Inside Iraqi politics – Part 5. A look at legislative progress: Sunnis’ and states’ rights

The first four installments of The Long War Journal’s series on Iraqi politics discussed the structure and progress of the executive branch, the composition of the legislative branch, and the status of key legislation. This installment continues the examination of important legislation.

A significant measure of political progress in Iraq is the parliament’s ability to pass laws on sectarian reconciliation and those stipulating the government’s long-term design. To those ends, the most significant pieces of legislation include the Unified Retirement Law, the Accountability and Justice Law, the General Amnesty Law, legislation on the status of Kirkuk, and the Provincial Elections and Powers Law. Some of these measures have passed, while others remain contested.

Unified Retirement Law, Accountability and Justice Law, and General Amnesty Law

These three laws specifically have the potential to advance stability and reconciliation. They are designed to clarify pension rules for Iraqis in need of economic support, reintegrate some former members of Saddam Hussein’s Baath Party into government employment, and release primarily Sunni Arab detainees accused of insurgency but held without trial or conviction.

The Coalition Provisional Authority’s 2003 decision to purge more than 1 million former Baathists from government and deny them retirement benefits created strong political and economic incentives for rebellion among those disenfranchised. What followed was the rise of a predominantly Sunni nationalist insurgency that presaged al Qaeda infiltration of Iraq and the resulting sectarian conflict. Taken together, the Unified Retirement Law and the Accountability and Justice Law remove some of the negative incentives by expanding the number of former Baathists who can re-enter public service or receive retirement pay from the government, though concerns remain about certain aspects of the latter law and its eventual implementation.

The 275-member Council of Representatives, Iraq’s parliament, passed the Unified Retirement Law by a 106-39 vote on Oct. 4, 2007, barely exceeding the minimum attendance of 138 required for quorum. The law grants retired civil servants pensions equal to 80 percent of their salaries and, significant for reconciliation, also provides pensions to members of the former Iraqi Army, many of whom had been involved in the insurgency. The law removes eligibility distinctions between those who retired before or after the fall of the regime of Saddam Hussein.

“It’s removing discrimination based on social status or political affiliation,” said Phil Reeker, Counselor for Public Affairs at the American Embassy in Baghdad.

The Unified Retirement Law paved the way for parliament’s Jan. 12 passage of the Accountability and Justice Law, also known as “de-Baathification reform.” This law reforms the previously sweeping terms of removal of former Baathists from government service, and was passed unanimously by the 143 members of parliament who were present, though several major voting blocs rejected it via abstention. The law features some terms favorable to Sunni reconciliation, including reinstatement of the jobs or pensions of those who were in the bottom six levels of the Baath Party’s 10 ranks, a clarification of pension rules, and a new appeals mechanism. But other facets of the law are considered potentially unfavorable to reconciliation and are strongly opposed by Sunni representatives. Those controversial aspects include the law’s maintenance of a committee that scrutinizes the rehiring of former Baathists and the extension of de-Baathification purges to new areas of government, including Iraq’s judiciary.

Heated sectarian debate characterized efforts to pass the legislation, and probably will mark its implementation. Much of the law’s potential as a step toward reconciliation will depend on who is appointed to the seven-person committee that will oversee its execution.

“There has been a long process of coming to a consensus   that’s not yet run its course,” said a Western diplomat speaking on condition of anonymity. “On one side the Sunni believe it goes too far and that the law, as it is written, could harm people who have committed no crime, simply because they were Baath members. At the opposite end of opinion there are people who feel it does not go far enough in punishing Sunnis. They ask why jobs and civil services positions are being returned to Baath members   when there hasn’t been enough attention paid to what are referred to as ‘the martyrs,’ people who were the victims of the Saddam Hussein regime.”

Almost all Sunni factions initially opposed the bill because of criticism that it did not reintegrate enough former Baathists. The lone exception was the prominent Iraqi Islamic Party, which subsequently relinquished support when members accused the government of ramming an alternate draft through parliament that was harsher to former Baathists. After passage by the Council of Representatives, controversy erupted at the final step of approval – its signing by the executive branch’s Presidency Council composed of Iraq’s president and two vice presidents. Sunni Vice President Tarek al Hashemi of the Iraqi Islamic Party alone refused to sign it, claiming the law embodied a “spirit of revenge” and counterintuitively criticizing that it would unfairly require those in current government service to vacate positions to make way for former Baathists. The bill became law without his signature after the expiration of the 15-day window for the majority of the Presidency Council to veto the legislation.

