When Iraqis voted for a new constitution following the US invasion of their country in 2003, US President George W Bush, who ordered the conquest, hailed the referendum as “a momentous moment in the history of the Middle East”.
Bush described the successful passage of the document, drafted by an Iraqi panel chosen by an assembly elected in 2005 under pressure from the anti-occupation resistance, as a “historic day in the history of freedom.”
In its preamble, the framers of the new constitution pledged to build “a nation of rights” and to ensure that the document “preserves Iraq’s free union of people, land and sovereignty”.
Nevertheless, this constitution, which promised enormous opportunities for a peaceful, free and democratic Iraq after the collapse of the regime of former dictator Saddam Hussein, topped the list of problems in restoring stability to the beleaguered country.
For more than 15 years, the abysmal record of misconduct and failure to uphold the standards of democratic governance as set out in this document has been the primary reason for state failures and continuing conflict in Iraq.
The current Iraqi government crisis is a stark example of the deep-rooted and still unresolved constitutional weaknesses of the post-Saddam political order.
More than four months after national elections were held in Iraq last October, the country’s political groups have been unable to agree on a new president, a necessary step under the constitution before the appointment of a Prime Minister and the formation of a new government.
The poll was due to take place later this year, but it came in response to mass protests against corruption, unemployment and poor public services that erupted in 2019.
The vote was also marred by one of the lowest turnouts in the country’s history, reflecting widespread apathy and disillusionment with government dysfunction and a lack of accountability.
He was also mired in protests over the election result and disagreements over which parliamentary bloc had the right to form a government and who should be the next prime minister that led to the four-month political deadlock.
The controversy has raised tensions between different parties, particularly among Shiite groups who disputed the election result and the two main Kurdish parties who are vying for the post of president.
In the southern province of Masyan, gunmen believed to belong to the Saraya Al-Salam militia of Iraqi Shiite cleric and politician Muqtada Al-Sadr and rival Asaib Ahl Al-Haq were allegedly involved in tit-for-tat assassinations , sparking unbridled tribal violence .
The disputes went to the Federal High Court (HFC), effectively the country’s constitutional court, where the plaintiffs sought rulings on many constitutional issues raised by these ugly episodes of Iraqi politics, even though they themselves had even pioneered the misuse of the country’s constitution.
The unrest began with a lawsuit brought by a group of Shia parties who had contested the election results, asking the court to annul the election of the speaker of parliament on the grounds of irregularities in its first session.
The HFC dismissed the case and ruled that the parliamentary session in which Sunni President Mohamed Al-Halbousi was elected was constitutional.
Many experts, however, said the court may have broadened its interpretation of the constitution, which is vague about the role of the assembly speaker.
Then there was the controversial case of the registration of the largest bloc in the 329-member parliament which is constitutionally mandated to appoint the next Iraqi prime minister.
While the constitution says the president should ask the “largest parliamentary bloc” to appoint the next head of government, it does not say how that bloc should be formed, making it a constant battle in post-election times.
After a simmering dispute in 2010, Iraq’s highest court identified the largest bloc as “any political party or coalition of parties that has the largest number of seats formed in the first session of parliament”.
Since the US-led invasion that toppled Saddam’s minority Sunni regime, Iraqi governments have been dominated by parties from the country’s Shiite majority in coalitions that also included Kurdish parties and Sunni representatives.
A new electoral law following protests calling for fundamental political change was based on dividing Iraq into smaller electoral districts instead of the old one which designated each of Iraq’s 18 governorates as a single constituency.
He also banned newly elected MPs from moving from their registered lists to others, a practice used by political blocs to increase their membership instead of other kinds of incentives. This decision made the identification of the largest bloc in parliament more problematic
Al-Sadr, whose Sa’roon slate won 73 seats in parliament, was the first to announce he had the largest parliamentary bloc to emerge from the vote and therefore had the right to nominate the next prime minister .
But the Coordination Framework (CF) Shia Alliance, which disputed the poll results, said it handed over a list with the names of 88 MPs, vying for primacy over which group should be recognized as the most important. .
The HFC became involved in the dispute when it decided that the largest bloc could be formed anytime after the first session of parliament, paving the way for Al-Sadr to form the new government based on his alliance with Sunnis and Kurds and eliminating its Shia rivals in the CF.
More constitutional confusion was created when the court on Sunday ruled to bar Kurdish politician Hoshyar Zebari from running for the Iraqi presidency against incumbent President Barham Saleh, citing a complaint filed against him for corruption.
As a result, Iraq’s parliament indefinitely postponed a planned vote for president and reopened nominations for the post, throwing the process into further disarray.
This decision, aimed at giving a chance to a replacement for Zebari, clearly violates an article of the constitution which stipulates that the president must be chosen by parliament within 30 days of its first session.
Supreme courts around the world have authority unique in democratic nations, and their jurisprudence is valued for seasoned, apolitical constitutional interpretation.
The Iraqi constitution should have established a democratic parliamentary system in which the executive branch of government is responsible to the legislature.
In principle, a government in a parliamentary system should be formed by a party or coalition of parties with the largest representation in parliament, with its leader becoming prime minister.
The Iraqi governance system was also supposed to be based on a political consensus that would unite all Iraqi communities in a national project to rebuild the country on the basis of compromise and mutual benefit.
In practice, however, constitutional flaws and the misuse of the consensus system, coupled with mismanagement and corruption, have plunged the system into perpetual dysfunction and set off an endless spiral of conflict.
Iraq’s post-Saddam-era political system, which was orchestrated by the US occupation authority after 2003 in conjunction with the Iraqi cronies it brought to power, was never parliamentary or even democratic.
In the four elections that have taken place since 2006, all of Iraq’s parliaments have been automatic rubber stamps with little or no real authority as power has remained in the hands of the ruling oligarchs.
The last two prime ministers were not even elected members of parliament and most ministers either. Almost all senior government and security force officials who are required by law to be appointed by parliament have not been sanctioned.
No one in the small political circle that is currently involved in negotiating Iraq’s next government has been elected, even though they are the ones who select government leaders and set the rules of engagement for the next four years.
There are huge political and partisan interests in Iraq’s highest court itself, whose judges were appointed by the ruling oligarchs and vetted by the previous parliament under the same power-sharing system that is in place elsewhere.
Some 19 years after Saddam’s ouster, the interpretation and application of Iraq’s constitution remains entirely dependent on the whims and dictates of its ruling elites who continue to undermine the country’s long-term democratic future.