Iraq's federal court kills off majority government project

08-02-2022

The Federal Supreme Court of Iraq dealt a heavy blow to the idea of majority government formation when it provided an interpretation of Article 70 of the Iraqi constitution on Thursday, stating that "the quorum [to elect the president] is achieved in the presence of two-thirds of the total number of members of the total parliament."

As a result, parliament failed to hold a session to elect the president within 30 days of its election of the speaker, as stipulated by the constitution. The majority of the political blocs boycotted the session on Monday due to an injunction issued by the federal court the day before, which suspended the candidacy of the Kurdistan Democratic Party (KDP) candidate Hoshyar Zebari.

Presidential election session

The attendance of no fewer than 220 deputies out of the parliament’s 329 members in the session to elect the president is now obligatory, and achieving it is going to be immensely difficult if the Coordination Framework and the Patriotic Union of Kurdistan (PUK) continue to boycott the sessions.

It is customary that some 15-20 members miss parliamentary sessions due to illness, travel, or preoccupation with other tasks; few do not turn up to any session. In addition, the Coordination Framework has approximately 85-88 members, according to its sources, and the PUK has 19 members. Some 8-10 Sunni members outside the Sovereignty Alliance - the alliance between Khamis al-Khanjar and al-Halbousi - might join the boycotters. A total of the 127 members are ready to be absent in the session, 17 extra than the 110 needed to deem the session for electing the head of state void.

Forming a majority government without making concessions and showing flexibility to the opponents of the Sadrist movement and its allies from the Kurdistan Democratic Party (KDP) and the Sovereignty Alliance will be difficult to achieve.

Scenarios for the coming days

The federal court’s decision is making the political parties spin out of control. On Tuesday, parliament issued a decree opening the door for a new candidacy of the president, in a blatant and clear violation of the Law 8 of 2012.

Meanwhile, some leaders are playing a game to oust the current president out of office under a ludicrous interpretation of Article 75 of the constitution, which forced the President’s Office to send a letter to the federal court to provide yet another interpretation of Article 72, and to ask if the president is allowed to stay in office after the failure of parliament to elect a new president.

It is clear that the political parties must get together to work on reaching an agreement, and there are only so many scenarios that might apply. Here are some of them:

1). Partial consensus and proceeding with the formation of the government

The first round of talks in Najaf by the Kurdistan Region President and leader of the Sadrist Movement Muqtada al-Sadr resulted in a compromise proposal sent to Fatih Alliance leader Hadi al-Amiri. A Sadrist delegation arrived in Baghdad carrying a nine-point proposal which included the participation of the Coordination Framework with 50 members, taking five ministries, and having a say on the selection of the prime minister. Amiri rejected the proposal on the spot; he didn't approve the exclusion of the remaining Coordination Framework members.

The Coordination Framework's refusal returned the ball to the court of the Tripartite Alliance; it is up to them to accept the Coordination Framework without going into details that would lead to the failure of the agreement. Therefore, the Tripartite Alliance should show greater flexibility about the number of ministries and the participation of personalities that the Coordination Framework deems appropriate in the next government.

It is worth mentioning that any consensus needs to include the PUK and the position of the President of the Republic, as it is difficult to proceed with the initiative without paying attention to the demands of the PUK.

The Coordination Framework is expected to adhere to the PUK and adopt its demand; it is in their interest to have the PUK on their side when agreeing with the Tripartite Alliance. In addition, the Coordination Framework owes the PUK for standing with them during the session of the Speaker of Parliament's election.

2). Absence of consensus and entering into a constitutional vacuum

The passing of the February 7 deadline to elect the president, as negotiations between the Coordination Framework and the Tripartite Alliance stall, means entering a constitutional vacuum without any clear solution. Article 72 of the constitution clearly states that the president must be elected within thirty days of the election of the speaker. Failure to elect the president will mean failing to nominate a prime minister and subsequently failing to elect a new government.

