The Iraqi Federal Supreme Court’s decision to overturn a proposed term limit law has reopened the path to a third term for Prime Minister Nouri al-Maliki. This decision, made by a judiciary over which Maliki exerts considerable influence, threatens further to provoke Iraq’s Sunni Arabs. Maliki continues to use the cover of operations against a resurgent Al Qaeda in Iraq (AQI) to intimidate and detain Sunni Arabs. The prospect of further years of Maliki rule is likely to galvanize the reorganized leaders of anti-government protests in Sunni-majority areas further. Maliki’s expected September visit to Washington, D.C., offers an ideal opportunity for the U.S. to leverage counter-terrorism support against AQI in return for serious efforts at rapprochement with Iraqi Sunnis.
Judiciary allows Maliki to run for a third term
On August 25, the Federal Supreme Court (FSC) overturnedthe proposed law passedin January 2013 that imposed term limits upon the president, prime minister, and speaker of parliament. The ruling – which has yet to be published – countermanded a proposed law that limited the “three presidencies” (of Iraq, of the Council of Ministers, and of the Council of Representatives) to two terms, successive or not. Presidents of the Republic of Iraq are limited to two terms in office under the Iraqi constitution, but no such restrictions exist for the premiership or parliamentary speakership. The proposed law originated in parliament and was passed quickly in January with strong backing from 170 MPs from the predominantly Sunni Arab Iraqiyyabloc, the Kurdistan Alliance, and the Sadrist Ahrar bloc. Maliki’s allies, led by members of his State of Law Alliance, immediately opposed it, initially on the grounds that it exceededthe constitution.
State of Law also insisted that the law would “not stand up in front of the courts,” as State of Law MP Khaled al-Assadi warnedat the time. The Higher Judicial Council (HJC), which oversees Iraq’s judiciary, had ruledin July 2010 that new legislation could be initiated only by the president of Iraq or by the cabinet; parliament could only modify laws already introduced. This distinction has a limited basis in the constitution, Article 60 of which distinguishes between “draft laws,” proposed by the president and cabinet, and “proposed laws,” presented by ten MPs or a parliamentary committee – thus making clear that the constitution-writers envisioned that parliament could propose laws. According to commentsfrom State of Law MP Ali al-Shalah and Parliamentary Rapporteur Mohammed al-Khalidi, it was on the basis of this second objection that the FSC overturned the term limit legislation.
Maliki’s influenceover Iraq’s judicial institutions is well established. He solicited and received significant judicial assistance in his bid for a second prime ministerial term in 2010, and has since benefitted from judicial rulings enhancing cabinet power at the expense of Iraq’s constitutionally independent bodies and shielding Maliki and his ministers from questioning in parliament. The pliant judiciary has also readily provided arrest warrants for Maliki’s most outspoken critics, including Vice President Tariq al-Hashemi, former Finance Minister Rafia al-Issawi, and independent MP Sabah al-Saidi. Maliki struck a dealwith the Sadrists in February 2013 that preserved the tenure of his key judicial ally, FSC head Medhat al-Mahmoud, in the face of a Sadrist challengeon de-Baathification grounds.
The timing of the judicial ruling, the outcome of which was widely anticipated, raises questions about Iraq’s political balance. Maliki has been under political pressure over his failure to stem rising violence in Iraq, as well as his government’s inability to provide basic services such as electricity. In the context of rising AQI violence and the group’s attackon the Abu Ghraib prison, Muqtada al-Sadr and Islamic Supreme Council of Iraq (ISCI) leader Ammar al-Hakim, as well as former Prime Minister Ayad Allawi, made public callsfor Maliki’s resignation. The timing of the ruling, therefore, may have been intended to demonstrate that the prime minister still enjoys the backing of the judiciary and assure Maliki’s friends and foes alike that he intends to fight on.
