Arato Guest Editorial On Election

Arato Guest Editorial on the Election

Election, Government Formation and the Question of Historic Compromise in Iraq

Andrew Arato

“In the midst of the great noise of December 15, 2005 the electoral outcome is rather predictable, within a small range. Not so government formation where even small differences in electoral results could make a huge difference, and where mistakes in the drafting of the supposedly permanent constitution may present very unusual new difficulties. As a result, the chances of a tri-partite historical compromise, for which a small window was opened in the last days before the constitutional referendum of October 15, 2005 remain rather remote, though not impossible.

i.

The electoral outcome is largely, but not completely, predictable on the bases of the referendum of October 15 which exhibited remarkably disciplined voting on the part of the three main constituencies: Shi’ite Arab, Kurd, and Sunni Arab. (For the results see the website of the Independent Electoral Commission of Iraq). Now of course there are more choices than a mere yes/no, and there is a very different electoral mechanism. Going into the election, the main unknown was how many Shi’ite and Sunni voters would vote for the Allawi party, The Iraqi National List (No. 731). To a lesser extent the votes of the Chalabi group, the Iraqi National Congress List (No. 569) and the Saleh al-Mutlah Sunni group, the Iraqi Front for National Dialogue List (No. 667) were also unknown, but these would have mattered paradoxically only if they were so small as to take away votes from their natural allies without earning seats on their own.

As to the electoral system, it is on the whole a passive one that will increase the seat:vote ratio of the bigger parties but only slightly. What is not obvious about this system of mainly but not exclusively provincial lists is that it remains in small part turnout dependent and this adds an element of uncertainty. The system is not turnout dependent in homogeneous provinces, but only in ethnically mixed ones in the sense that if one group turns out more heavily than an other, it will get a larger proportion of that provincial list than its demographic weight would indicate. And the national compensational list of 45 votes is explicitly turnout dependent, seeking first to compensate those who get no provincial seats, and secondly to bring provincial ratios of parties closer to the national vote of the parties, a figure that is based on the turnout.

With this said, turnout seems to have been high also in the Sunni areas. This was so not because the Sunnis are choosing ballots over bullets as widely said, but because the insurrection itself has chosen to use both ballots and bullets, as Patrick Cockburn recently remarked in a fine interview in New Left Review. Thus there was both high political encouragement for Sunni voters and little violence to deter them. In other words, turn out dependence can after all be discounted as a factor this time around. Accordingly, keeping in mind the possibility that the secular Allawi list can indeed take Sunni votes, the main Sunni coalition grouping, the Iraqi Accordance Front (List. No. 618) and the Mutlak list together could get as many as 20% of the seats (55 seats), but certainly 45-50 seats. Support for the latter would be an interesting indication of the strength of more radical Sunnis, but even if relatively high it would not effect the overall-all result . . .

With respect to the election of last January, the Kurds will go down most dramatically. Their numbers are very easy to estimate on the bases of the referendum results: the Kurdistan Coalition List (730) will get all of the seats of three provinces, plus the majority of Kirkuk (Ta’mim) and big minority of Nineveh, altogether 20% of the seats which is a 7 % drop with respect to last January. The biggest party, the Shi’ite United Iraqi Alliance (No.555) may have dropped seats, too, because of the Sunni share: 40-45% seems plausible . . . All these percentages should not add up to a hundred because smaller parties will get some seats, mainly through the national list, the provincial thresholds for a seat being too high. How many no one can predict, and the combined effect could be important, under some circumstances.

ii.

The range of this prediction is small but the possible differences are significant, because of the issue of government formation. The makers of the new constitution wished to avoid the highly consensual requirements for government formation of the TAL, and this time around decreed that the president of the republic must assign government formation to the largest parliamentary grouping (art. 75; old art.73 ) The president to be sure was to be elected by 2/3 as was the Presidential Council of the TAL, but it was provided that if this fails, in a second round there is a run-off between two candidates decided by plurality only. (art. 69; old art. 67)

The problem is, however, that for reasons having to do ultimately with the unresolved federalism problem, at the last minute the 3 person Presidential Council of the TAL was revived for just the 4 years of this parliamentary period, to be elected on a single slate by 2/3. (art. 137; old art.134) And here, the drafters forgot or deliberately omitted to include the fail-safe mechanism in case this high threshold cannot be met. What happens then nobody knows; there are no provisions for the eventuality. Thus, a great deal will depend on who, i.e. what possible coalitions have 2/3 after the seats are distributed, and conversely, whether there is a grouping with over 1/3 of the seats that wishes to block government formation by stopping the formation of a Presidency Council, since there is no other way of naming a prime minister than by that Council. The issue is all the more important, because, in contrast to the old Transitional Administrative Law, each member of the Presidential Council, rather than only the council as a whole, will have a veto over all legislation except issues of federalism. (art. 137 5th clause a)

iii.

There are then two major possible electoral outcomes, one that gives a potentially narrow coalition that excludes some major political forces the ability to elect a Presidency Council, and one in which there is no such a grouping and where there are only important veto blocks capable of stopping the formation of different types of narrow based government. No narrowly based government is possible without the participation of the Shi’ite religious list the UIA. Its most likely partners would be the Kurdistan Coalition list once again, in spite of increasing irritation between their leaders.

