21 March 2004

Building a better paralytocracy

The Iraqi interim constitution requires a two-thirds vote:

  • in the National Assembly

    • Article 36(A) to elect the Presidency Council
    • Article 36(A) to elect a replacement to a vacancy in the Presidency Council
    • Article 37 to pass a bill vetoed by the Presidency Council
    • Article 38(B) to nominate a prime minister if the Presidency Council cannot agree on one

  • in the Supreme Court

    • Article 44(B0(1) and (D) to rule on disputes between different levels of government

  • in the electorate

    • to be one of 3 provinces rejecting the permanent constitution

Article 36(C) of the interim constitution requires a unanimous vote in the Presidency Council to make any decision.

Article 3 of the interim constitution requires a three-quarters vote in the National Assembly and a unanimous vote in the Presidency Council to amend the constitution itself or the not yet written Annex.

Suermajorities are not unusual. However a unanimity rule for the executive is, especially when that carries a veto on constitutional amendments. There's an old joke that the Australian constitution was written to punish New South Wales, the largest state. This constitution not only punishes the Shi'ites, it deprives the whole system of any real chance of working. Iraq has no tradition of liberal democracy, or even familiarity with the kinds of parliamentary compromises that are necessary to keep constitutional structure working.

Weirdly enough, the constitution abandons the supermajority principle when it comes to electing the Assembly president:

The president of the National Assembly shall be the individual who receives the greatest number of votes for that office; the first deputy president the next highest; and the second deputy president the next.

That system was used until 1800 to elect US presidents. It is an unpredictable and unaccountable system that tends to produce splits and disputes. See the Jefferson/Burr election. Depending on the number of Shi'ite candidates for the presidency it could feasibly produce an Assembly Speaker diametrically opposed to the Presidency Council and the Prime Minister. Equally (and the system's impact is unpredictable) it could produce an Assembly President tightly tied to those groups. We are not even told whether each deputy gets one vote or 3 in electing the Assembly Presidency or what the relationship is between the Assembly's president, first deputy president and second deputy president.

Finally, nowhere are we told (in clear terms) whether a two-thirds vote means 2/3 of all deputies or 2/3 of those present and voting, although that might be clearer in the Arabic original.

Under this arrangement, the most obvious solution is a deal with the Kurds. That would give the Shi'ites working control of the Presidency Council and the National Assembly. The Sunni will feel as isolated as they do now. Are they likely to argue for amendments to the terms of the constitution, or simply to call in question the thing's dubious legitimacy?

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