Does Maliki Have a Valid Constitutional Argument (and Should We Care)?

Nouri al Maliki seems to have backed down from his efforts to defend with force or threats his role as Prime Minister of Iraq. But he continues to press a second approach: a court challenge to the constitutionality of the decision by the Iraqi President to charge another member of Maliki's party as the Prime Minister-designate. Does Maliki have a valid constitutional claim, and, if he does, how is that claim likely to play out? It’s useful to review briefly Iraq’s constitutional provisions on the formation of the Government. Article 76(1) of the Constitution states that the Iraqi President “shall charge the nominee of the largest Council of Representatives bloc with the formation of the Council of Ministers within fifteen days from the date of the election of the President of the Republic.” The Iraqi Parliament (also called the Council of Representatives or COR) elected Fouad Masoum as Iraq’s President on July 24. So, according to Article 76, by August 8 Masoum was required to charge the COR nominee from Dawa (the biggest bloc in the COR) with forming a government. He didn’t charge a nominee until August 11, so technically that violated the constitution. Maliki seems to be arguing that he clearly was the leader of Dawa, and so Masoum should have charged him with forming a Council of Ministers by August 8. The constitution is unclear about what happens if the largest COR bloc has not identified “the nominee” under Article 76 by the date identified. One could read the text as requiring the bloc itself to identify its preferred nominee, or one could conclude that the President himself has an obligation to select that nominee. The former seems to be a better reading, given that the bloc itself is best positioned to decide who it wants as Prime Minister and who is best suited to assemble a successful Council of Ministers. Here, Masoum could argue that there was no clear nominee within Dawa, so (through no fault of his own) he was unable to issue such a charge within the date fixed by the Constitution. He might also argue that it could exceed the President’s powers to insist on identifying a nominee for Prime Minister who lacked the support of his own party. On August 11, three days after the constitutional clock had tolled, fifty COR members from Dawa voted to nominate Haider al-Abadi, not Maliki, thus rendering al-Abadi “the nominee of the largest Council of Representatives” bloc. Masoum then charged al-Abadi with forming a government. Pursuant to Article 76(2), al-Abadi now must “undertake the naming of the members of his Council of Ministers within a period not to exceed thirty days from the date of his designation” (i.e., September 10). If he fails to form a Council of Ministers in time, the President must identify a new Prime Minister-designate within 15 days. Al-Abadi will need to present his slate of Ministers to the COR; if the COR approves the slate by an absolute majority, al-Abadi and his government are deemed to have the COR’s confidence. With regard to the judiciary’s role in adjudicating this dispute, Article 93 states that the Federal Supreme Court has jurisdiction to “interpret[] the provisions of the Constitution” and to “settl[e] accusations directed against the President” – though that latter prong of jurisdiction “shall be regulated by law.” I do not know whether the COR has enacted a federal law regulating this head of jurisdiction (and would welcome reader input on this point). If it has not, this jurisdictional prong may remain inoperative. Article 94 of the Constitution states that decisions of the Federal Supreme Court are final and binding on all authorities. Maliki quite probably has invoked the “interpret the constitution” prong of jurisdiction to ask the Supreme Court to opine on whether Masoum’s naming of al-Abadi violated Article 76 of the Constitution. The Supreme Court has stepped into this river before. In 2010, the Supreme Court considered what the “largest bloc” language in Article 76 meant, and concluded that the size of the bloc should be assessed not by identifying the party that won the largest number of votes in the election, but the largest party that could be formed after elections (as in a coalition among multiple parties). So the Court has waded into this type of constitutional interpretation before. The episode warrants three comments. First, Iraqi politicians have a storied history of waiting until the eleventh (or twelfth, or thirteenth) hour to make decisions with constitutional implications. This manifested itself during the 2005 constitutional drafting process, where the constitutional committee took a one-week extension to conclude its work, even though the transitional constitution guiding that process made no provision for such an extension. The vote to extend took place 30 minutes before a midnight deadline. Second, it is a positive development that Maliki has backed off his implied threats to use force to preserve his role as Prime Minister, and instead has turned to a legal process that invokes (and is contemplated by) the Iraqi constitution. As an instrumental matter, though, the court case simply reflects Maliki’s efforts to try to continue to delay his slide from power. Third, it seems unlikely (though not impossible) that the Supreme Court will feel as though it is in a position to make an independent, non-politicized judgment about the proper reading of Article 76 and any implications for its violation. Courts always must be cautious about putting their reputations on the line, particularly where there is a not-insignificant chance that political actors will ignore their orders. Young supreme courts cannot afford as an institutional matter to have their orders disregarded. The political trend is now entirely away from Maliki as Prime Minister, so the danger of disregard looms large and the costs to the Supreme Court of wading in – and in particular of finding a constitutional violation by Masoum – are high. Update [5:45 p.m.]: Just after posting, news broke that Maliki had withdrawn his court case.  Presumably the Iraqi Federal Supreme Court is more than happy not to have to adjudicate this issue.