The Electoral Law, the High Commission and the Federal Court: A Trilateral Threat to the Next Iraqi Elections

EPC | 01 Jul 2020

Immediately after the government of Prime Minister Mustafa al-Kadhimi won the confidence of the Iraqi Council of Representatives (CoP) on 7 May 2020, the political blocs initiated consultations to amend the law of general elections approved in late 2019 amidst broad opposition by Kurdish and Sunni blocs. At the same time, some political powers opposed the method used by the Independent High Electoral Commission to form its offices, demanding that the Commission change that method and that the Commission Board be re-structured. This also coincided with the emergence of a crisis between the Supreme Judicial Council and the Federal Supreme Court.

This paper discusses the differences regarding the amendment of the electoral law and the composition of the High Commission in addition to the crisis of the Federal Supreme Court and the impact of all this on the next parliamentary elections.

Re-opening of the election law file

Under pressure from protesters and the Shiite Authority, the Shiite parliamentary blocs adopted the amendment of the election law on 24 December 2019 amidst great satisfaction by the activists and protesters and discontent by the Kurdish blocs and some Sunni powers that saw the new law as an attempt to change the political scene and deprive them of the votes of their supporters in mixed cities.

The most important changes in the amended law are the shift from the proportional representation method, whereby each governorate would be considered an electoral constituency and candidacy would be through electoral lists, to individual candidacy in isolation from lists and parties, in small electoral constituencies or districts (the country’s second largest administrative unit after the governorate) instead of the governorate that has been adopted as the electoral constituency since 2006. This amounts to an increase in regional representation and doubling the chances of the independent and small blocs. Another change in the amended law is the determination of the winner based merely on who obtains the highest number of votes without resorting to the Saint Laguë method[1] of distributing votes that has raised a lot of criticisms because it allowed unacceptable and unpopular figures to access Parliament although they did not get sufficient votes to enter Parliament.[2]

The Kurdish bloc believes that the amended election law will deprive it of the votes of Kurds in mixed districts where they constitute a minority. On the other hand, the Sunni powers rejected the adoption of electronic counting and sorting that raise fears of rigging and result manipulation. Besides, the law does not exclude bi-nationals from running for election in line with the demands of the popular protests since their outbreak on 1 October 2019.

Interestingly, the Office of the Parliament Speaker did not send the amended electoral law to the Office of the President for ratification on the pretext that the determination of the constituencies and their names has not yet been finalized, which is a clear violation of the Constitution which stipulates that immediately after its adoption, legislation should be sent to the President of the Republic who would ratify it or return it to Parliament within 15 days. If the current situation persists without change, the parliamentary elections will be held under the previous effective law, despite the adoption by Parliament of the amended law that would still need to be ratified by the President and published in the Official Gazette to be final.

On 7 June 2020, Representative Sherwan al-Dubardany, a member of Parliament’s Regions and Governorates Affairs Committee, revealed the existence of an agreement in principle among parliamentary blocs to amend the electoral law. He said that “the political blocs are almost agreed that the adoption of the law pf parliamentary elections was rushed because of the pressure by protesters”. He added that “the new amendments would aim to review and amend some technical mistakes that hinder the holding of early parliamentary elections under this law”.[3] The controversial articles are as follows:

1- The existence of 41 unregistered districts at the Ministry of Planning. These cannot be considered constituencies without being certain about their population. According to article 15 of the amended law, every district will have one or more representatives on the basis of one representative per 100 thousand citizens. If the district’s population is less than this number, it would be integrated into the closest large district.

2- The lack of a population census and reliance on the data of the Ministry of Trade (ration card), which could affect the participation percentages in some constituencies. That is, a voter could, according to Ministry of Trade statistics, be registered in one district but actually living in another.

3- The women quota referred to in the Constitution whereby women should be represented in Parliament at 25 percent, a proportion which can be guaranteed through election by lists. However, in individual direct election, as envisaged in the relevant law, the quota is difficult to determine and requires a particular formula, such as transforming the country into a single constituency for women.

4- Recognition of the Preparatory Certificate for candidates instead of the Bachelor of Arts (BA) degree as required by the articles of the old law, in addition to the age limit whereby the candidate’s age was set as 25 instead of 30 years. While this was supported by the Kurdish blocs, Shiite blocs, such as the State of Law, advocate that the candidate should exceed 30 years of age.

5- Adoption of the electronic counting and sorting method in the amended version, which is feared by blocs that had won less votes than they expected in the previous elections of May 2018, in which the electronic method had also been adopted, with the accompanying violations, complaints, challenges, and manual re-counting and sorting in many constituencies.