The paradox here is that the constitution did not address such a defect. Therefore, the vacuum will remain indefinitely, until the political blocs agree to hold a session with a full quorum.

The constitutional vacuum may last for several months, as happened in Lebanon. The election winners will be looking at two tough choices, either to give up some of their electoral entitlements and reach a concession with the losing parties, or to call for an early election.
Some observers make the claim that the federal court’s injunction to suspend the candidacy of the KDP’s Zebari also suspends the presidential election and therefore the process is frozen on the 28th day and there are two more days left. Therefore, they say, the clock will start to tick once the injunction is cancelled.

3). The success of forming a majority government

The Tripartite Alliance could have made an immense effort to reach an agreement with the small and medium blocs by providing enough assurances and concessions to persuade them to attend the presidential election session on February 7, and then move forward to form the national majority government. However, this did not occur. Observers believe that such a government may have been - or may well be - subject to bargaining and countless problems, and will not provide services nor carry out reforms amid a solid opposition of 140-150 members who can deploy delaying and obstructive tools; an army of bloggers, writers, observers, and media professionals, for example, who will monitor every movement and decision.

This scenario is closer to theory than reality. If it does happen, and perhaps even in the next few days, the government that emerges from it will not succeed, especially if a fundamental disagreement occurs between the components of the Tripartite Alliance. Therefore everyone will likely go to early elections.

4). Second snap elections

The continuation of deadlock between the conflicting forces, the disruption of the election of the president, and the inability to form a government for a period that may take 5-6 months, will present tough choices to all, including going for early elections again. There might exist the possibility of amending the electoral law to fill the current gaps in the electoral system, including replacing the High Electoral Commission.

It will not be easy for the winning political forces, especially the Tripartite Alliance, to accept early elections unless things look as if they are heading towards inevitable collapse.

5). Collapse of the political system - and potential chaos

The impossibility of reaching an understanding between the ruling powers may complicate the political and societal scene amid the continuation of internal and external pressures. The Iraqi people can no longer wait for political forces to continue their dispute over their share of spoils, plundering the state's wealth for their benefit. At the same time, broad segments and classes live in the most severe cases of misery, poverty, unemployment, lack of services, and absence of security.

All this portends the return of a wave of popular protests, and a real clash between those on the street and the ruling political class. The people have exhausted their peaceful options to demand the most basic rights over the state, which may lead to the collapse of the entire political process, especially if chaos prevails and cities begin to fall. The political class is failing to understand the suffering of the poor, the armies of the unemployed in search of job opportunities, and the continued deterioration of the level of essential services, infrastructure, and the collapse of important sectors, including industry, health, and education.

The reactions of rising street protests may lead to early elections to remedy the expected collapse, as occurred in 2019 when the government of Adil Abdul-Mahdi resigned, and early elections were announced; the results of which we are dealing with today.

The way to a solution

Political parties must rectify the seriousness of the current situation, which is going from bad to worse. With time running out, the federal court’s recent interpretation of Article 70 of the constitution has made it impossible to proceed with a government of national majority without agreeing with opposition blocs, especially the Coordination Framework and the PUK.

It has become more appropriate, therefore, for all to reach partial consensus, as there are blocs that want to go into opposition, and large blocs wishing to participate in government. The major political parties could form a five-party agreement (the Sadrist Movement and the Coordination Framework, Azm and Taqadum’s Alliance of Sovereignty, the KDP and PUK). Adopting a unified and clearly defined programme would mean that they bear electoral responsibility before the Iraqi voter, and that all are responsible for future failure or success.

Perhaps there is a strong need for the Kurdistan Region President Nechirvan Barzani to go back to Baghdad for a second round of talks. This could be a good chance to prevent political deadlock. The collapse of the political system would turn winners into losers - and losers into even worse losers.

Farhad Alaaldin is the chairman of the Iraqi Advisory Council. He was the political adviser to former Iraqi President Fuad Masum, the former chief of staff to the KRG prime minister from 2009 to 2011, and the former senior adviser to the KRG prime minister from 2011 to 2012.