdish areas.

Arab politicians usually avoid mentioning this directly, but some acknowledge it is the reason they want the multi-district system. Member of Parliament (MP) Salman al-Jumayli, a leading member of Speaker Nujayfi's Mutahidun bloc, recently argued in a debate on the Sunni Arab-leaning Al-Sharqiya TV that conditions in Arab provinces gave the Kurds an unfair advantage in voter participation. More recently MP Ahmad al-Abassi, of Maliki's bloc, made the same argument, saying no system giving the Kurds more seats was acceptable.

A related issue is that of the so-called "compensatory seats," which are seats awarded to blocs with high vote totals, which party heads can distribute to candidates who did not win enough votes to win a seat directly. The Kurds have proposed dramatically increasing the number of compensatory seats as a compromise. This would make the electoral system similar to how it was in December 2005, and would help the Kurds since their "surplus" votes in the three Kurdish provinces would win more of those seats. And precisely for this reason, the Arabs reject the idea.

Some Kurds also argue that the 2010 system is unfair to them in terms of their seat allocation. Since Iraq has not had a modern census, seats are allocated by province according to the ration card system -- the number in each province poor enough to receive the benefit is a proxy for overall population. Given Kurdistan's relative economic security however, it is possible this undercounts Kurds.

The main knot blocking passage of a new law therefore is not Kurdish votes per se, since the Arabs have a near five-to-one majority, but the political calculus of the speaker. Nujayfi, whose home province of Ninawa in northwestern Iraq is adjacent to the Kurdish region, held to a Sunni Arabist line until 2011, when Turkey, which is his regional patron, changed course and began allying with Barzani. This meant Nujayfi needed to do so, and he began working with the Kurds both in his own province and nationally. Yet their electoral plan is directly adverse to the interests of his base.

To make things more complicated, there is a constitutional technicality that hinders passage of the law by simple majority. It relates to the fact that the bill under consideration is a legislative proposal, not a bill approved by the cabinet. This matters since the Supreme Court has ruled that parliament not only cannot originate legislation not backed by the cabinet, it cannot even make dramatic changes to a bill without executive branch approval. So if this bill passes into law by majority vote, the losing bloc will sue, a point made explicitly by a Kurdish MP during the October 31 session.

As the deadline parliament had set for passing the law by the end of October elapsed, there emerged a possible compromise plan. It involved adopting an alternative but informal population estimate conducted by the Planning Ministry, which would increase the total seats from 325 to 351, with the Kurds getting half of the additional 26. This would give them slightly fewer seats than they obtained in December 2005 (58 out of 275) but well more than in 2010 (57 out of 325). But the deal fell apart during the October 31 session over Shiite opposition, with Nujayfi making it clear he supported the deal.

Perhaps of greater long-term concern, though, are statutory amendments upon which Maliki and Nujayfi are agreed, which would squeeze out candidates with a local power base, and thus strengthen the oligopoly of the major blocs. Both men saw their blocs lose seats to independents in the provinces early this year, and the most commonly mentioned remedy is placing a 150,000 vote minimum for winning seats. Assuming results in Shiite areas are identical to those earlier this year, even a minimum as high as 110,000 would be enough to eliminate every winner outside the established parties. Some independents could overcome the hurdle by creating new cross-province blocs, but the residual impact would still be significant.

This change would be crucial because Iraqi parties do not have open election systems in which grassroots activists can nominate candidates with the party; they are all completely top-down. Maliki and his surrogates have framed the change as necessary to ensure a "strong" government. But what Maliki calls "weak governments" in the provinces are those in which he, Muqtada al-Sadr, and Ammar al-Hakim's Islamic Supreme Council of Iraq don't control everyone.

There is one other provision of note under discussion, which would allow party leaders to replace elected MPs at will. Although the current voting system does not allow Iraqis to nominate candidates, the "open-list" means that they can choose among names selected by parties, allowing MPs to develop some degree of independence. But this proposal, if it passes, will make the "machine" element of Iraqi politics even stronger, solidifying what is already a fairly closed system.

The reason why the law is needed in the first place is a Supreme Court decision striking down the previous law, and there is at least a possibility this could be a problem again. The decision, issued on June 14, 2010, declared the law unconstitutional because of its distribution of "empty seats" -- Article 16 of the 2009 law provided that a bloc's votes divided by the constitutional minimum threshold (the total votes divided by the number of seats allocated to the province) determined how many seats it won. This division naturally left a remainder, and these remainders, according to the law, were to be distributed to the blocs with the most seats.

In Basra, for example, in the March 2010 election there were 814,804 votes, divided by 24 seats, leaving a threshold of 33,950 votes. Maliki's bloc won 431,217 votes, giving them 12.7 seats. But they received 14 after winning an extra seat due to Article 16.

The court's reasoning was a study in vagueness. It cited constitutional provisions providing Iraqi citizens with "the right to vote" and "the right to free expression," and then concluded that the 2009 law deprived those voters who were the remainder of their right to vote, since their votes gave an extra seat or two to blocs for which they had not voted. In principle, the proposed law could also be vulnerable. Following the example above, in March 2010 Maliki's weakest winning candidate won 3,568 votes, and was his 14th seat. But under the contemplated law, the same candidate could still be elected over an independent candidate in Basra with 90,000 votes simply for being part of a large bloc. Given the court's past record of deference to Maliki it seems unlikely it would strike down a law he strongly supports, though since these decisions do not apply retroactively, once the election is over it may not matter.

Kirk H. Sowell is a political risk consultant and the Editor-in-Chief of Inside Iraqi Politics (www.insideiraqipolitics.com). Follow him @uticensisrisk.

SAFIN HAMED/AFP/Getty Images

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