6- Dual citizenship. The law ignored this issue that was mentioned in article 18/Fourth of the 2005 Constitution of the Republic of Iraq. The article stipulates that “An Iraqi may have multiple citizenships. Everyone who assumes a senior, security or sovereign position must abandon any other acquired citizenship. This shall be regulated by law”. Pursuant to the demands of protesters, this article should include Members of Parliament (MPs) as well. However, failure to enact a law with respect to this article has allowed many politicians with multiple citizenships to assume important and sensitive posts in the state, including the posts of Prime minister and President.

Positions of political powers on the elections and electoral law

Many of the political blocs and parties have changed their positions on early elections after Mustafa al-Kadhimi assumed the post of Prime Minister early May 2020. Blocs opposed to early elections, such as Asaib Ahl al-Haq (League of the Righteous) led by Qais al-Khazali, now demand the dissolution of Parliament and the organization of those elections because they believe that Kadhimi’s continuation for a longer period as Prime Minister could deprive the militias of many of the benefits they receive from the state, and vice versa: supporters of the new government ‒ such as the Victory Alliance led by former Prime Minister Haider al-Abadi, and al-Hikma (Wisdom) led by Ammar al-Hakim ‒ indirectly demand that Kadhimi be retained till the constitutional election date in 2022 by underlining the need to satisfy all the necessary conditions for the elections in terms of security aspects and security and logistical preparations.

This shift in positions on early elections was accompanied by a change in position vis-à-vis the electoral law. The powers opposed to Kadhimi may offer some concessions to the Kurdish side in particular in order to finalize the law and send it to the President to ratify it, and the opposite is true for the blocs supportive of the Prime Minister that will seek to retain the controversial paragraphs for as long as possible.

Below are the leading positions on the amendment of the electoral law:

1- On 5 June 2020, the Sairoun (Alliance Towards Reforms) bloc, led by Muqtada al-Sadr, which is supportive of Kadhimi, proposed the division of Iraq into 240 constituencies. The Sairoun MP Burhan al-Maamouri said that “among the advantages of the multiple constituencies within the same governorate are the adoption of the principle of justice and transparency in participation in the elections and the abandonment of the geographical criterion that could lead to some areas being in a disadvantageous position compared to others”. This would lead to a greater rejection by the Kurdish and other blocs of the law in its current version.

2- On 6 June 2020, Muthanna Amin, member of the Patriotic Union of Kurdistan (PUK), said that his party believes that the “electoral law in its current form is a law that is keenly and carefully designed to rob the people of their will and has to be returned to the Council of Representatives before being finally approved to be re-amended in line with the reforms of the Iraqi street and in such a way as to protect Iraq from the danger of collapse and internal conflicts”.

3- On 7 June 2020, the Badr parliamentary bloc, led by Hadi al-Ameri, put forward a new proposal with regard to the constituency distribution system in the law of general elections, explaining that “the new proposal, which was received by the Legal Affairs Committee with the approval of the Office of the Parliament Speaker, includes the calculation of one constituency per 400 thousand people”.

4- On 3 June 2020, the MP for the Fatah Alliance Walid al-Sahlani demanded the adoption of a new electoral law and the division of each governorate into three constituencies, indicating that the upcoming meetings would be decisive in approving the law’s controversial items. He said that “the political blocs continue to negotiate the constituencies and their division”. On the other hand, the MP for the same Alliance Amer al-Fayez said on 9 June 2020 that “no political power has the right to renounce the agreements reached among them prior to the choice of Mustafa al-Kadhimi as Prime Minister because early elections are a political demand by some blocs. Besides, it is something demanded by the protesters. It has also received the approval of the Authority (Ali al-Sistani) which said that they should be held”.

Interestingly, the Sunni blocs did not seem to care these days about the constituency issue as much as they did about providing the suitable environment to hold the elections. The Head of the Salvation and Development Front Osama al-Nujaifi said that “early elections would be meaningless in light of the spread of corruption and militia weapons”. He added: “we call on Kadhimi to develop an urgent strategy to combat corruption and militias in preparation for free and uncontested elections”.

The Electoral Commission crisis

Since the adoption of the Law of the Independent High Electoral Commission on 15 December 2019, the debate on the re-formation of its offices and the manner it is run has not stopped, particularly after Parliament has, through the new law, approved the formation of the Board of Commissioners from among independent judges. That is why, the political powers have focused on controlling the Commission’s offices in the governorates where they can control the process of monitoring and moving the ballot boxes and impose result rigging, particularly in case of the adoption of the manual counting and sorting methods.