Ultimately, despite opposition by Sunni leaders in parliament, the practical impact of the law depends on its fair implementation, which US and Iraqi officials cautiously hope for but do not guarantee. Assuming equitable execution, the integration of hundreds of thousands of former Baathists into paid retirement or active government service could aid reconciliation by dulling economic and political motives for discord.

In addition, the parliament passed the General Amnesty Law on Feb. 13 in a package of laws that included the 2008 budget and the Provincial Powers Act. The measure, signed into law by Iraq’s Presidency Council on Wednesday, will pardon and release about 5,000 of the 24,000 predominantly Sunni detainees held in Iraqi prisons for more than six months without charge or more than a year without a court appearance. The law primarily affects prisoners held on suspicion of supporting the insurgency, while excluding those held in US custody, sentenced to death, or imprisoned for terrorism, premeditated murder, kidnapping, robbery with aggravating circumstances, sex crimes, drug trafficking, forgery, or smuggling of antiquities. Most analysts agree that the measure is a significant reconciliation step, given its clear benefit to the Sunni community. It had relatively enthusiastic support from lawmakers in the Iraq Accord Front, the largest Sunni bloc, who indicated that its passage would ease ongoing negotiations for a return to Prime Minister Nouri al Maliki’s ruling government. Members of the bloc walked out of cabinet positions last August in protest over perceived dominance by Shia and Kurdish parties.

Article 140 and the status of Kirkuk

Beginning in 1975, Saddam Hussein’s regime executed an “Arabization” policy on the northern city of Kirkuk: non-Arabs – including Kurds, Turkmen, and Assyrians – were forced out of the city to make way for predominantly Sunni Arab oil workers. In 2005, the drafters of the Iraqi Constitution sought to reverse Saddam’s policy. Article 140 of the document outlines three steps that were to be completed by a December 2007 deadline: a “normalization” process allowing thousands of non-Arabs to return to the city and reclaim seized property, the conduct of a local census, and a public referendum held to decide who has jurisdiction over the city. The vote would specify whether oil-rich Kirkuk will be administered by Baghdad, assimilated into semi-autonomous Kurdistan, or some other compromise.

The United Nations, US Iraq Study Group, and Turkey advocated postponement of the referendum as the constitutionally mandated deadline approached at the end of 2007. The vote has not yet been held. The UN and US believed the Kirkuk referendum too politically sensitive to take place in an already uncertain security environment, while Turkish officials feared that a Kurdish annexation of Kirkuk would boost Iraq’s Kurdish economy, forming the basis of an independent Kurdish state on the border, which in turn could spur an independence movement among Turkey’s Kurds.

But the Iraqi Kurds regard governing Kirkuk as an almost non-negotiable right, and their firm position sets the stage for sectarian discord with the city’s Sunni Arabs, Assyrians, and Turkmen. While the non-Kurdish groups ostensibly desire administration by Baghdad, they are really negotiating a degree of autonomy for the city instead of outright annexation by Kurdistan. Final implementation of Article 140, including the local census and final referendum on who runs the city, remain unsettled matters before Iraq’s government.

National government officials and the provincial Kurdish assembly have approved a plan developed and mediated by the UN to delay implementation of Article 140 for another six months. UN Deputy Special Representative for Iraq Staffan de Mistura is preparing to lead a technical effort to help the parties resolve some of their differences. Some US officials believe the UN is “very well-placed to do this” with the credibility and “technical expertise” capable of producing an agreement. Given that Kirkuk’s Kurdish-dominated local council has threatened to unilaterally break ties with the Iraqi government if Baghdad does not implement the referendum within the six-month extension, Western advisers have their work cut out for them.

The Provincial Powers Act and Provincial Elections Law

The proposed Provincial Powers Act and Provincial Elections Law are other pieces of legislation with the potential for significant political progress. Respectively, the laws codify the distribution of powers between the provincial and federal governments, and outline election schedules and rules for the provinces.

