The Federal Supreme Court in Iraq decided, after a long wait lasting over a year, that the decision made by Prime Minister Haider Al-Abadi to abolish the post of vice-president of the republic, as part of the reforms he announced in August 2015 was unconstitutional.
It was very obvious at the time that Al-Abadi’s decision was an attempt to get rid of political opponents who are considered an obstacle to him imposing his authority. Nouri Al-Maliki was the main target of this decision due to the fact that he competed with Al-Abadi for authority, both by means of his dominance over the State of Law Coalition, who actually voted Al-Abadi into the position of prime minister by a very limited number of votes (Al-Abadi received only 5,151 votes) or by means of his dominance over the Shia militias that he reproduced as of mid-2012. This was an attempt on Al-Maliki’s part to use them in any potential Shia-Shia conflict, specifically with Muqtada Al-Sadr. Al-Maliki also competed for authority by means of his influence, which he built in various institutions, including the judiciary, over eight years.
The three deputy vice presidents (Nuri Al-Maliki, Ayad Allawi and Osama Nujaifi) were all appointed to office as part of a deal to appoint the three presidencies and as part of a government formation deal after all three of them received the largest number of votes (Al-Maliki received 721,782 votes, Ayad Allawi received 229,709 voices and Nujaifi received 112,551 votes).
Their appointment to these positions was in accordance with Law 1 of 2011, which gives exclusive rights to the president to choose a deputy or more than one, with the approval of the Council of Representatives by an absolute majority. The law also gives him the exclusive right to accept their deputy’s resignation or request for his exemption on the condition of the Council of Representatives approves this by an absolute majority. Therefore, Al-Abadi did not have the authority to abolish the position unless a law was passed by the Council of Representatives, as laws can only be abolished by other laws.
When he made the decision, Al-Abadi did not intend on going to the Council of Representatives with a draft law to amend or abolish the vice president law, as he was well aware that it would be difficult to pass such a law. The Council of Representatives voted on a number of reforms, including this decision, despite knowing that Al-Abadi’s decision to abolish the position was illegal because of the pressure of the popular protests that demanded these reforms.
The Federal Court itself relied on the time factor to delay adopting any position regarding the unconstitutionality of Al-Abadi’s decision out of fear of the public’s reaction. It was one of the institutions hated by the protests who described it as part of the judiciary authority, due to the fact that it is politicised. The truth is that this court was manipulating the time factor when issuing its rulings, as some rulings were issued in less than 24 hours, such as its ruling regarding the interpretation of Article 76 of the Constitution regarding the largest Council of Representatives bloc.
In 2010, this prevented the Iraqi candidates’ list from its right to form the ministry and gave the right to Al-Maliki. Meanwhile, it delayed other rulings regarding constitutional interpretations for years, as in the case of its ruling regarding the unconstitutionality of distributing the parliamentary seats in the 2005 elections. This ruling was issued 15 months after the date of the Iraqi Accord Front challenged the distribution that was deprived it from a large number of seats (the suit was filed in January 2006 and the court only issued its ruling in April 2007). The court only issued a ruling stating the unconstitutionality of the distribution of the seats, but did not mention this affecting the legitimacy of the election!
However, the court’s decision did not only state the unconstitutionality of Al-Abadi’s decision to abolish the position of vice president, it went as far as stating that the constitution stipulates that there must be one or more deputies for the president, in accordance with Article 69 of the Constitution, and that any abolition of the position requires a constitutional amendment. This practically preserves the position of vice president due to the complexity of the procedure for constitutional amendments.
However, careful review of the constitution would reveal that Article 69 does not stipulate the existence of one or more deputies for the president. Instead it stipulates: “The provisions for nomination to the office of one or more Vice Presidents of the Republic shall be regulated by law.” In addition to this, Article 66 does not stipulate the existence of a vice president, as it states: “The federal executive power shall consist of the President of the Republic and the Council of Ministers and shall exercise its powers in accordance with the Constitution and the law,” and did not mention the position of vice president.
Moreover, Article 75, clause 4, was more explicit in not stipulating a vice president, it stipulates that “Fourth: In case the post of the President of the Republic becomes vacant, the Speaker of the Council of Representatives shall replace the President of the Republic in case he does not have a Vice President, on the condition that a new President is elected during a period not to exceed thirty days from the date of the vacancy and in accordance with the provisions of this Constitution.”
A review of the Supreme Federal Court’s rulings over the years reveals that it was indeed politicised in most of its rulings, and that these rulings serve the interests of the strongest political players. Hence, we find that it issues contradictory rulings from time to time, according to the developments and shifts in the balances of power. The same court and the same judges issued two contradicting rulings regarding independent committees. The first was issued in 2006, in which the court decided that independent committees are not part of any state authorities and that it is responsible for itself before the Council of Representatives. Meanwhile, in 2011, it decided that the independent committees must follow the executive authority, which was the desire of Prime Minister at the time, Nouri Al-Maliki. In 2011, it issued a ruling stating that the Council of Representatives does not posses the authority to present draft laws without the approval of the government, which was an implementation of Al-Maliki’s desires, it then contradicted this in 2015 when it reinstated their right to present draft laws.
The court’s latest ruling, which is politicised in its timing and content, politically reproduces the personalities of the three vice presidents – especially Al-Maliki – in a manner that allows them to regain their influence at a time of provincial elections. Moreover, linking the abolition of the vice president’s position to a constitutional amendment is an undermining of Al-Abadi or the Council of Representatives by abolishing or modifying this position.
Hence, there is an incidental finding caused by the court’s decision, which manifested in the form of the return of Osama Nujaifi, along with his brother Atheel Nujaifi, the two most influential political figures in Mosul, and the two most opposed to the participation of militias in the Mosul battle and to some, not all of the maps planned for the post-Daesh phase. They are both close allies of Turkey and are both basically responsible for the Zhelkan camp in Bashiqa and the National Mobilisation militia trained by Turkish troops. This will have a clear impact with regards to the ongoing crisis today between the Shia political players in Iraq and Turkey regarding the presence of the latter’s troops in Iraq.
Translated from Al-Quds Al-Arabi, 13 October 2016
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