It has been more than ten years since the first session of the elected Iraqi Parliament was held after the US occupation of Iraq in 2003. The first parliamentary elections were held in 2005, after the ratification of a permanent constitution in a referendum in which all elements of the Iraqi people participated, marking a revival of parliamentary life in Iraq after it had been stumbling under the Baath regime.
During this decade, Iraq has undergone several security, political, economic, and social crises, which obstructed the work of the parliament and its implementation of necessary legislation to convert the constitution to enforced legislative acts and the regulatory work of the parliament. Throughout this period, Iraqi Parliamentarians were accused of failing to do their jobs and being committed to the narrow interests of their political parties and blocs, at the expense of social welfare, civil peace, and democracy.
In order to understand and evaluate the performance of the Parliament, it is important to review and analyse the text of the Permanent Iraqi Constitution—all the articles of the constitution—in terms of the powers granted to the parliament, as well as the structure of the main political parties, blocs, and key players represented in the parliament, and understand how these politicians deal with the provisions of the constitution.
Parliament in the Constitution
The Iraqi Constitution addressed the parliament in 15 articles (49-64), which defines a mechanism for determining the number of members of parliament based on the census, and identified the requirements for holding parliamentary sessions and selecting the parliament speaker and his deputies. The constitution also specifies the duration of each legislative session and the mechanisms for voting and deciding on laws; it also grants the parliament the right to propose bills. Article 62 of the constitution entitles the Parliament to review the general budget and amend it, if necessary, through specific mechanisms. The constitution also grants members of parliament (MPs) immunity and special protection against holding them liable for “the opinions they express during parliamentary sessions, without prosecuting them before courts for such views or opinions.” Article 63 provides the mechanisms for removing parliamentary immunity. In order to further ensure the protection of the Parliament, the constitution has established mechanisms for dissolving the parliament and calling for new elections, requiring that the Council of Representatives be dissolved “only by the absolute majority of MPs.”
Article 61 acknowledges and specifies the competencies of the Council of Representatives, entitles it to enact federal laws, oversee the performance of the executive authority, elect the President of the Republic, and regulate the signing of international treaties and conventions. The Parliament shall approve the appointment of senior staff in the Constitutional Court, public prosecutors, the Judicial Supervision Board, ambassadors, officials with special grades, as well as the army chiefs of staff and members of the intelligence service.
Article 61 also regulates the possibility and mechanisms for holding the President accountable and relieving him of his post, in addition to holding the prime minister and other ministers accountable. MPs are entitled to “present any issue for discussion and ask for clarification on the policy or performance of the cabinet or any of the ministries,” as well as to withdraw their confidence in the prime minister or any minister by an absolute majority.”
The Iraqi Council of Ministers may not declare or reinstate a state of war or emergency without referring to the Council of Representatives. In the event of war or state of emergency, the parliament does not lose its regulatory right. The constitution states that the prime minister is to present the Council of Representatives with “measures taken and their results during the period of declared state of war or emergency within 15 days of completion of these measures.”
The regulatory and legislative aspects as stipulated by the constitution do not pose major constraints on deciding upon legislation, laws, or regulation of the government. This is due to the fact that the constitution guarantees a multitude of powers to members of parliament.
The political situation, however, proved an obstruction due to legislations and appointments of senior staff requiring political consensus from all political blocs in order to be passed, since the majority of resolutions presented to the parliament for voting depend on an absolute majority of votes.
For parliamentary oversight of the government’s performance, all components of the parliament are represented in the government under the so-called quota system, which undermines oversight because Iraqi MPs do not show effective opposition to the policies of the government. For example, the parliamentary interrogation mechanism as one form of parliamentary oversight is being misused, according to Iraqi observers, because political blocs tend to blame one another. As a result, none of the Iraqi ministers have been interrogated and consequently dismissed for poor performance or corruption charges, despite the fact that there are many corruption cases in Iraq, ranked 161 of 168 countries in Transparency International’s 2015 Corruption Perceptions Index. Even when the parliament exercised its right to request questioning, as happened several times with former Prime Minister Nuri al-Maliki, the prime minister always refused to appear before the council under the pretext of political miscarriage or because he was busy.
