By Stephen Wicken
Iraq’s prosecutor-general has requested legal action regarding to the ongoing absence of President Jalal Talabani. Debate over the unclear stipulations of the constitution may make the presidency a political bargaining chip as political blocs negotiate over governing coalitions following the provincial elections. Meanwhile, a renewed call for negotiations between moderate Sunni Arab protest representatives and the Maliki government has won some support, although significant obstacles remain in the forms of internal division and calls to insurgency.
Prosecutor-general reopens presidency question
The issue of executive power in Iraq was renewed this week when Iraqi Prosecutor-General Ghadanfar Hammud al-Jassim sent a letter to Parliamentary Speaker Osama al-Nujaifi asking Nujaifi to take legal action regarding President Jalal Talabani’s extended absence from Iraq. The prosecutor-general cited Article 72 of the Iraqi constitution, which states that if the presidency “becomes vacant for any reason, a new president shall be elected to complete the remaining period of the president’s term.” Talabani has been receiving medical treatment in Germany following a reported stroke on December 17, during which time he has not submitted his resignation. No previous attempt has been made to replace him even in an acting capacity, despite the stipulation in Article 75 of the constitution that the vice president should replace the president “in his absence.” To justify the question of its authority to pursue the matter, the prosecution referred to Article 1 of the law of the 1977 Law on Public Prosecution, which charges the state prosecution service with protecting “the system of the state, its security and its institutions, and to guarantee democracy and the higher interests of the people.” The implication of the reference to this law was that the extended absence of a working president threatens the functions of state; no suggestion was made as to why Talabani’s absence should be addressed now, nearly five months after his departure for Europe.
The letter immediately drew criticism from across Iraq’s political spectrum, and particularly from Talabani’s Patriotic Union of Kurdistan (PUK) party. PUK member Khalid Shwani, the chairman of the parliamentary legal committee, announced that his committee had reviewed the request and deemed it “unconstitutional and illegal.” Shwani questioned the prosecutor-general’s right to make the request, since Article 72 of the constitution refers to a presidential ‘vacancy’ rather than ‘absence.’ This highlights a central ambiguity on the issue: Article 72 refers to the presidency becoming “vacant;” Article 75 refers both to the president’s “absence” and “vacancy,” and stipulates that that the vice president should take over in either case. Shwani’s deputy, Sadrist Amir al-Kanani, agreed that the prosecution had no constitutional authority over the matter, while State of Law Alliance parliamentarian Khalid al-Attiyah called the prosecution’s request “premature.”
Mohsen Saadoun, vice president of the Kurdistan Alliance and a parliamentarian belonging to Iraqi Kurdistan President Massoud Barzani’s Kurdistan Democratic Party (KDP), also dismissed the prosecutor’s authority over the question. Saadoun argued that neither the prosecution nor the judiciary, which published the letter on its website, implying its support, possessed legislative or executive powers under the constitution, and therefore neither had authority over the question of the presidency. Iraqiyya MP Wahida al-Jumaili called the request “unconstitutional,” although she added that it was “essential” for parliament to install a president given the number of vacant positions in the Iraqi government. Jumaili’s colleague Talal al-Zobaie also pointed to the “urgent necessity” of installing a “safety valve” and mediator to “protect the constitution.” Only Muqtada al-Sadr unequivocally endorsed the prosecutor-general’s suggestion, insisting that “it makes no sense in our present time to have an Iraq without a president.”
The timing of the prosecutor-general’s request to replace Talabani reinforces the suggestion of PUK spokesperson Azad Jundiani that “we should look for the smell of politics in this request.” The Kurdistan Alliance, in which the PUK is a partner, only recently returned to the cabinet and parliament after a boycott over the passage of the 2013 budget law. President Barzani, Talabani’s sometime partner, sometime rival in the Kurdistan region, is under pressure over his intent to run for another term, a prospect for which the PUK has shown little enthusiasm. Prime Minister Nouri al-Maliki performed less strongly in the recent provincial elections than he likely anticipated: his State of Law Alliance lost more than 30 per cent of its seats nationwide, including its majorities in Baghdad and Basra. Saleh al-Mutlak, who Maliki appeared to identify as a key Sunni Arab partner in the majority government for which the prime minister has called repeatedly, also fared poorly in comparison with Osama al-Nujaifi’s Mutahidun coalition. Mutlak’s demonstrated lack of popularity among Sunni Arabs makes him a less appealing ally, encouraging Maliki to look for alternative partners in government, such as the Kurds. Facing maneuvers among his Shi‘a rivals to sideline his State of Law Alliance in provincial governments and without an overwhelming victory to demonstrate a clear mandate for a third term in 2014, Maliki’s political leverage has been diminished. The Hawija incident halted what momentum he had begun to develop through his concessions to Sunni Arabs, and Mutlak’s poor showing at the provincial elections suggests that their outreach initiative on de-Baathification may have cost them.
