When Iraqis voted for a new constitution following the US-led invasion of their country in 2003, US president George W Bush, who ordered the conquest, hailed the referendum as “a momentous time in the history of the Middle East.”
Bush described the successful passing of the document, written by an Iraqi panel chosen by an assembly elected in 2005 under pressure of anti-occupation resistance, as a “landmark day in the history of liberty.”
In its preamble, the drafters of the new constitution pledged to build “a nation of law” and to ensure the document would “preserve for Iraq its free union of people, of land, and of sovereignty.”
Nevertheless, this constitution, which promised enormous opportunities for a peaceful, free, and democratic Iraq following the collapse of the regime of former dictator Saddam Hussein, has topped the list of problems in restoring stability to the beleaguered country.
For more than 15 years, the abysmal record of malpractice and non-compliance with the norms of democratic governance as they are stated in this document has been the main reason behind the state’s failures and lingering conflicts in Iraq.
Iraq’s current government crisis is a vivid example of the deep-rooted and still-unresolved constitutional weaknesses of the post-Saddam political order.
More than four months after Iraq held national elections last October, the country’s political groups have not been able to agree on a new president, a necessary step under the constitution before the appointment of a prime minister and the formation of a new government.
The poll had been due later this year, but it was brought forward in response to mass protests over corruption, unemployment, and poor public services that erupted in 2019.
The vote was also marred by one of the lowest turnouts in the country’s history, reflecting widespread apathy and disillusionment over government dysfunction and a lack of accountability.
It was also mired by protests over the outcome of the elections and disagreements about which parliamentary bloc had the right to form a government and who should be the next prime minister that led to the four-month political gridlock.
The controversy has sent tensions high between differing parties, especially among Shia groups that contested the election outcome and the two main Kurdish parties that are fighting for the post of president.
In the southern province of Masyan, gunmen believed to belong to Iraqi Shia cleric and politician Muqtada Al-Sadr’s Saraya Al-Salam militia and the rival Asaib Ahl Al-Haq have reportedly been involved in tit-for-tat assassinations, triggering unbridled tribal violence.
The disputes went to the High Federal Court (HFC), effectively the country’s constitutional tribunal, where the plaintiffs sought rulings on many constitutional questions raised by these ugly episodes in Iraq’s politics even though they themselves had been pioneers in misusing the country’s constitution.
The trouble began with a lawsuit filed by a group of Shia parties that had disputed the election results, asking the court to annul the election of the speaker of the parliament on the grounds of irregularities during its first session.
The HFC turned down the case and ruled that the parliamentary session during which Sunni speaker Mohamed Al-Halbousi had been elected was in line with the constitution.
Many experts, however, said the court may have stretched its interpretation of the constitution, which is vague on the role of the speaker of the assembly.
Then there was the controversial case of registering the largest bloc in the 329-member parliament that is constitutionally mandated to nominate Iraq’s next prime minister.
While the constitution states that the president should ask the “largest parliamentary bloc” to nominate the next head of the government, it does not say how this bloc should be formed, making it a constant battle in post-election periods.
After a simmering dispute in 2010, Iraq’s highest court identified the largest bloc as being “any single political party or coalition of parties that has the largest number of seats formed at the first session of the parliament.”
Since the US-led invasion that toppled Saddam’s minority Sunni regime, Iraqi governments have been dominated by parties from the country’s Shia majority in coalitions that have also included Kurdish parties and Sunni representatives.
A new elections law following demonstrations calling for fundamental political change was based on dividing Iraq into smaller electoral districts instead of the old one which designated each of Iraq’s 18 governorates as a single district.
It also banned newly elected MPs from moving from their registered lists to others, a practice used by the political blocs to increase their members in lieu of other kinds of incentives. This move has made identifying the largest bloc in parliament more of an issue
Al-Sadr, whose Sa’roon list won 73 seats in parliament, was the first to announce that he had the largest parliamentary bloc to emerge from the voting and was therefore entitled to nominate the next prime minister.
But the Coordination Framework (CF) Shia Alliance, which disputed the poll results, said it had handed over a list with the names of 88 MPs, thereby jostling for primacy in determining which group should be recognised as the largest.
The HFC became involved in the dispute when it decided that the largest bloc could be formed any time after the first session of the parliament, clearing the way for Al-Sadr to form the new government based on his alliance with the Sunnis and Kurds and eliminating his Shia rivals in the CF.
More constitutional confusion was created when the court decided on Sunday to bar Kurdish politician Hoshyar Zebari from running for Iraq’s presidency against the incumbent Barham Saleh, citing a lawsuit filed against him on charges of corruption.
As a result, Iraq’s parliament has indefinitely postponed a scheduled vote for the republic’s president and reopened nominations for the post, throwing the process into further disarray.
The move, aimed at giving a chance for a replacement for Zebari, clearly violates an article in the constitution that stipulates that the president should be chosen by the parliament within 30 days of its first session.
Supreme courts around the world have unique authority in democratic nations, and their jurisprudence is valued for seasoned and non-political constitutional interpretation.
Iraq’s constitution should have established a democratic parliamentary system in which the executive branch of the government is accountable to the legislature.
In principle, a government in a parliamentary system should be formed by a party or a coalition of parties having the greatest representation in the parliament with its leader becoming prime minister.
Iraq’s governance system was also meant to be based on a political consensus that would bring all Iraq’s communities into a national project to rebuild the country on the basis of compromise and mutual benefit.
In practice, however, constitutional flaws and the misuse of the consensus system coupled with mismanagement and corruption have pitted the system into perpetual dysfunction and triggered an endless spiral of conflicts.
Iraq’s political system in the post-Saddam era, which was orchestrated by the US Occupying Authority after 2003 in collaboration with the Iraqi cronies it had brought to power, has never been parliamentary or even democratic.
In the four elections that have taken place since 2006, all Iraq’s parliaments have just been rubber stamps with no real or very little authority while power has remained vested in the hands of the ruling oligarchs.
The last two prime ministers were not even elected members of parliament and neither were most of the cabinet ministers. Almost all senior government and security forces officials who are required by law to be named by parliament have not been sanctioned.
No one in the small political circle that is currently involved in deal-making about Iraq’s next government has been elected, even though these are the ones who are selecting the government leaders and setting the rules of engagement for the next four years.
There are huge political and partisan interests in Iraq’s highest court itself, whose judges were named by the ruling oligarchs and endorsed by the previous parliament according to the same power-sharing system that is in place elsewhere.
Some 19 years after the ouster of Saddam, the interpretation and application of Iraq’s constitution remain entirely dependent on the whims and dictates of its ruling elites who continue to undermine the country’s long-term democratic future.