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The Law on the Powers of Governorates Not Organised in a Region: Washington’s “Moderate” Allies Show Some Not-So-Moderate Tendencies

By Reidar Visser (www.historiae.org)

11 February 2008

Whenever Iraqi politics becomes difficult to classify according to the ethno-sectarian mindset preferred by most Western commentators, interest in what is going on in Baghdad seems to dwindle. Little wonder, then, that for the past few weeks, somewhat esoteric news items (like a visit to Iraq by Angelina Jolie) have dominated press reports from Iraq. The two truly significant developments during the past month have received less coverage: the attempts to agree on a general budget, as well as efforts to pass a law on the powers of governorates nor organised in a [federal] region.

The governorates law is of particular importance because it directly relates to the fundamental struggle between centralist and decentralist forces in Iraq – and, more generally, to the debate about the ideal structure of Iraq’s future democracy. But at the same time it has the potential to become a particularly thorny piece of legislation, due to its intimate links to one of the most fundamental contradictions in the 2005 constitution. On the one hand, the constitution’s original article 111 (now article 115) unequivocally puts federal regions and governorates that have not opted for a federal status on a one hundred percent equal footing: they have all the powers that have not specifically been given to the central government. Accordingly, any law that gives a governorate less power than a federal region could be challenged for being unconstitutional. The problem is, however, that the constitution itself goes quite far in the direction of violating precisely this principle. The whole idea of the concept of residual powers in a federal system is that only a single specification of powers is needed – either those of the central government, or those of the provincial entities. And in the case of Iraq, the dominant focus in the charter is clearly on specifying the (relatively few) powers of the central government. Anomalously, however, the document then enumerates a number of specified powers for federal regions and governorates not organised into a federal region, where certain privileges of the federal regions (in particular the right to organise internal security forces, as well as the specific mention of a legislative power) are not explicitly repeated with respect to the governorates (there is however mention of the concept of “laws issued by the non-federated governorates”, which has to be seen as an implicit recognition of legislative authority). Despite considerable attempts in 2007 by UN staff to encourage a rethink on these issues during the process of constitutional revision, no measures to clear up the situation were included when the revision committee finished its report.

Regardless of these more theoretical problems, the law on the governorates has assumed considerable importance in Iraqi politics because it has become a focus of hope for many Iraqis who are uncomfortable with the new concept of federalism, and are hoping that the entire debate about federalism could be defused if the existing governorates were accorded properly defined powers that could create a middle ground between the excessive centralism of the past and the hyper-decentralisation of the 2005 constitution. If that kind of framework came to pass, federalism could well remain an exceptionalism in Iraq, limited to the Kurdistan region and, possibly, one or two governorates south of Baghdad (such as perhaps Basra and/or Najaf, the only Shiite-majority governorates to have shown a truly persistent interest in federalism so far). This would be in harmony with the explicit dualism on state structure in the 2005 constitution which Western “soft partition” proponents so often tend to overlook: federal and non-federal entities are supposed to coexist in the same polity, without any imperatives for other parts of Iraq to follow Kurdistan’s example.

Early drafts of the law that is currently being considered by parliament began appearing in the summer of 2007. In general, the law does not endeavour to resolve the issues related to distribution of power that were left unanswered in the constitution. For example, whether the governorates are allowed to follow the example of the federal regions and establish their own security agencies simply remains unclear, as does the question of whether the local government can legislate in areas of shared competencies with the central authorities such as health and education (on this latter point the constitution actually accords precedence to local laws whereas the current governorate law draft in a somewhat incongruous fashion stipulates that no local law shall contradict the constitution or federal laws). Similarly, the question of the right to impose taxes is not answered in a definitive way: taxes and “revenue from border crossings” can form part of governorate financial resources “as long as this is in harmony with the constitution and federal laws” – a vague formula that was probably chosen because a modest strengthening of the central government’s power to tax happens to be part of the proposed constitutional revision package that has currently stalled in the Iraqi parliament. Interestingly, there is a list of exceptions to the governor’s inspection powers which does not seem to square one hundred percent with the constitution: it includes some areas of shared competency (like education), but not all (for example, environmental agencies are not listed even though they are an area of shared power); this is paralleled in a concept of “senior positions” in the governorate to be under local control, defined as all director generals with the exception of university chancellors, judges and army commanders.

Instead, the law deals mostly with the procedures for forming local councils and the requirements for membership of these institutions, as well as the more limited competencies of the smaller subunits (i.e. below the governorate level, such as districts and sub-districts). Many of these regulations are unremarkable, although some would say that there is a certain elitist bias in the criteria for becoming a governorate council member (an age requirement of thirty years) or governor (age plus education requirement equivalent to a university degree) – possibly an attempt at avoiding local governorates becoming flooded by youth with little education, and therefore something that perhaps could be seen as discrimination by groups whose electorate consists exactly of that category of people, such as the Sadrists. On the other hand, the residence requirement for council membership (being born in the governorate, or having been a permanent resident for no less than ten years) will probably be welcomed in areas where there is resentment against the dominance by people from Iraq’s political and religious capitals (i.e. Baghdad and Najaf) and the phenomenon of exile dominance in Iraq’s politics since 2003 more generally. Where available drafts of the law really do seem to offer some substance is on the subject of hiring and firing of local staff. Here, real power is bestowed on the governor (who nominates candidates for all leading administrative positions in the governorate, inclusive top security agencies with the exception of the army), and the governorate council (which makes the selection on basis of an absolute majority). Historically, Baghdad’s dominance with regard to appointment of local government officials has been disliked in many of Iraq’s provinces, and if these new measures survive in the final version of the law they will no doubt go some way towards mollifying local discontent about the role of outsiders in local administration. However, at the same time, they could of course hamper the development of cohesive and professional state bureaucracies, if, as seems to be the case, also federal/central government agencies operating in the governorates are subject to these procedures of appointment.

