The Iraqi electoral law and the veto

Reidar Visser has an appropriately entitled post on the “Constitutional Disintegration” in Iraq, in the wake of the veto issued by the Sunni member of the presidency council. Regarding the provisions that were vetoed:

Hashemi protests the low quota of seats assigned for out-of-country voting, aka the “national” and compensatory” seats that will total 5% of the total seats less a minority quota of 8 seats. The specific figure is set not by the law but by the Iraqi elections commission (IHEC) based on ministry of trade statistics, and in practice has recently been stipulated to 8 seats. The constitutional requirement is one parliamentary deputy per 100,000 Iraqis; accordingly, unless one really believes there are less than 800,000 Iraqis abroad, it is very hard to disagree with Hashemi. The minuscule quota of “national” and “compensatory” seats” that is left after the deduction of minority seats is probably the most explicit violation of the constitution that can be found in the amended electoral law, and as such the law should be eminently vetoable.

So, the decision by “vice president” (but really a co-equal member of the three-person presidency council, as I will come back to) to veto the bill is clearly admissible constitutionally. The bigger questions come from both the attempt to veto only part of the bill, and from how the parliament and cabinet have responded.

Visser again:

This is an attempt at rejecting only a single article of the amendment to the election law. Through instructing the parliament to revisit only a limited section of the bill, Hashemi is entering unchartered constitutional territory…

Many constitutions contain provisions for partial vetoes, which can have one of two effects (depending on specific constitutional provisions): either (1) leading to the promulgation of the rest of the bill, with the vetoed parts separated from it and sent back for reconsideration by the legislature, or (2) requiring that none of the bill be promulgated until after the legislature has chosen between its original bill and the bill as amended by the executive. The latter is common in many Latin American systems, and appears to be what Hashemi is trying to do. In fact, this morning I saw (on Mosaic via Link TV, originally from Al Arabiya) an interview with the chairman of the presidency council (or “the president”), Jalal Talabani, who was trying to put a good spin on his colleague’s decision. He said that the council had “voted” to “approve” the bill, and that preparations for the elections should go forward, but that the council was requesting that the parliament revisit the objectionable provision (on Iraqis abroad) in the near future. If this is what the presidency council was attempting, it would be a case of the first type of partial veto, as I sketched above. Only one small problem: the Iraqi constitution has no provision for this sort of veto.

Then it was parliament’s turn to respond. Visser again:

If the attempt by Hashemi to restrict the veto to a single article thus seems somewhat problematic, reactions to the veto by Iraqi parliamentarians have been even more worrying and serve to reinforce the impression of constitutional frailty in today’s Iraq. In a strongly worded letter, the second speaker of the parliament, Khalid al-Atiyya, a Maliki [the PM] ally, today dismisses the veto for being unconstitutional “because it does not refer to a violation of a single clause of the constitution or to the by-law of the parliament”.

As Visser goes on to say, there is no requirement of the presidency council to stipulate constitutional objections in issuing a veto. (It is, after all, an executive veto, not a judicial one.) As for the politics of the veto, it should not be surprising. Sunnis are over-represented among Iraqis who have fled during the war and occupation–their regions of the country have been the most violent. In fact, it was precisely to protect Sunni interests that Iraq’s three-person presidency was created. As I noted at the time ( September, 2005), the last-minute change from a unitary to a tripartite presidency was a “nontrivial concession to the Sunni negotiators.”* Now its minority-veto provision has been exercised. (I am not sure if this is the first time or not, but it certainly is highly consequential.)

Vetoes by the presidential council can be overturned by a three-fifths majority (one of the rare cases in a parliamentary democracy of more than 50%+1 being required to override a veto).

As for the electoral law itself, an earlier post by Visser provides a table of the magnitudes of each district (governorate) under the new law. The district magnitudes will be higher this time, partly because the assembly size is increased (from 275 to 323) and partly because of the reduction in the number of seats that are to be allocated in a national compensatory tier.

The increased district magnitudes (which now range from 7 to 68 rather than 5 to 59, as in 2005) would imply greater proportionality at the district (governorate) level. However, the sharp reduction in national compensation seats (only 8, given that 8 other national seats area reserved for various ethnic minorities and Iraqis abroad) implies that the overall system will be less proportional. The average magnitude now (ignoring the “compensation and minority seats”) would be 17.5, whereas the effective magnitude was previously 275 (12.8 at the governorate level, but party shares in parliament determined as if one national district).

Visser further notes that, at the district level, “surplus seats are also distributed to winning lists only.” I do not know the formula to be used to allocate seats, but from this brief reference to surplus seats, I assume it is some form of quota and largest remainders, but that the district threshold for earning a seat is a full quota (which would be 1/M if it is simple quota or 1/(M+1) if it is Hagenbach-Bishoff). But I am only speculating here.**

And then there is the question of list type. Supposedly, the lists are open. However, I have yet to see with certainty that preference votes alone determine the ranking of lists–the definition of open lists. I understand this to be the case in the new law, but I still have some doubts (simply because many times open and “flexible” lists are confused).

A move to open lists would be consistent with the near-elimination of national compensatory seats, given that it is hard and unusual (though not impossible) to design an open-list system with preference votes also applying for the compensation seats. (Typically compensation seats are distributed via closed lists.) Assuming the district-level allocations are indeed now by open lists, I do not know how the few remaining compensatory seats are to be allocated to candidates, but they are such a small part of the total system that it barely alters its logic.

Of course, all this could be moot if the entire debate over the electoral law–which got quite heated–is reopened and the election is delayed, on account of the veto by the presidency council.

It is also worth noting that if the law ultimately goes ahead with its basic form intact, Iraq will have used, in just over a five-year period, each of the three main list types: closed lists (for the original constitutional assembly–in a single national district–and for the first parliamentary election, in governorate districts with national compensation), flexible lists (for the governorate assembly elections), and now open lists (in governorates with minimal national compensation) in 2010. Iraq has become quite a laboratory for list PR!

* The constitution talks about “the president” throughout, but one of the late amendments that brought Sunni actors along was a transitory passage that states that wherever the constitution says “president” it refers to the “presidency council.”

** It seems that a full quota of the national vote was not required in 2005, as a simple quota would have been 0.36%, yet there were parties with less than this represented in 2005. So, if I have correctly understood that this time there will be a threshold of a quota to obtain a seat, that is yet another reduction in proportionality. However, I would not make too much of either the near-elimination of compensatory seats or the threshold, as quota (whether simple or Hagenbach-Bishoff) and largest remainders (for quota-earning lists) with an average magnitude of 17.5 is still a quite highly proportional system.

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