Transitional state

• Last Updated: November 26. 2009 12:11PM UAE / November 26. 2009 8:11AM GMT

Hundreds of Iraqis take to the streets of Basra on November 20 to protest against Vice President Tareq al Hashemi’s veto of the electoral law. Essam al Sudani / AFP

The dispute over a new electoral law, Michael W Hanna writes, is a reminder that unresolved political questions pose the greatest challenge to the future of Iraq.

When the passage, at long last, of an Iraqi electoral law was announced on November 8, many observers breathed a sigh of relief – none more so than the United States, reassured that its scheduled drawdown of troops could proceed as planned. Washington had essentially made successful national elections a prerequisite for the withdrawal of forces, and this could not go forward without the ratification of a new electoral framework.

The jubilation was short-lived: 10 days later, Iraq’s Sunni vice-president, Tareq al Hashemi, vetoed the legislation. Shortly thereafter a Shiite-Kurdish parliamentary alliance passed a retaliatory bill that would deprive Sunnis of seats in the legislature, almost certainly guaranteeing another veto of the legislation, unless a face-saving compromise can be constructed on the basis of the vagaries of the existing law or forced upon the parties through possible Federal Supreme Court intervention. While it’s better to see the reappearance of overt ethno-sectarian struggles in the parliament than among armed gangs in the streets, the present crisis is a reminder that Iraq’s divisions, while certainly muted and more nuanced than in the recent past, are still potent.

Thus far, Iraq’s competing political, ethnic, and sectarian groups have been unable to resolve their fundamental disagreements over the nature and shape of the Iraqi state. The arduous process of state-formation, which was essentially left unfinished by the constitution, will continue under a new government and new parliament after the elections eventually take place. But in many respects, the best possible outcome for Iraq at this transitional stage is a messy and fitful muddling through that averts broad-based violence as Iraqis continue to acclimatise themselves to a new social and political order.

The drafting of the Iraqi constitution – which was itself the product of an unrepresentative political order and a fractious, fraying social fabric that collapsed amid sectarian bloodletting – produced a document that left major issues unresolved, including the disposition of Kirkuk and other disputed territories. These and other contentious matters were supposed to be addressed at a later date or through future legislation – but the parliament remains a poor forum in which to address them, and there is no clear process to deal with complicated and divisive political and constitutional questions, which will, in the end, have to be settled by extra-parliamentary negotiations.

It is not the case – as some have suggested – that the persistence of these unresolved disputes means Iraq is inevitably fated to descend into widespread ethnic or sectarian warfare. The ongoing violence is distressing – and the civilian death toll in Iraq continues to outpace that of Afghanistan. But the recent spectacular terrorist attacks, which thrust Iraq back into the headlines, suggest that while the remnants of the insurgency can still inflict serious casualties they are at present incapable of altering the country’s strategic realities or completely discrediting the political process.

Political questions like those that remain in Iraq – over the fundamental distribution of power and representation – have preoccupied other states for decades, and they have not always been resolved peacefully; the fragile balance of power in Lebanon comes quickly to mind. In the United States, the battle over federalism and the distribution of power – which once led to civil war – persists more than a century later, and remains the subject of never-ending constitutional litigation. In this sense, expectations that a simple political resolution of Iraq’s fundamental divides could be brokered easily have led observers to cast the missteps and inertia of the Iraqi political process as a simple sign of the system’s inherent dysfunction.

But even this broader perspective cannot obscure the facts on the ground: the foundations of the state remain incomplete, fragile and weak. Iraq may not have the luxury of decades to produce a workable settlement, and the continuing inability to resolve the core disputes over power, resources and territory may in fact be a harbinger of impending disaster.

The distraction of ongoing constitutional and territorial disputes, furthermore, bodes ill for Baghdad’s ability to address basic governance and other more immediate problems, including the resettlement of millions of refugees and internally displaced persons. Most of these are Sunnis, and their successful reintegration and assimilation will be necessary to avert further sectarian tension and prevent the emergence of potential new insurgencies.

At present, however, there are few signs that these disputes are nearing resolution. The fight over the disposition of Kirkuk, which animated and distorted the recent electoral law impasse, suggests that the parties to such disputes will continue to create facts on the ground so long as they lack confidence in any alternative process to reach a settlement. The various Kurdish and anti-Kurdish forces have seen each electoral contest as a marker on the path to establishing the city’s final status and an opportunity to set potentially significant precedents.

For the matter to be resolved peacefully in the future, a referendum, a step mandated by the constitution but left unimplemented by the parliament, will almost certainly only be employed as a final step to confirm a political agreement on the final disposition of disputed territories among Iraq’s national leaders. As of yet, while the United Nations Assistance Mission for Iraq, with the quiet support of the United States, has laid out possible scenarios for resolving the current impasse, there have been no serious national efforts to move forward on this contentious bundle of issues, which also involves control over oil and the relative powers of the Kurdistan Regional Government.

The initial wrangling over the election law was shadowed by the possibility of a veto by the Presidency Council, particularly the Iraqi president, Jalal Talabani, himself a Kurd who previously led the rejection of the first iteration of the provincial elections law due to its framework for dealing with elections in Kirkuk. As part of the transitional measures incorporated in the 2005 Constitution, a Presidency Council composed of the president and his two vice-presidents was endowed with the authority to veto legislation through the requirement that legislation be given unanimous consent by the council. Following successive vetoes, the parliament could only ratify legislation through a three-fifths non-appealable majority vote.

In practice, the Presidency Council, which is composed of a Kurd, a Shiite and a Sunni, serves as a tripartite communal backstop to ensure that controversial legislation will be difficult to pass without a consensus among the country’s ethno-sectarian leaders. Although there are indications that the Presidency Council might be extended for a further legislative term, if the parliament does not take action soon these transitional consensual mechanisms will expire when the new parliament is seated. At such time, the constitution will revert to its standard provisions, and the president will assume a more limited role.

Regardless of when this transition takes place, the role of the president will almost certainly be the subject of immensely consequential constitutional interpretation by the Federal Supreme Court, as the language of the constitution leaves the actual powers of the Presidency completely opaque, with no clear basis upon which to decipher whether a presidential veto will continue to be a facet of the Iraqi legislative process. In this sense, the very basics of future governance in Iraq remain in large part a mystery. Ironically, the current rumblings in Baghdad with respect to the extension of the mandate of the Presidency Council are a direct outgrowth of the parliament’s lack of action on the establishment of an upper house of parliament, which was defined in the Iraqi constitution but whose existence and powers were supposed to be determined by some future legislation.

These future structural changes portend much farther reaching consequences. While there has been a great deal of frustration with the awkward and protracted consensual approach dictated by Iraq’s transitional framework, the country will embark upon a potentially destabilising path when the parliament will be free to govern on a majority-vote basis. While paralysis has allowed problems to fester, actual political progress might be even more controversial. With a bevy of key questions yet to be tackled, Iraq’s leaders will be tempted to eschew the often unwieldy government-by-consensus model. While democratically unassailable, this development would certainly test the bonds of the fragile Iraqi state. The prospect of such sweeping political action at a time when aspects of the foundational character of the state have yet to be agreed upon is precisely the type of systemic shock that could trigger violence.

The eventual shift away from consensual politics – which will inevitably produce clear winners and losers – will pose a serious test for the maturity of Iraq’s political classes. In the meantime, the country awaits the emergence of a sustainable process that will negotiate and define the nature of the state and its functions, one that can resolve Iraq’s long-term disputes by political means before the competing sides resort to more violent measures.

Michael Wahid Hanna is a fellow at the Century Foundation in New York.