The opening of a pathway to a third Maliki term has serious implications for Iraqi politics. Maliki allies have been quick to demonstrate their confidence following the verdict. Shalah struck a defiant note in announcing the judicial decision, warningMaliki’s opponents that they will have to wait until the 2014 elections and “convince the street” that they can replace him. Compounding the slight, HJC head Hassan Ibrahim al-Humairi, who took over from Medhat in February, took time on August 25 to meet with Izzat Shahbandar, another close Maliki ally, to stress the judiciary’s “independence” and “impartiality..” Maliki’s opponents, meanwhile, have immediately pointed to the politicization of the judiciary: Maysoon al-Damalouji, spokesperson for former Prime Minister Ayad Allawi, insistedthat the judiciary was acting “in full compliance” with orders from Maliki. Salim al-Jubouri of the Sunni Islamist Iraqi Islamic Party (IIP) warnedthat the decision would justify “further domination and imposition of [Maliki’s] will.” Mahmoud Othman of the Kurdistan Alliance raisedthe possibility that parliament might reexamine the issue and submit legislation to the cabinet.
A renewed parliamentary initiative would cast a spotlight in particular on the intentions of Muqtada al-Sadr, who appearedbriefly to “quit” politics in early August, only for members of his Sadrist Trend quickly to dismissthe rumors. Sadr, alongside Allawi and other members of the Iraqiyya coalition and the Kurdistan Alliance, was one of the leaders of a campaignto withdraw confidence in Maliki in 2012. As recently as the end of July, Sadr and Hakim were rumored(admittedly in a Saudi publication) to be spearheading a campaign within the Shi‘a Iraqi National Alliance to force Maliki’s resignation. After years of political decline, Hakim’s ISCI made a significant comebackat the 2013 provincial elections, forming a post-election “strategic alliance” with the Sadrists that appeared to represent a Shi‘a political counterweight to Maliki. Although rumors of Sadr’s political demise appear greatly to have been exaggerated, it is as yet unclear what political role he will play in this alliance as Iraq begins to look ahead to 2014. Sadr has been facing a renewed challenge for control of his political constituency in the form of Asa‘ib Ahl al-Haq, the Shi’a group that broke away from the Sadrists and has been competingviolently with the Sadrists in Baghdad, likely with Maliki’s acquiescence or even support.
Maliki’s removal before the elections can be effected through a vote of no confidence, which can be initiated through one of two procedures. The Iraqi president can request a vote, without presenting a reason or collecting signatures from MPs. President Jalal Talabani of the Patriotic Union of Kurdistan (PUK) has been absent from Iraq since December 2012, when he suffered a stroke. He is unlikely to return to full strength, despite signs of recovery, and competitionto replace him has been underway for some months. Judicial efforts to force parliament to replace Talabani in May drew accusationsof political jockeying, but gained no traction in terms of filling the presidential role. The second mechanism for introducing a vote of no-confidence is no more promising. 25 MPs can request that the parliamentary speaker call a minister, including the prime minister, for questioning in parliament. After a minimum of seven days, a fifth of the deputies in parliament (65 MPs) can call for a vote of no confidence. In May 2012, however, the FSC ruled that MPs must demonstrate constitutional and legal wrongdoing in order to interrogate, and subsequently withdraw confidence from, a minister in parliament. This decision, which appears to have no constitutional basis, placed a greater burden of proof on MPs wishing to bring a vote against the prime minister. Ali al-Shalah’s defiant statement suggests that Maliki and his allies feel confident that neither process poses a threat between now and the next elections. Notably, absent among the usual suspects calling recently for Maliki’s removal were Iraq’s two most senior Sunni Arab politicians, Parliamentary Speaker Nujaifi, who instead met with Maliki to discuss reducing sectarian tensions, and Deputy Prime Minister Saleh al-Mutleg, who has been working with Maliki for some months. With Maliki certain to leverage every aspect of his considerable apparatus of control in order to ensure a third term as prime minister, all of Iraq’s key political actors – as well as its neighbors, particularly Iran, and the United States – will have significant decisions to make in the coming months.
Protesters galvanized by post-Abu Ghraib security operations
Collusion with Maliki has made the judiciary a favorite target of the anti-government protests that have been ongoing in Sunni Arab-majority areas since December 2012. Prayers were held at Ramadi’s ‘Pride and Dignity Square’ on August 7 under the banner“NO for the tyrannical ruler and his federal court,” likely in protest at the judicial system’s cooperation in the harassmentof Sunni Arabs. Neither the passage of a term limit law nor Maliki’s forbearance of a third term was among the central demandsof protesters espoused in January: the reform of the FSC to constitute an “independent, non-politicized judiciary,” however, was one of the demands.