The new law specified that the Board of Commissioners would be composed of nine members, five of whom would be nominated by the Supreme Judicial Council by ballot, taking the appellate districts into consideration. On the other hand, two members would be nominated by the Judicial Council in the Kurdistan Region, taking into account their distribution in the Region’s appellate districts, while the other two members would be nominated by the Council of State, also to be elected by the Judicial Council.

The Board of Commissioners would carry out the formation of the Commission Boards in the Governorates and all constituencies after all former Commission staff have been dismissed. However, some political powers believe that staff continue to be members of influential parties. Below are the main positions on the Electoral Commission:[4]

1- On 27 May 2020, Ayad Allawi, leader of the National Coalition, tweeted that “the appointments based on quotas in lower positions in the Electoral Commission, failure to determine the date of early elections, and failure to proceed with amending the electoral law and Electoral Commission are a serious indication of the interim government’s intention to stay. We cannot possibly allow this, considering the demands of the sons of the Iraqi people. Besides, this would be an introduction to chaos”.

2- The Iraqi Forces Alliance, led by Parliament Speaker Mohammed al-Halbousi, made accusations against the Commission. It said: “While we responded to the popular demands to reform the structure of the Independent High Electoral Commission, we have noticed, after closely monitoring its performance, a serious deviation in the process of the configuration of its structure and the politicized choices of its medium-level and technical staff”. The Alliance considered that this warns against the continued “deviation of the path and the loss of justice in the representation of some components of the Iraqi people in the mixed-fabric governorates (Kirkuk, Diyala, Baghdad, Babil and Basra) in the structure of the new Commission”.

3- The Deputy President of the Iraqi Turkmen Front Hasan Turan indicated that “in Kirkuk, people who had taken part in rigging the last elections in 2018 were brought over to the presidency of the Commission”. He added: “it is clear that the goal of this is to repeat the rigging in the upcoming elections as well”.

4- However, the MP for the Sairoun bloc Ghayib al-Omiri rejected those accusations which he thought were intended for “defamation and abortion”. He laid the condition of presenting evidence for the questioning of the selection mechanism of Commission directors, “especially that independent and professional figures have been chosen”. He indicated that “any quarters can challenge the mechanism, and an investigation would be carried out in case of the presentation of evidence rather than reliance on mere accusations”.[5]

On its part, the Independent High Electoral Commission has issued a new clarification with regard to the administrative posts. In its statement, the Commission said that “the Independent High Electoral Commission and its Board underline that the selection of officials to assume the vacant posts has been done pursuant to the new Law of the Independent High Electoral Commission No. 31 (2019), and that the Board has, in line with the applicable mechanisms, selected from among the officials who ran for office based on the job description of every post regardless of political quotas in accordance with an objective mechanism that is based on transparent functional and legal criteria. Furthermore, there are well-considered plans to test the efficiency, integrity and political independence of those officials over three months from the date of issuance of the administrative orders”.

The re-formulation of the offices of the Electoral Commission amount to hindering the Commission’s preparations for the elections or to proceeding with the existing offices, and would lead to questioning the ratification of the elections even before they are held. The ball is now in Parliament’ court since it has the power to hold to account the Commission Board with regard to the appointments. In other words, the matter will again be subject to negotiations and bargaining among the political blocs.

The Federal Court crisis

The Federal Supreme Court in Iraq is an integral part of the trilateral electoral process ‒ Law, Commission, Judiciary ‒ to ratify the results before they are announced. Political and popular circles fear that the current disagreement between the Supreme Judicial Council and the Federal Court could lead to the disruption of the latter’s work, thus undermining the elections and perhaps making them impossible to organize.

In brief, the disagreement stems from the fact that the Supreme Judicial Council has, in an official statement released early 2020, deemed the decisions of the Federal Court non-binding and unconstitutional because of the imbalance of its quorum. In its statement, the Council said that the “Court’s applicable law stipulates that the Court be composed of a Head and eight members and that it would not be quorate except with the presence of all its members. Since one of the Court’s members has retired, the Court has become inquorate. Consequently, all decisions made by the Court are irrelevant and cannot be described as binding”. On its part, the Federal Supreme Court considered unconstitutional Article 3 of its law No. 30 for 2005 which authorizes the Supreme Judicial Council to nominate the Court’s Head and members, demanding the CoR to enact an alternative article that is in line with Constitution provisions. In other words, the Federal Supreme Court will not be quorate unless the existing problem is solved. According to Representative Bassem Khashan, “the absence of the ratifying quarters of the election results, namely the Federal Supreme Court, means that it would be impossible to hold early elections before a law for the Court is enacted”.