Why is it taking so long to pass this important piece of legislation? During the repeated delays of the vote on the final package (a majority of the paragraphs have already been voted on), two areas of disagreement have been at the forefront. The first concerns the right of the parliament in Baghdad to sack a local governor by an absolute majority, a somewhat surprising relic of centralism in a document which otherwise seems aimed at giving real powers to the governorates. (There is at least one more exception to this general trend: the national assembly can also dissolve the local governorate council under certain extreme conditions.) On this issue, the anti-centralisation parties (the Kurdish parties as well as the Islamic Supreme Council of Iraq or ISCI) have objected to the potential for interference by Baghdad that is implicit in the current draft.

Unless ISCI is doing this for other ulterior reasons, their stance is both important and clarifying: during the constitutional revision process (where an Arab–Kurdish frontline at times has interrupted the traditional alliance between ISCI and the Kurds) as well as in the negotiations over the oil law (where a similar phenomenon occurred), one could get the impression that ISCI, despite its preference for a nine-governorate Shiite-dominated federal region, remained somewhat ambivalent about its own federal strategy, apparently wanting to retain the option of dominating the centre of all Iraq south of Kurdistan. In the draft oil law, especially, the central government actually remains a good deal stronger than what many commentators claim, and there is a clear attempt to draw a distinction between moderately strong federal entities on the one hand, and less powerful, more subjugated governorates not organised in a federal region on the other. Conversely, if its current position on the election of the governor is purely ideological (and there is much to support this interpretation), it would seem that ISCI has decisively joined the Kurds in combating any strengthening of the central government in Iraq, whether in relation to the governorates or vis-à-vis the federal entities. This echoes Abd al-Aziz al-Hakim’s speech in Najaf on 3 January, where he more explicitly than before criticised central government as a concept (his son Ammar has been more vocal in in extolling federalism as a principle of government), and perhaps sounded more “Kurdish” than ever before, in a way more Barzani than Sistani. This is significant because it suggests that the remaining forces of centralisation in the Maliki government – evident in repeated rumours that unspecified elements of the United Iraqi Alliance actually sought to strengthen the central government versus the governorates – must originate from outside ISCI (independents, Daawa), or at least from outside the Hakim family. But while it may be easy to sympathise with ISCI’s position on this issue because it now seems to be more coherent in terms of a decentralist ideology, from the point of view of the stability of Iraqi politics it still does seem somewhat questionable to use a Kurdish swing vote to hammer through a decentralisation arrangement for the Arab-majority parts of Iraq, especially in a context where most opinion polls actually tend to suggest a desire for re-centralisation on the part of the general population.

The second point of dispute regarding the law concerns the timing of provincial elections, and has received even less public attention. But in a context where the Iraqi parliament has suddenly stopped issuing its daily minutes and opposition parties (like the Iraqi Islamic Party) criticise “parties inside the Maliki government” for “deliberate obstruction aimed at avoiding elections” but dare not mention their name, one cannot help wonder whether this is in fact the key issue. Again, it is the alliance of Kurds and ISCI that is making itself felt, but this time in a manner that seems less ideological: they flatly reject the idea of any timeline for provincial elections being inserted in the law, arguing that it would simply be out of place and should form the focus of separate legislation to be adopted at a later stage. Plausible at that may be from a purely judicial point of view, it cannot escape mention that early provincial elections is something which Iraq observers almost universally tend to highlight as a step in the right direction for the country. Significantly, the challenge to the ISCI–Kurdish axis on this issue comes from the cross-sectarian alliance in parliament that the United States routinely overlooks in favour of its own “moderate” government partners, and includes parties like the (Shiite Islamist) Sadrists and Fadila, the (Sunni Islamist) Tawafuq and the (secular) Wifaq and Hiwar. Today, their “dangerous radicalism” is being expressed in a unified demand for a guarantee for local elections to be inserted in the governorates law (they complain that otherwise, the whole elections issue will tend to get further delayed), whereas Washington’s “moderate” partners (who greatly benefited from Sunni and Sadrist non-participation back in the 2005 elections) seem to be deliberately slow-moving over the elections issue.

Meanwhile, in Washington there seems to be growing polarisation between the Bush administration (which prefers to focus on declining US casualties instead of thorny political questions) and the Democrats (who seem happy to define America’s role in Iraq as a policeman guarding against al-Qaida and are apparently prepared to forget about issues of national reconciliation altogether). Western journalists inexplicably go on and on with nonsensical clichés about Sunnis and Shiites and Kurds quarrelling with each other (can they not at least step inside the Green-Zone parliament and listen to the proceedings for a while?) Against this backdrop, it would not be surprising if the dextrous politicians of ISCI, PUK and KDP were once more able to have it their way. “Rolling elections” has already been mentioned – perhaps the perfect euphemism in a context where the dominant US-sponsored Iraqi factions want to have elections in a few selected areas, but not everywhere?

For perceptive and judicious commentary on the current situation in Iraq, see

Iraq: Politics Unfrozen, Direction Still Unclear by Daniel Serwer and Rend al-Rahim, USIP

The Answer to Iraq's problems? by Safa A. Hussein, Iraq’s national security council

Jaafari Talks to the Resistance by Badger

 

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