The prospect of another four years or more of Maliki’s rule is likely further to animate the protesters, who have already been spurred on to reorganize and refocus by Maliki’s security operations. AQI’s July 21 attackon the Abu Ghraib prison, where some of the group’s most experienced operatives were being held, constituted a serious inflection in Iraq’s ongoing political and security crises. Maliki’s response, the Revenge of the Martyrs campaign, has focused on Sunni-majority areas of the Baghdad belts, with concomitant operations in the predominantly Sunni provinces of Ninewa, Salah ad-Din, and Diyala. The huge numbers of arrests made in these operations strongly imply indiscriminate detention of Sunni Arab men in these areas. Religious leaders of ongoing protests in these areas, as well as in Anbar province, were quick to pointto arbitrary arrests and accusethe ISF of conducting sectarian cleansing operations around Baghdad. They have since continued these criticisms. On August 23, Khalid Hatem al-Samarrai, the preacher at Friday prayers at the main Al-Haq Square protest site in Samarra, indictedthe government for carrying out killing and displacement in the Baghdad belts. In Ramadi, preacher Hussein al-Dulaimi echoed Hatem, claimingthat the government continued to “kill, arrest, and displace innocent Sunnis” in and around Baghdad and to confiscatetheir property and livestock. Dulaimi accused Maliki of pursuing a two-pronged approach, first emptying Baghdad and the belts of Sunnis through “expulsion and detention,” before proceeding to “refill the prisons” with Sunni Arabs. At a protest in Fallujah, protesters allegedthat Iraqi army troops in Abu Ghraib and Diyala had sought deliberately to offend and provokeSunnis by insulting Abu Bakr and Umar, revered by Sunni Muslims as the first two rightly guided caliphs.
Reported arrests in Sunni Arab-majority areas of Iraq since August 1, 2013
These statements from senior clerics have since been echoed by Sunni Arab politicians. Parliamentary Speaker Osama al-Nujaifi’s Mutahidun bloc on August 15 accused the government of pursuing a “retaliatory sectarian approach” and sowing hatred through “human rights violations and arrests, killings and brutal torture in its prisons and detention camps.” Mutahidun warnedthat Maliki’s government would struggle to “gain the trust of the people” for assistance in counter-terrorism measures, given its history of “sectarian behavior.” Sunni Arab MPs Etab al-Douri and Haqi al-Firas subsequently accusedthe ISF of carrying out “random arrests” and establishing a “siege” of Sunni Arab areas. Newly elected Anbari Governor Ahmed Khalaf Dheyabi of Mutahidun, a protest organizer from the IIP, held a meeting with protest and tribal leaders on August 24 at which he sought to establish himself as a focal figure for the Anbari protesters and guarantor of their protection. Dheyabi insistedthat he would be “the first to stand in defense of the protesters in the event of being targeted by any party.”
The ‘Revenge of the Martyrs’ operation appears to have had the effect of unifying Sunni Arab forces that had hitherto appeared increasingly fragmented over time. On August 16, Ahmed al-Said, a cleric from Diyala, addressed protesters in Samarra to announce that the organizing committees of protests in the ‘Six Provinces’ (Anbar, Baghdad, Diyala, Kirkuk, Ninewa, and Salah ad-Din) were reorganizing as a new “political, economic, and military front.” Said’s speech echoed a similar announcement on August 3 by Mohammed Taha al-Hamdun, the main spokesman in Samarra, in which Hamdun announced that the “Six Provinces” group of protest organizers, originally directed from Ramadi and incorporating clerics, tribal leaders, and Mutahidun and IIP leaders, would now organize themselves to become the “legal representatives” of Sunni Arabs in Iraq. Although the various committees involved in organizing the protests – both the “coordination committees,” initially more prominent in Anbar, and the “popular committees” more prominent in Salah ad-Din – have always demonstrated a notable level of organization, these announcements suggest two developments. Firstly, in the wake of the provincial elections, the Mutahidun succeeded in taking the governorships of Anbar, Diyala, and Ninewa, and the chairmanship of Baghdad Provincial Council. Sunni Arab political leaders on the provincial level, therefore, likely are now occupied with provincial government, and clerics appear to be taking a more visible lead in representing the protesters. Secondly, the ‘reorganization’ highlights the extent to which Samarra has become a focal point for the protest movement, and Hamdun its highest-profile representative, particularly since Anbari spokesman Said al-Lafi fled Iraq for Doha in May after repeated arrest attempts. Hamdun’s chairmanship of the August 3 “Six Provinces” conference in Ramadi suggests that his profile as a spokesman for the protesters has grown significantly, although it is unclear at this point whether he directs or merely represents the group.