While there are different combinations possible that would produce a blocking minority, the most likely candidate for that role is an Allawi-Sunni combination. These options are worth examining from the double point of view of government formation, and the chances of a historical compromise among the three major groups. Constitutionally the latter would require negotiating a package of amendments in the spirit of the last minute agreement with the Iraqi Islamic Party, just before the referendum of October 15. It is of course absurd to assume that such a package could be negotiated merely by a new constitutional committee, in the face of opposition by the government that is to be formed. The government itself has to want the agreement before it is negotiated, and then passed by the National Assembly (by absolute majority, not 2/3, pace Dexter Filkins and John Burns of the NY Times!) which it will control.

Not all possible governments that may emerge are equally good candidates for this role, even given the intense American pressure supporting a better deal for the Sunni. If the current coalition of the Kurdistan List and the UIA receives over 2/3 of the seats, there are two possibilities: either they will again form government together or the Kurds will insist on a national, broad based coalition. Coalition theory tells us that the former is much more likely, because partners do not like to divide important patronage and powers among any more members than necessary. The specifically Iraqi reasons why the re-emergence of a Shi’ite Kurd coalition is likely if they have the votes converge with the ones that indicate that under such a government the likelihood of a generous deal for the Sunni or for secular forces will be small.

While the U.S. Government now pushes in one direction (for a big change the right one, one of compromise), Iran evidently pushes in the other. The economic advantages of ethnically based regionalism must seem very enticing for the two partners. The highly influential American advisers of the Kurds also seem to consistently push in the direction of Iraq’s break-up, and they are not sufficiently balanced by remarkable Kurdish leaders like Mahmoud Othman. The latter seems to realize the importance of a fair deal for the Sunni, and may already see the dangers for the Kurds of a Shi’ite mega-state in the South that would control Baghdad as well. But the traditional fears of Sunni authoritarianism acting through a centralized state may outweigh these, and it is this idea that the American advisers reinforce, as Peter Galbraiths writings repeatedly indicate. As to the matter of secularism, the Kurds will fight only if secular rights in Kurdistan could be endangered, and there is no question of this.

Matters would be different if an Allawi-Sunni combination, assuming that the two lists could act together, could block government formation unless they received significant guarantees. Then there would be a strong rationale for the building of a National Unity Government, and the Kurds may wind up loosening their links to allies who appear too intransigent. During the formation of such a government of national unity, the basic outline of a constitutional amendment package could be negotiated and the Sunni would be well situated to push provincial federalism, while the Allawi group could concentrate on secular issues. The changes pushed by either would still be limited by the potential veto of 2/3 of the voters of three provinces in a referendum required to pass the package of amendments. But some changes could very well pass, since there is new openness on the side of the Shi’ites too to renegotiate at least some features of the constitutional framework as indicated by Moqtada al Sadr’s so-called “Pact of Honor” (Gilbert Achkar in Informed Comment December 9) as well as Kanan Makiya’s recent op ed in the NY Times (“Present at the Disintegration” December 11) both of which are willing to suspend the plans for ethnically based regional “federalism.”

Much depends therefore on how the vote turns out, and whether or not a result that puts an end to the current coalition is allowed to emerge at all. Under that best case scenario pointing to the option of a Government of National Unity there would also be admittedly the possibility of total paralysis, because there would beat least two veto blocks capable of interfering with government formation by not allowing the creation of a Presidency Council except on their own terms. The problem is an artifact of bringing a part of the TAL into the new constitution, by careless and hurried drafting, without providing for a failsafe mechanism. If the Allawi-Sunni combination had the veto power in other words to force the formation of a National Unity Government supported by the Americans, so would the UIA led by SCIRI and supported by Iran to block it. At the very least this would mean that in difficult negotiations the offer of the prime minister’s position to SCIRI is unavoidable if there is to be a National Unity Government. The constitution in any case indicates that the largest party must get the first offer from whoever is in the Presidency Council. What SCIRI and the Badr Organization must not have is the Ministry of Interior for obvious reasons.

Thus, assuming even the right numbers, negotiating a historical compromise will involve passing the thresholds of choosing a consensual Presidency Council, building a broad based government, agreeing on a serious package of constitutional amendments where each side gives up something important, and passing these in a parliamentary vote (this time they must actually vote!) and finally a new referendum. Can all this happen if the occupation is not gradually (i.e within a 6 month period) dismantled as part of the process, as the moderate Sunni demand, and, correspondingly, if the insurrection is not sufficiently diminished to make a deal with the Sunni worthwhile for their earlier antagonists?

Probably not. And these two desiderata are highly interdependent. In fact the continuation of an occupation without limits may very well be a reason why the Allawi and Sunni lists that have very different relations to the Americans could not act together, the assumption here for a positive scenario, even if they had a good enough electoral result (and the electoral results were not falsified, the Sunni elected representatives were not debaathified and so on.) The American occupiers are thus in a contradictory position. It is in their interest to produce a Sunni –Allawi combination capable of forcing the creation of a National Unity Government. But by their refusal to consider the dismantling of the occupation, they may be the main reason why such a combination will not emerge. But in that case, the insurrection will not be split, and Iran will get the prize.

Andrew Arato
New York
December 16, 2005″

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