The Iraqi Parliament has not enacted the necessary legislation to transform the provisions of the constitution into enforced laws that transform Iraq into a democratic state that respects the rule of law and human rights. Many Iraqi laws remain dependent on legislation enacted before 2003. Article 130 of the permanent constitution stipulates that “legislation remains in effect unless it is annulled or amended in accordance with the provisions of the constitution,” so the parliament refrains from making laws, and the previous legislation remains in force.
The constitution, by way of Article 38, approves the freedoms of opinion, expression, and press despite the restrictions of the phrase “without prejudice to public order or morals”. As a result of lack of legislation and laws supporting freedom of expression consistent with international norms and conventions guaranteeing freedom of expression – which Iraq is party to – it is up to the executive authority and judiciary to resort to Article 130 of the constitution and enact laws that were formulated prior to 2003. Especially Penal Code No. 111 of 1969 is notorious, as it asserts that media is linked to or engaged with national security, public morals, and the supreme interests of the country.
Though a law protecting journalistic freedoms was passed by the Iraqi Parliament in 2011, many experts consider the law disappointing and representing a threat to freedom of press.
According to Article 48, the federal legislative authority of Iraq is comprised of the Council of Representatives and the Federation Council. Although Article 65 of the constitution defines the Federation Council’s members as “representatives of those regions and governorates not associated with a region,” the constitution does not address the composition and responsibilities of the Federation Council nor all that is involved in “a law that is enacted by the majority of members of the Council of Representatives.” In other words, the 2005 Constitution gave the Council of Representatives full powers through the Federation Council draft law. Despite the legislative importance of the council, to date the Federal Court is the institution carrying out the tasks of the Federation Council regarding vetoing or passing of laws. Legal experts in Iraq consider this unconstitutional. Debate about the draft Federation Council Law was postponed for many years after credence of the constitution.
In 2014, the parliament held initial deliberations on the draft law, but it has not yet been presented for second deliberation, nor approved or amended until today as the details of the law are reason for dispute between the various political parties.
On the other hand, successive parliaments have passed several laws of political, economic, and social importance. Most prominent of these was the Amended Governorates Not Associated with a Region Law No. 21 of 2008, amended for the second time in 2013 and enforced in 2015. By way of the administrative decentralization system, it provides governorate councils with the possibility to assess the service and economic needs of each governorate, and allows them to start developing thereon. Parliament also approved the Social Protection Law – addressing social security – the Labour Law; as well as the fourth amendment to the Street Paving Law. Should these laws be implemented effectively, they would have a profound impact on the lives of Iraqis.
Iraq’s labour law is advanced compared to similar laws in other countries of the region, because it is based on the conventions of the International Labour Organisation and the Arab Labour Organisation. It protects trade-union associations and the freedom of trade-union organisation, and it addresses child labour and sexual harassment in the workplace.
Structure of Iraqi Parties
The main problem of the various Iraqi parliaments since 2003 has been the sectarian and ethnic structure of the parliament. Most parties and coalitions in the Iraqi parliament are either sectarian or nationalist, which has led to agreements between these trends on “sectarian apportionment,” a synonym for “consensual democracy” as a political system of governance. This is evident in the constitution’s adoption of the absolute majority mechanism in law enactment, decisions, and appointments by the parliament. The parties failed to agree on the general framework of the new Iraqi state, so many controversial issues were deferred when the constitution was drafted.
During nearly a decade of parliamentary life, it remains difficult for the Iraqi parliament to enact or amend controversial laws, and it continually defers them. For example, Election Law No. 16 of 2005 remains controversial amongst political streams, and prescribes the method of electoral lists, rounds, and vote counting system in addition to the topic of dual citizenship. The law is amended each election cycle. There are also many controversial laws that have not yet been enacted because of the lack of trust between political blocs. A consensus has not been reached yet on the structure of the government, including the laws on general amnesty, the National Guard, and the sharing of oil and gas revenues. Many observers believe that enactment of these laws without consensus between the chairmen and representatives of political blocs outside the parliament and before submitting the draft laws to the parliament contributes to continuing political and social tensions in Iraq.
The political and security situation in Iraq means that a breakthrough in the legislative work of the parliament and its organisation will not be achieved any time soon.
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This is the equation."
IBN RUSHD/AVERROES (1126 – 1198)