Maliki ally Ali al-Shalah’s reference to political opponents’ need to “convince the [Iraqi] street” that Maliki is replaceable is worth reconsidering, however, in the light of calls for a new wave of protests in Baghdad and southern Iraq. In addition to the anti-government protestsin Sunni-majority areas, demonstrations broke out in southern Iraq in June over the Maliki government’s failure to provide electricity. Since then, groups of civil society and youth activists across southern Iraq have announcedtheir intention to hold demonstrations on August 31 demanding the cancellation of pensions for retired MPs. Protests are planned for Babel, Baghdad, Basra, Dhi Qar, Karbala, and Najaf under the aegis of the National Campaign to Cancel MP Pensions, the Facebook group for which had over 18,000 members at the time of writing. The group in particular has made clear its intentto gather in Tahrir Square in central Baghdad. Although it is unclear whether the protest organizers have links to any established political party, the newly installed Sadrist governor of Baghdad, Ali al-Tamimi, criticizedthe Interior Ministry’s apparent intention to preventthe demonstrations, insisting that no party or actor has a right to prevent protests. The national prosecution service, however, has echoed the Interior Ministry’s disapproval, calling on activists to refrain from holding these protests in the face of mounting violence, particularly on the part of AQI. Undoubtedly such gatherings in predominantly Shi‘a areas would make extremely tempting targets for AQI.
The Interior Ministry’s insistencethat it welcomes “freedom of expression and of assembly and demonstration” rings false, however, in light of continued raids of protest sites in predominantly Sunni Arab areas. On August 16, security forces arrested Munir al-Obeidi, vice chairman of the Iraqi Scholars Council, long seen as one of the key organizers of the anti-government protests. Obeidi was detained near the university district of western Baghdad after delivering a Friday sermon, but was released later the same day. Security forces subsequently arrested Omar Ali al-Halbusi, the head of the Scholars Council in Garmah, east of Fallujah on August 26. A police source in Anbar then reportedthat Iraqi Army forces attempted to storm a Ramadi protest site on August 27, resulting in an armed clash with “gunmen” but no casualties.
With the path clear for a third prime ministerial campaign in 2014, Maliki may feel a renewed sense of confidence. Although one of the pillars of Maliki’s power, the ISF, has been struggling to contain rising violence, perpetrated particularly by AQI, Maliki still appears to be able to project power through another pillar, the judiciary. The prospect of a third Maliki term, however, is likely to galvanize the prime minister’s followers further. Given the growing weight of sectarianismin the region and the extent to which Iraq is being pulled into the conflict over the Syrian border, a cross-sectarian anti-Maliki political alliance appears unlikely at the present time. The threat of further mobilization in Sunni Arab areas of Iraq, however, spurred by ISF operations whether indiscriminate or deliberately targeting Sunnis, appears greater, particularly as AQI and the Baathist Jaysh Rijal al-Tariqah al-Naqshabandia (JRTN) stretch ISF capacity towards breaking point in some areas. The prospectof Shi‘a militias being incorporated into new Sahwa (Awakening) units in Baghdad and the already fractious Diyala portends even greater danger. An anticipated Maliki visit to Washington, D.C. in September would offer an ideal opportunity for the United States to emphasize the need for an independent Iraqi judiciary, and to leverage Iraq’s need for assistance in countering AQI in order to dissuade Maliki from provoking Iraq’s Sunni Arabs further.
Stephen Wicken is a research analyst at the Institute for the Study of War.