Leaks indicate that Shiite blocs mediating to converge viewpoints have managed to develop a road map to solve the crisis between the Judicial Council and the Federal Supreme Court whereby the Law of the Federal Court No. 30 (2005) would be sent to the CoR for amendments to solve the problem of the appointment or replacement of new members of the Supreme Court. That is, the issue will again be subject to bargaining. The blocs wishing to delay the elections may manage to hamper the amendment of the Supreme Court law. The opposite would also be true if the blocs supportive of early elections gathered the largest number of votes to pass the amendment of the Court’s law.

Possible scenarios with regard to the elections and the electoral law

First scenario: agreement on reducing the number of constituencies and perhaps mixed elections, i.e. based on both lists and direct individual election. This method would satisfy the majority of the traditional political blocs that would see it as a new chance to preserve high representation within the legislative authority. The amendment may also include the adoption of manual counting and sorting and the amendment of the law of the Federal Supreme Court while maintaining the current structure of the Independent High Electoral Commission

The factors favouring this scenario are as follows:

1- Absence of public pressure; popular protests are at their lowest level due to the health conditions resulting from the coronavirus epidemic, preoccupation by people with the economic crisis, and the tightening of the security grip, especially that multiple constituencies and individual election were among the protesters’ top demands.

2- The desire of the Shiite blocs which had been adopting the multiple constituencies and individual election in early elections. On the other hand, differences over the electoral law could lead to a delay of the elections, especially that the Electoral Commission needs a period of at least one year to get prepared according to any new law.

3- There are other blocs that are affected by the law in its current version, such as the State of Law and the Fadhila (Virtue) in addition to the Kurdish blocs that will support the adoption of the proposed amendments.

4- The technical difficulties that prevent the accurate demarcation of constituencies (districts) in light of the population flow to the big cities and the lack of official statistics. Such factors could convince the blocs insistent on multiple constituencies, such as the Sairoun bloc led by Muqtada al-Sadr, to change their positions on the current law.

5- The capability of the large blocs and parties to impose their control over the offices and services of the Electoral Commission regardless of the cost.

Most probably, Parliament will tend to integrate the small and disputed districts among Arabs, Kurds and Turkmen into big constituencies, making the number more than 18 constituencies (the number of governorates) and less than the actual number of Iraqi districts. It will also adopt the electoral lists on the pretext of ensuring the women quota required by the Constitution.

Second scenario: maintenance of the current electoral law without change, re-structuring the Electoral Commission, and the possible bringing forward of the date of the elections, that is before its scheduled date in the summer of 2022. This scenario is contingent on the materialization of the following assumptions:

1- Insistence by the Shiite blocs on the multiple constituencies on the basis of one constituency per district despite the opposition of the Kurdish and some Sunni powers with the aim of setting a date for early elections.

2- The emergence of a new position by the Shiite Authority Ali al-Sistani whereby he would underline his insistence on the current version of the law without change.

3- The Kurdish powers may approve the preservation of the law as it is if an agreement is reached on a special status for the districts located in disputed areas, that is a “technical” agreement that does not require a new parliamentary legislation.

4- Return of the momentum of the popular protests, the rejection of any amendment that would lead to the return of the large constituencies and the list system in the elections, and the demand that parties refrain from interfering in the affairs of the Electoral Commission.

It is worth mentioning that agreement on the electoral law does not necessarily mean the setting of the election date, considering that such a decision is also related to the finalization of the structuring of the Independent High Electoral Commission and the composition of the Federal Supreme Court, as well as the electoral interests of the political powers.

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[1] A complicated calculation method whereby votes are calculated for every one of the “semi-closed” lists based on a common divisor of 1.7 or 1.9 and distribute the results to the candidates within the same list in sequence from among those who could not reach the “electoral threshold”, that is the number of votes needed to obtain an electoral seat in every constituency.

[2] For more on the amended electoral law, see an analytical paper previously prepared by the Emirates Policy Center (EPC), entitled “The New Iraqi Elections Act: Features, Failings, and Challenges”, 12 January 2020. Available at: https://epc.ae/brief/the-new-iraqi-elections-act-features-failings-and-challenges

[3] “An agreement in principle that has not yet reached maturity among blocs to amend the electoral law”, Al-Mada, 7 June 2020. Available at: https://almadapaper.net/view.php?cat=227357

[4] “Controversy over appointments of the Iraqi Electoral Commission”, Asharq al-Awsat newspaper, 28 May 2020. Available at: https://bit.ly/3hMYlLr

[5] “‘Internal and mysterious’ appointments in the Electoral Commission raise controversy: Sairoun defends”, ultrairaq, 3 June 2020. Available at: https://bit.ly/3hSQFY8 

 

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