The Provincial Powers Act was passed 83-82 by parliament on Feb. 13 in a package of three laws that included General Amnesty Law and the 2008 Budget. But the bill failed the final step of approval on Wednesday when a majority of the Presidency Council refused to sign it.

“No agreement has been reached in the Presidency Council to approve the provincial elections draft law and it has been sent back to the parliament to reconsider the rejected articles,” according to a statement by the council, composed of President Jalal Talabani, Vice President Adel Abdul Mahdi, and Vice President Tariq al Hashemi. Talabani, a Kurd, and the Shia Abdul Mahdi, a member of the Islamic Supreme Council of Iraq (ISCI), specifically rejected the bill because of articles outlining federal authority to fire provincial governors.

The most recent draft of the bill creates a framework for the distribution of political power between the federal and provincial governments. The bill attempts to resolve a fundamental controversy, similar to the US tug of war between strong federalism and states’ rights. The delineation of power in the law also would clarify an inherent contradiction in the Iraqi Constitution, parts of which stipulate that nonfederal governorates have equal authority to the federal government, while other sections outline federal supremacy.

A secular Iraqi politician speaking on condition of anonymity asserted that the latest version of the bill assigned a large degree of authority to the provinces. “Maybe too much,” the politician ruefully added. But others disagree. Notably, ISCI and the Kurds advocate significant provincial powers; the Shia party advances decentralization to consolidate its current dominance of southern Iraq in the face of a pending electoral challenge by Sadrist rivals, while the Kurds dislike any provisions that diminish authority in their already semiautonomous region.

US strategy in Iraq has already advanced practical decentralization of political power as a mechanism to achieve reconstruction and security gains. Bolstered by the Iraqi federal government’s direct distribution of funds to provincial control, the strategy of empowering diverse provinces and locales facilitates rebuilding and removes incentives for insurgency. The resulting local hierarchies that are part of grassroots political progress would further integrate into an official government framework with the passage of the law. Specifically, the last draft of the Provincial Powers Act outlined the following:

1. The definition of legislatures and the procedures for establishing them. This includes conditions and termination of membership and the powers of provincial, district (local), and subdistrict (local) councils.

2. The rights and privileges of public servants, including pay, general responsibilities, terms of dissolution, and responsibilities of the heads of administrative units. These executives include the provincial ministers, the governor, and the district and subdistrict directors, who are like mayors.

3. Various other provisions, including directives governing provincial and local financial resources, various administrative boards, oaths, and oversight responsibilities.

In many ways, the latest bill is remarkable in its degree of decentralization. But the legislation maintains federal supremacy and oversight while mirroring the national government’s structure at the provincial, district, and subdistrict levels – roughly analogous to US states, counties, and cities. The spirit of the legislation can be found in its definition of a provincial council, essentially a province’s parliament, which would be the highest legislative and oversight authority within the province. The bill would give the council the right to create laws governing its own affairs, as long as they do not explicitly contradict the Iraqi Constitution and any federal laws.

This significant power-sharing scenario is agreeable to most of the naturally decentralized political movements, but significant differences obviously remain about certain aspects outlining federal authority. US officials see long-term challenges because of the complexity and importance of such power-sharing, as illustrated by America’s continuous struggle with similar questions.

“If you look at provincial powers, it’s absolutely crucial,” said Reeker. “But it’s very much an existential thing, like states’ rights in the US. Our founding fathers didn’t get that quite right in the 18th century, and so by the 19th century we had a pretty miserable Civil War, and we continued to work that out and even today there are issues of states’ rights.”

Furthermore, the passage of the Provincial Powers Act was viewed by Iraqis as a precondition for the proposed Provincial Elections Law. The former, as passed by parliament on Feb.13, stipulates that the latter must be passed within 90 days and that elections must take place by Oct. 1, 2008. Despite its subsequent rejection of the Provincial Powers Act, the Presidency Council has stated that plans to move ahead with elections will move forward, though some analysts are doubtful the deadline can be met.

Provincial elections are of especially pressing importance because it is anticipated that they will create a political outlet for the Sunni leaders who previously boycotted the political process and/or engaged in insurgency, yet who have since allied with the US and Iraqi government against al Qaeda in Iraq. The Awakening tribal alliance based in Ramadi probably will dominate provincial balloting, as its politicians are generally considered more representative of the Sunni population than the Iraqi Accord Front.