With Maliki and Barzani each facing opposition at home over their pursuit of further terms in office, an improved working relationship between the two would ease a long-standing source of tension and allow them to turn their respective attentions to other problems. Given Maliki’s documented influence over Iraq’s judiciary, however, it is possible that he prompted the prosecution to reopen the question of the presidency with a view to installing a KDP member and ensuring the maintenance of a working relationship with the Iraqi Kurds. Meanwhile, the relative success of the pan-Shi‘a coalition in Diyala’s provincial election, where both the Shi‘a coalition and Sunni Arab parties gained 12 seats each, has put the Kurds in the position of kingmaker, giving Maliki another reason to reach a deal. Indeed, Kurdish opposition parties have cast aspersions about the possibility of unannounced agreements made during negotiations for the Kurdish return to Baghdad. Equally, it is possible that Maliki seeks to elevate Vice President Khudair al-Khuzaie to the presidency, thus ensuring a long-time ally at the top. Khuzaie, like Talabani, has a strong relationship with Iran and could play an important role should 2014 see a repeat of the 2010 government formation negotiations, in which Iran was forced to broker a deal with the Sadrists for a second Maliki term.
The issue of the presidency will not be resolved with any immediacy, with parliamentarians showing little enthusiasm for replacing Talabani and parliament adjourned until June 18. As political blocs jockey to form governing coalitions in 12 provinces, the presidency may become another bargaining chip in negotiations for the upper hand in Iraq’s political balance.
Sunni Arab cleric’s negotiation initiative wins some support
Abd al-Malik al-Saadi, the senior Sunni cleric who positioned himself as the spiritual leader of anti-government protesters in Sunni Arab-majority provinces in January, announcedon May 13 the formation of a ‘Commission of Goodwill’ to begin dialogue with the Maliki government on behalf of protesters in six provinces. Saadi was the leading proponent of negotiation with the government prior to the Hawija attack, after which he appeared briefly to countenance confrontation with security forces, only to clarify that only self-defense was justified. In early May, he was announcedas the choice of 40 Anbari tribal leaders to lead negotiations. He has rejected the role of politicians such as Saleh al-Mutlak in mediating between the protesters and the government, urgingparliamentarians to distance themselves from the demonstrations. This stance is likely to harden in light of Mutlak’s poor electoral performance and the fact that the political coalition closest to the protest movement, Nujaifi’s Mutahidun, failedto win the most seats in Salah ad-Din and Diyala.
Saadi’s renewed move towards negotiation received the backingof protesters in areas that have seen increasing support for insurgency. Dari al-Dulaimi, a leader of the Tikrit protest camp who declared jihad against the government in the aftermath of Hawija, welcomedSaadi’s initiative, insisting that protesters sought to avoid sedition and bloodshed. In Fallujah, where insurgent groups such as al-Qaeda in Iraq (AQI) and Jaysh Rijal al-Tariq al-Naqshabandi (JRTN) have demonstrateda presence at the “Martyrs Square” site, protest media spokesman Mohammed al-Bejari announcedprotesters’ support for Saadi’s negotiation committee. Bejari stated that the protesters sought to “throw the ball in the government’s court,” expressing hope that the government would engage with the initiative “positively and seriously” in order to avoid “more painful” developments in the future.
Despite this enthusiasm for Saadi’s negotiation initiative from at least some sections of more militantly-inclined protests, the cleric faces stiff opposition. On May 16, Anbari tribal leader Ali Hatem al-Suleiman, who has long sought to boost his profile through inflammatory anti-government speeches calling for war, sent tribal forces to surround the headquarters of the Iraqi army in Ramadi after security forces raided his farm. Suleiman dismissed Saadi’s initiative, stating, “we will not accept any talks or negotiations with the government anymore.” Although he styles himself a prominent tribal leader, it is unclear how much support Suleiman actually has. At the same time, however, a wave of car bombings in Baghdad on May 15 that killed or wounded more than 130 people indicates that AQI continues to attempt to inflame sectarian tensions. Even at Ramadi, the symbolic center of the more moderate protest wing, there have been calls for violence against the government and even revolution. As ever, Maliki and the security forces will need to balance responses to genuine threats with patience and self-restraint to prevent another escalation.
Iraq’s Sunni Arabs remain divided on fundamental questions, particularly whether to work within the political process and whether that work should move towards regional autonomy for Sunni Arab-majority areas. To capitalize on the support he has won from protest factions for negotiations as well as Maliki’s slight diminution in power among Shi‘a parties following the provincial elections, Abd al-Malik al-Saadi will need to bring to the dialogue with the government a set of proposals with which Maliki can engage without further weakening his position among Shi‘a Arabs. Similarly, Maliki will need to approach negotiations constructively, with a view to empowering legitimate Sunni Arab moderates rather than crushing the protest movement that has endured for nearly five months.
Stephen Wicken is a Research Analyst at the Institute for the Study of War.