Anti-Corruption Measure Sparks Constitutional Confusion in Iraq

The following article was published by Reidar Visser, an historian of Iraq educated at the University of Oxford and currently based at the Norwegian Institute of International Affairs. It is reproduced here with the author’s permission. The opinions expressed are those of the author, and do not necessarily reflect the views of Iraq Business News.

The decision by the Iraqi parliament on 18 April to cancel a clause of an old law dating from 1971 has led to a public debate about presidential prerogatives that reveals just how immature and shaky Iraq’s post-2003 system of government is.

The core of the matter relates to the cancellation by parliament of clause 136b in the Baath-era law on the organisation of the courts from 1971 that offered civil servants a degree of of immunity from prosecution in matters related to government service.

The measure had been promptly removed by Paul Bremer in 2003 but was reintroduced during the time of Ayad Allawi’s interim government in 2004. In removing the clause, Iraqi parliamentarians made reference to the ways in which it had enabled government officials to protect themselves against accusations of corruption.

The substantive issues at hand could merit a separate discussion. However, in terms of constitutional implications, it is the reactions to the passage of this act of legislation that are most important as indicators of the maturity or otherwise of Iraq’s post-2003 political system. It has been revealed that after the law was passed on 18 April, a letter was sent on 26 April from the Iraqi government to the Iraqi president, Jalal Talabani, asking him to take “the necessary constitutional measures to oppose the parliamentary decision to annul clause 136b”.

The problem, of course, is that no such “constitutional measures” exist! After the transitional presidency council was abolished in November 2010, the (ordinary) president no longer has any specified veto power since laws issued by parliament automatically come into force after 15 days whether the president opts to formally sign them or not. Had a presidential veto power in fact existed there would have been no need to specify one in the final transitional clauses of the constitution which created the temporary presidency council for the 2005-2010 period. Also, it would not have been logical for the Kurds to seek an extension of the collective presidency council (this was one of their 19 demands for joining the second Maliki government) if in fact the presidency alredy enjoyed veto power, since everyone expected that Talabani would become president anyway at the time when they presented their demands.

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