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.
The “gigantic loophole” in the election for President of the Republic calls for a second election when the first doesn’t produce the required majority. That has it’s own unique benefits.
A “national unity” government consisting of the leaders of all the major parties in Iraq makes me think of a news clip I saw a few years ago of fist fights that broke out among government officials in some asian country.
Seed planted by Barry — 18 December 2005 @ 01:02
I’m glad someone else here notices that potential hazards of a majoritarian system in a placel ike Iraq — for now, anyway. We in the West tend to see democracy through our own experience. I wrote a paper just a little while back about adopting aspects of the Lebanese consociational system for the Iraqi constitution. While a national unity government including just about everyone would lead to a standstill, which no Iraqi wants, a feature like 1/3 veto might be good for making sure a majoritarian government doesn’t act out against a particular group.
Seed planted by Robert Mayer — 18 December 2005 @ 22:01
Preliminary Vote Tallies from Iraq
In the Iraqi context a pure majoritarian system is going to spell trouble. As I wrote at TCS back in June of 2004: Any new government must take into consideration these cleavages, and especially must avoid any situation where one group is allowed to have substantial power over the others. Democracy, depending on its design, can create a situation where the majority can tyrannize the minority (or, indeed, vice versa) — such conditions must be avoided, or breakdown of the new state will result.
Scion grafted by PoliBlog: A Rough Draft of my Thoughts — 20 December 2005 @ 07:15
I’m trying to understand the government formation process and came across this explanation on Juan Cole’s Informed Comment by Andrew Amato of the New School. He points to a distinction between the general rule you’ve outlined for selecting the presidential council (2/3 on first round, majority on 2nd) with a special rule for the first four years. Let me quote the relevant section of his post:
“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)”
Seed planted by nadehzda — 22 December 2005 @ 09:41
Nadezhda (quoting Amato from Juan Cole’s blog) is right that the provisions for a three-person Presidency Council are in effect only for the first term (4 years). However, I think it is ambiguous whether the second part of Article 134, in the transitory provisions of the constitution, override the previous provisions on election of the Council. The first part of Art. 134 says:
The second part then says that the this Council
The constitutional question, then, would be: Do these transitory articles override or amplify previous provisions? That is, does the second part of Article 134 (redefining “President” as “Presidential Council” in all previous articles) change both provisions of Article 67 (thus overriding any qualifications that are in Article 67 but not in Article 134), or only the one that contains the word, “President of the Republic” (thus amplifying only those portions of Article 67 that are specifically addressed by Article 134).
Article 67 reads, in full:
The fact that there is a full stop after “…by two thirds majority of its members” in both the first part of Article 67 and in the modifying paragraph of Article 134, coupled with the fact that the words “President of the Republic” do not appear in the second part of Article 67, leads me to believe that the second part of Article 67 (allowing the parliament to pick the President/Presidency Council by majority if no candidate initially obtains 2/3) is still in effect, notwithstanding the absence of such language in Article 134.
Thus, I do not see the provision for election of the Presidency having changed, aside from its being converted into a council elected on a single slate of three persons. But I agree it is ambiguous, and thus a potential recipe for conflict.
I would also add that I hope I am wrong and Amato is right, because with the UIA alone possibly very close to 50% of the parliament, it is quite important that the provisions of the constitution not allow the UIA to hold out and elect a full three-person slate of its preference (after having bargained with some small factions of the parliament to make up their own small shortfall from 50%+1 of the seats).
That is, I would maintain that the threat to Iraq’s democracy from, say, a Sunni bloc or Allawi holding out for compromise to get a needed 2/3 vote is far less than the threat from the UIA being able to resist such compromise and force through its own preferred choice.
Finally, even if indeed it does require 2/3 (with no second chance by majority) to elect the Presidency Council, it remains the case that the more important executive body is the cabinet, and once the Presidency Council is formed, it must name the leader of the largest bloc in parliament to form a cabinet. The cabinet takes office by vote of an absolute majority (50%+1) of the parliament, according to Article 73.
Seed planted by MShugart — 22 December 2005 @ 11:12
Thanks for your clarification. Guess we’ll have to wait and see how the Iraqis themselves interpret the Presidential Council selection rules and whether there’s a consensus interpretation of the provision in Arabic.
One further item of clarification which relates to the power of the cabinet and its relationship with the legislature. Does a no-confidence vote also require a simple absolute majority?
I ask because one combination, once the government is formed and the ministries are parcelled out (principally to the UIA of which Sadr is a part), the coalitions on specific points of contention (e.g. withdrawal of US forces) could play out somewhat differently. Sadr has been nursing connections with the Sunnis on that issue for some time, whereas on that issue the Sunnis and Allawi are far apart.
Sadr is also far from enthusiastic about an autonomous 9-province southern region, both because it leaves Baghdad in a bad position and dilutes his power in a couple of the southern provinces where he’s stronger than SCIRI/Dawa.
Seed planted by nadehzda — 22 December 2005 @ 13:36
Nadezhda raises some very good points about the multidimensionality of interparty divisions in Iraq.
No confidence votes require an absolute majority (50%+1) of the members of the lower house (at the moment, the only house) of parliament–the same as the majority required to install it in the first place. In this sense, the constitution is strictly parliamentary. (The one sense in which it is not is the 3/5 requirement to override the Presidency Council’s veto of a bill, which may be exercised by any one member of the Presidency alone.)
A request for a no-confidence vote may be initiated by the Presidency Council (which would mean it would have to be unanimous by the three members, so it is unlikely to happen) or by 1/5 of the members of the assembly.
By the way, the provision in Article 67 for election of the President (Presidency Council), in the event there is not a 2/3 majority at the first try, speaks of “the highest number of votes” being sufficient. In other words, it need not even be an absolute majority, if some members were to vote for neither of the two slates that remain in contention at that point.
Seed planted by MShugart — 22 December 2005 @ 17:14
The one sense in which it is not is the 3/5 requirement to override the Presidency Council’s veto of a bill, which may be exercised by any one member of the Presidency alone
Jeez, tribunes?
Seed planted by Jonathan Edelstein — 22 December 2005 @ 17:54
Iraq: Shiite Islamist Alliance only ten seats short of majority
By being so close to a majority, the Islamist alliance will be able to form a government with only minor consessions to other groups.
Scion grafted by Fruits and Votes — 20 January 2006 @ 17:26
What if there is no ‘winner’? Minority governments in a half century of Canadian elections
there is no provision [in Canada] granting the plurality party a right to make the first effort to form a government (as there is in some other country’s constitutions, notably Iraq’s…
Scion grafted by Fruits and Votes — 25 January 2006 @ 12:26
Italian presidency vote
The Italian electoral college takes three ballots in which a two-thirds majority is needed. If no candidate has obtained that threshold by then, the majority prevails. Many parliamentary systems have these kinds of procedures for their head of state, aimed at securing a broadly acceptable choice, but ultimately having a means to prevent the default being no one is elected. (Compare the very similar rule in Iraq’s new constitution.)
Scion grafted by Fruits and Votes — 09 May 2006 @ 10:04