In addition, provincial elections will shape the ongoing power struggle between ISCI and the Sadrist Movement in southern Iraq. The Sadrists boycotted regional elections in 2005 and now want to challenge ISCI power through the ballot box, while ISCI wants to consolidate its current regional dominance through dramatic decentralization outlined in any final version of the Provincial Powers Act.

Opening the door to provincial representation for the Awakening movement, or Sahawa al Iraq, in Anbar province and new political parties in other provinces will also have implications for national elections in 2009, as will the design of the vote. Though the Provincial Elections Law is yet to be written and passed, some US and Iraqi officials either speculate or assert that the “closed party list” voting construct used in the last national elections will be replaced by votes cast for individual candidates, a change that should soften sectarian divisions and benefit parties with strong individual candidates.

US officials see a pressing need to hold provincial elections soon, believing they must occur before some elements of Sunni society become restless about lacking political power and official recognition in Iraqi society. But significant hurdles remain.

“The elections working groups are working with the GOI [government of Iraq], but they still have to do a rewrite of the elections law before they can even schedule the provincial elections. And there is a question of   [whether to] do them all at once or do them rolling by province,” said Colonel Martin M. Stanton, Chief of Reconciliation and Engagement for Multinational Corps-Iraq.

Hopes for quick provincial elections also are complicated by the lack of an elections budget and an accurate census, as well as drastic population shifts caused by the return of displaced persons within Iraq. The Oct. 1 deadline for elections reflects the urgency of involving local leaders in the political process, but presents a logistical challenge that US and UN officials are trying to address. A December 2007 report to Congress by General David H. Petraeus’ staff detailed US efforts to lay the groundwork for elections that include “working with the UN to assist [Iraq’s Independent High Electoral Commission] in building staff capacity, particularly in public outreach and internal organization; building database capacity that will support new registration; and establishing provincial, district and precinct-level election bodies.”

Potential flashpoints in the design of the elections law involve disputes over personnel who are appointed to the electoral commissions responsible for organizing the vote. On the Shia side, the Sadrists fear that the ISCI will try to rig the process in southern Iraq. And members of the Sunni Awakening movement are calling for the dissolution of the current electoral commission because they believe it is stacked with members of a rival Sunni party who will exercise inappropriate influence to maintain power in the face of questionable popularity.

Collectively, the pending Provincial Powers Act and Elections Law have the potential to make great political headway for Iraqi stability and reconciliation. But the rejection of the Powers Act has thrown progress in this area into significant doubt. Ideally, the parliament will quickly resolve the disputed articles, or at least press ahead with vital provincial elections before the end of the year. Despite the challenging deadline, the prime minister’s office is drafting the Elections Law, and logistical preparations are under way. And while the long-term disposition of provincial and federal power-sharing will undergo metamorphosis after the recent approval and rejection of the Provincial Powers Act, its eventual passage can solidify political outlets for those formerly inclined to civil war or insurgency by codyifing a significant degree of local self-determination. Officials also believe that official decentralization of responsibility could further streamline the country’s reconstruction and security efforts.

A burst of legislative progress   with caveats

While Iraq’s political progress is criticized by many Western political observers in relation to official benchmarks outlined by the Bush Administration and Congress, legislation has begun moving forward, though it often deals with complexities antithetical to quick resolution. In addition, Iraqi lawmakers tend to shun Western-imposed timetables for a variety of reasons, including a sometimes prideful sense of self-determination, the unpredictable process of ethno-sectarian and political compromise, and the practical belief that complex negotiations on long-term solutions should not be rushed to provide short-term political benefit for the US and others. While these attitudes frustrate some Western advisers, others accept and even encourage independence while facilitating progress, and stress the importance of Iraqi solutions to Iraqi problems.

In the end, the stability of Iraq hinges on the maintenance of recent legislative momentum, including: a successful revision of the Provincial Powers Act, crucial provincial elections held before the end of 2008, and the relatively fair, nonsectarian implementation of the brand new laws on amnesty and de-Baathification.

Kirk Sowell of Arab World Analysis contributed to this report.

Tags: Iraq