There seems to be some confusion about how the next Iraqi government will be formed. For instance, an article in the New York Times from December 15 implies that a “national unity” government will be required, due to super-majority provisions in the constitution. Notwithstanding that a national unity (or “grand”) coalition is precisely what the Iraqi situation cries out for, the constitution allows a majority of the just-elected parliament to appoint the government. I already discussed, earlier today, how these provisions will not allow the Sunni Arabs apprecialy more influence despite their participation, and why the Sunni guerrilla movements are thus likely to continue–or expand–their armed pressure on the government. Here I want to address the constutional and electoral-system provisions in Iraq directly.
From the NYT:
The formation of the next Iraqi government is expected to be further delayed by the requirement of a two-thirds majority vote for the election of a “presidential council” of a president and two vice presidents that will nominate a prime minister for parliamentary approval. In practice, that means that any Iraqi leader hoping to form a government will effectively need a supermajority.
This is not right. Article 67 of the Iraqi constitution has two paragraphs on how the Council of Representatives (the parliament just elected) shall select the President of the Republic (which is indeed redefined in the transitory provisions as a three-person council elected on a single slate):
First: The Council of Representatives shall elect, from among the nominees, the President of the Republic by a two-thirds majority of its members.
So far, so good. But then there is a gigantic loophole:
Second: If any of the candidates does not receive the required majority vote then the two candidates who received the highest number of votes shall compete and the one who receives the highest number of votes in the second election shall be declared as President.
So, it takes two thirds unless the majority does not want it to take two thirds.
But even this has little to do with forming a government, which actually means the prime minister and cabinet. Article 73:
First: The President of the Republic shall name the nominee of the Council of Representatives bloc with the largest number to form the Cabinet within fifteen days from the date of the election of the president of the republic.
In other word, there is a mandatory first crack at forming a government given to the alliance that has obtained the most seats in parliament (otherwise known as the UIA)–unless perhaps an alternative bloc has already formed by that point that is larger (which is unlikely, as I noted in “Guerrillas and Elections” earlier today).
A later provision of the Article 73 notes that the prime minister is deemed to have the confidence of parliament once his ministers and his program of government have been approved by “an absolute majority.”
In other words, there is no super-majority requirement to form a government in Iraq.
Not that it would be a bad thing if there were, contrary to the claim of the next paragraph of the above-linked NYT article:
One possibility, if no Iraqi leader can cobble together enough votes, is a “national unity” government consisting of the leaders of all the major parties. Such an outcome is unlikely and it is not preferred by many Iraqi leaders, who fear that such a government would be too fractious to carry out decisive action.
In other contexts, a government incable of carrying out decisive action is one known as being checked against the tyranny of the majority. That is, a national unity (or “grand”) coalition would be exactly what the divided nature of Iraqi society calls for. But while such a government is indeed possible if the leaders decide it is in their interests (perhaps to restrain the threat of civil war), there is no constitutional provision that requires it or makes it particularly likely. In fact, as I have been saying in this space since August (see any of several Iraq posts), this constitution is actually quite majoritarian.
I learned about this NYT article from Outside the Beltway, and I am quite grateful to James for calling it to his readers’ attention. However, James follows up the article’s remark about a national unity government with the following observation:
Such is the way with proportional representation schemes. The framers of this constitution clearly needed more input from–or to better heed–political scientists. If they insisted on proportional representation, which leads to a ridiculous number of political parties and constant jostling to put together and maintain a governing coalition, then they might have borrowed the double ballot system from France. Under that scheme, there is an election wherein people can vote for their little fractious party followed, if none win a majority, with a runoff between the two largest vote getters. That creates, in effect, a pre-election coalition that is much more stable.
In that quoted passage, James seems to be implying that the two-round system in single-member districts (the French system) is part of the broader family of proportional representation (PR), which it manifestly is not. But that aside, there are a couple of points to keep in mind here in comparing the suitability of some sort of candidate-and-district-based system (like that of France, or the US) versus proportional representation:
(1) Pre-election coalitions are by no means precluded by proportional representation, and indeed have occurred in Iraq. The Kurdish list is a pre-election coalition of two main and a few smaller Kurdish parties. The UIA is a pre-election coalition of Dawa and SCIRI, among others. And so on. The claim that PR inevitably leads to fragmentation is belied by the actual Iraqi result last January, and is a common, but quite inaccurate, caricature of PR systems.
(2) A two-round system would have done two things, neither helpful for bringing Iraq together: generate a gross disproportionality of the result, inlcuding probably a very large majority of seats for the UIA; and, outside of regions dominated by the UIA or the Kurdish list, a severe fragmentation, as many local tribal-supported candidates would have run as independents or under the labels of small parties–because such a system rewards locally concentrated support. In other words, a two-round system would have exacerbated the worst feature of the assembly elected in January (independent of Sunni participation): dominance by the pre-election alliance that represents the Shiite-Islamist segment of the population.
Few political scientists would ever recommend a two-round system for legislative elections, as James seems to imply. Nonetheless, few would have recommended the system that was used in January–PR in a single nationwide district. What most political scientists would have recommened is PR with regional districts and national compensation–and that is what was indeed used this week.
Had the UIA’s component parties and the Kurdish alliance not already been “facts on the ground” in Iraq well before the January elections, I might have recommended (if asked, which I was not) SNTV in moderately sized districts (i.e. the Afghan system, but in far smaller districts than were used there), despite my usual disdain for SNTV. But with parties already existing, I do not feel there was much opportunity to establish a more candidate-based and regionalized system.
There was also a practical problem to using SNTV, plurality, or a two-round system: The fear candidates had of campaigning openly as individuals, given the security situation.
In short, while the electoral system chosen in Iraq is not ideal by any means, something broadly in the PR family was almost certainly most suitable to the conditions the country faced at the point at which the first elections were held. The fact that PR promotes coalitions is a valuable aspect of the system, and not a flaw. In fact, that the constitution does not go farther to restrain the parliamentary majority by mandating power-sharing (via super-majority provisions, such as those the Times reporter saw, but that are not actually there) is a potential Achilles heal of the system.