Truly judicial issues that remain connected to the formation of the second Maliki government are firstly a number of unconstitutional replacements of deputies who went on to become ministers, and, secondly, the unconstitutional use of past members of the presidency council (Adel Abd al-Mahdi and Tareq al-Hashemi) in a new role as temporary vice-presidents for the ordinary president without any parliamentary approval. (Talabani says he has issued an order for them to “stay in their jobs” but he has no constitutional authority to do so and in any case the “deputy of the president” and the “deputy of the president in the presidential council” are two completely different jobs that have no relationship to each other.*) It should be added that within the cluster of cases relating to replacement deputies one can make a similar sub-typology to distinguish between cases that are truly within the judicial and constitutional sphere (which relate mainly to changing the governorate of a deputy during the replacement), and those that are not strictly speaking against the law on replacement of candidate but instead relate to the number of votes obtained by a candidate under the open-list system. The latter cannot be challenged before the federal supreme court even though some of these cases clearly do involve deputies who received a miniscule number of personal votes and as such constitute an insult to the Iraqi electorate, if nothing else.
In any case, even if this second group of truly judicial/constitutional cases may offer a more promising avenue for criticising the seemingly endemic cronyism of Iraq’s new political system, it is unclear whether the federal supreme court would be up to the challenge of tackling any such cases in a mature fashion. Indeed, in the case of the deputy replacements it is unclear who has the right to mount a challenge within thirty days of the parliamentary ruling on the issue – the constitution just establishes in article 52 that such a right at least exists. So far at least, despite growing popular unrest across the country, there are worringly few signs that the Iraqi political elite is beginning to realise that the protests are not only about local councils and governors, but also about the way politicians perform at the national level in Baghdad. Perhaps someone who can rouse them from their sleep is the Grand Ayatollah Ali al-Sistani? For the second time in a few weeks he has reportedly sided with those demonstrations that Maliki blamed on “Baathists”: First he expressed sympathy for the protests in a public announcement (bayan) dated 26 February; today there are reports that he refuses to meet with any government officials pending an improvement in the general sitution.
*Footnote: The legal election of Abd al-Mahdi and Hashemi, for whom there is political support in parliament, is held up mainly because of the continued candidacy of the unpopular Khudayr al-Khuzai of Maliki’s Shiite alliance.
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