Why Iraq is struggling to elect a president

Legal experts and politicians say Iraq’s Federal Supreme Court has breached the country’s constitution in a decision on 1 March to rule against parliament's decision to accept more nominations for the long-delayed presidency after a 30-day constitutional period expired in early February.

However, the court, Iraq’s highest judicial authority, has decided that the Iraqi parliament can make another decision with an overall majority vote of its members to reopen nominations for the presidency.

According to the second provision of Article 72 of the Iraqi constitution of 2005, the parliament must elect the president within a maximum period of 30 days from their first session after the election. The parliament held this session on 9 January and the period for electing the president expired on 8 February.

"Since the 2003 US-led invasion of Iraq and subsequent toppling of Saddam Hussein's former regime, power sharing has been mainly divided along sectarian lines between Shia Arabs, Sunni Arabs, Kurds, and Turkmen"

“One duty of Iraq’s Federal Supreme Court is preventing breaches towards the constitution, but unfortunately the court itself has side-stepped the constitution in its recent decision,” Latif Sheikh Mustafa, a constitutional law expert and former Iraqi MP told The New Arab in a phone call.

"The 30 day period outlined in the second provision of Article 72 is not subject to extension in any way, thus all measures that have been taken after that era are contrary to the constitution. The court should not have overridden its duties and breached the constitution to find legal exits to appease political sides.” 

He also said that the best court verdict would have been to clearly rule out that reopening the presidential nomination was unconstitutional in order to pave the way for holding fresh general elections, as is the case in many countries.

Yousif Mohammad Sadiq, a former Iraqi lawmaker from the Kurdish Change Movement (Gorran) and former Speaker of the Kurdistan Parliament, also asserted that the decision by Iraq’s Federal Supreme Court is “unconstitutional”.

“The recent decision by Iraq’s Federal Supreme Court is contrary to the Iraqi constitution, the provisions of Iraqi law for nominations for the presidency number 8 for the year of 2012, and a previous verdict by the same court in 2018 that bars the Iraqi parliament from issuing legislative decisions,” Sadiq told The New Arab in a phone interview from Baghdad.

“It is clear that Iraq’s Federal Supreme Court and its judges have been making a series of decisions, including barring Hoshyar Zebari from the presidential race, under big pressure from Iraqi political sides.”

But over the weekend, Iraq's parliament voted on 5 March to reopen registration for the presidency. The session was attended by 265 MPs, according to a statement by the parliament, with 203 MPs voting in favour while 62 lawmakers abstained.

Registration began on 7 March and ended by 9 March, the parliament said.

“But even if the parliament to decide to reopen nominations for the presidency," Mohammad told The New Arab prior to the parliament's vote, "such a decision is subject to legal complaints in front of Iraq’s Federal Supreme Court, thus the Iraqi political process is going round in an empty circle.”

Since the 2003 US-led invasion of Iraq and subsequent toppling of Saddam Hussein’s former regime, power-sharing has been mainly divided along sectarian lines between Shia Arabs, Sunni Arabs, Kurds, and Turkmen.

The Iraqi PM is Shia, the speaker of parliament is Sunni, and the presidency is Kurdish. The US and neighbouring countries, mainly Iran, have a major role in nominations for senior political positions.

"It is clear that Iraq's Federal Supreme Court and its judges have been making a series of decisions, including barring Hoshyar Zebari from the presidential race, under big pressure from Iraqi political sides"

“Iraq’s constitution has been written down on the principle of consensus among the different components in order to impede the reoccurrence of autocracy, thus I think Iraq’s Federal Supreme Court has been affected by this soul of harmony enshrined in the constitution,” Mohammad Hawrami, a Kurdish political expert on Iraq, told The New Arab.

“Reopening the gate for nomination for the presidency is absolutely unconstitutional and illegal, but the court in their decisions has been preserving a kind of balance among Iraq’s components; hence they found a legal exit for the sake of protecting the interests of the Iraqi people.”

Hawrami said that he thinks Barham Salih, Iraq’s President, has the biggest chance to be reelected.

“Because in the past four years Salih was successful in his post and managed to maintain a balance among Iraq’s components during big security and political challenges,” said Hawrami, when asked why he thinks Salih will be reelected.

“Nevertheless, Salih faces some challenges and personal hatred from some Kurdish, Sunni, and Shia sides. Even those sides had never suspected the abilities of Salih, thus I think the Iraqi lawmakers will vote with their conscience and would not risk the future of Iraq by voting for an inexperienced candidate.”

Salih in January issued a special pardon for Louay Jawad, the son of the former al-Najaf province governor who had been found guilty on drug dealing charges.

Salih, who said he had issued the pardon upon a request from Prime Minister Mustafa al-Kadhimi, in late February retracted it after massive criticism against him and al-Kadhimi went viral on social media platforms.

The pardon might shrink the chances of Salih and Kadhimi for a second term in their positions, as an Iraqi lawyer has filed a legal case against them - according to a formal court document, seen by The New Arab.

Dana Taib Menmy is an investigative freelance journalist from the Iraqi Kurdistan region writing on issues of politics, society, human rights, security, and minorities. His work has appeared in Al-Monitor, Al Jazeera English, Middle East Eye, The National, among many other outlets.

Follow him on Twitter: @danataibmenmy