Becoming prime minister amid breaches of constitutional deadlines and rules

The 2005 Iraqi constitution is an ambiguous and incomplete text when it comes to political systems of governance. While it is valuable to have explicit constitutional provisions, they are not always clear in their meaning and, as such, have proven to easily become central to political tensions, subject to various interpretations, or even become irrelevant.

Over time, political parties and officials have asked the federal supreme court to interpret some contested constitutional provisions on multiple occasions, despite the fact that the court’s rulings are supposed to be final and binding to all authorities including the court itself.

There are, however, numerous examples of constitutional provisions and rules outlining the process of government formation for which even interpretations by the nation’s highest court have become almost incidental to the political processes. These rules were violated several times in the post-2018 general elections, from the beginning with the formation of the administration of the now-resigned Adil Abdul Mahdi to the nomination of the current prime minister-designate, Mustafa al-Kadhimi, who heads the Iraqi National Intelligence Service.

According to the Iraqi constitution, parliament’s largest bloc must nominate a prime minister within 15 days of legislative elections. The candidate is then to be officially nominated by the president and tasked with forming a cabinet within one month to then face a vote by lawmakers. This might be seen as a relatively achievable process, yet this same provision has become the biggest obstacle of government formation and political stability since the first general elections of 2005. This is because parliamentary elections have never delivered a majority to any one party to form the government. Therefore, forming a government under the system enshrined in the constitution has always been a lengthy and difficult task, chronically subject to cabinet positions being chosen and even traded outright during protracted negotiations between parties.

After the May 2018 national elections, it took political factions six months to appoint Abdul Mahdi as prime minister following an alliance between parliament’s two main political blocs: Sairoon, led by Shia cleric Muqtada al-Sadr, and the Fatah bloc, led by Hadi al-Amiri, an influential leader of the Iran-backed Popular Mobilization Forces (PMF) militias. Abdul Mahdi was forced to resign in November 2019 under pressure from a mass anti-government protest movement that began in early October. This has spun the country into a new endless circle of searching for its next premiere. At this specific moment, we are curious to see whether the third prime minister-designate will prove successful in forming a government that parliament can achieve enough of a consensus on to approve. 

It is appalling but not surprising for anyone following political developments in Iraq to see the striking series of constitutional violations that have gone largely unnoticed during that drawn-out process. The prime ministerial resignation is an unprecedented development in post-2003 Iraq and the constitution provides no provision to regulate it.

The Bylaws of the Council of Ministers NO. 2 of 2019 clearly states that the prime minister shall present his or her resignation to the president of the state. Despite that, Abdul Mahdi instead presented his controversial resignation to the parliament. Together, lawmakers and their political parties simply ignored the few objections made by academics to the blatant illegality of the resignation process and decided to approve it.

An even larger scale of both individual and collective violations of constitutional deadlines went unnoticed in the search for new prime minister. According to the relevant article, a replacement for Abdul Mahdi should have been identified 15 days after his resignation in early December, but instead took nearly two months to select the ultimately unsuccessful first prime minister-designate, former communications minister Mohammed Allawi. Then, on the fifteenth day following Allawi’s withdraw, President Barham Salih asked the federal supreme court to rule on the matter.

The court authorized the president, as stated in Article 76 of the constitution, to nominate a replacement candidate after the previous one had withdrawn if the major parliamentary bloc fails to do so. In other words, the president has exclusive power to act upon the matter of nominating new prime minister-designate. Although the president followed the court’s ruling in the case of the second unsuccessful candidate, former Najaf Governor Adnan al-Zurfi, he then can be said to have gone against same ruling by issuing a presidential decree for the third candidate, Kadhimi, by nominating him, as he explained, “based on the nomination by the attached parliamentary blocs.”

In addition to that, since November, the government has been acting in its caretaker capacity which requires deciding only on the most urgent of matters. In another unsurprising development to observers familiar with Iraqi politics, the caretaker ministers have gone further and often continued to act like a normal cabinet. These actions have gone almost unnoticed and with a conspicuous absence of official complaints from state institutions and officials. This includes the president, who is charged with being the guardian of the constitution, and legislators, who are constitutionally entrusted with the duty of holding the government accountable.   

The experience of governance in post-2003 Iraq tells us that, in forming a new government, a most crucial relevant constitutional provisions are in danger of becoming no more than mere words on paper, no matter how clear or controversial these rules might be. As such, who stands to gain from this, who holds and loses authority to govern Iraq, cannot be said to be a matter of rules or even of contested interpretations and tensions between formal institutions of the state; the cabinet, the parliament, and the judiciary.

In reality, political horse-trading between other informal authorities like militias, religious players, and even tribes–and of course numerous external forces–will ultimately decide who governs. Under the weight of plunging oil prices, a budget deficit expected to be in the billions, and the ongoing struggle to contain the coronavirus, Iraqis are now, yet again, conscribed to fight the separate battle of who is to govern them. 

Majida S. Ismael holds a Ph.D. in Public Law/Constitutional Law from the University of Liverpool, England.

The views expressed in this article are those of the author and do not necessarily reflect the position of Kurdistan 24.    

Editing by John J. Catherine