Iraqi Electoral Commission Announced

Iraqi Electoral Commission Announced

Nathan J. Brown of George Washington University writes:

“On 31 May, Bremer signed an order creating an Iraqi electoral commission. The order was not published until today, and then only in English.

The electoral commission order gas several interesting features:

It is based very much on the the interim constitution (TAL), which I therefore assume is not being quietly buried. Unlike many of Bremer’s orders, it is explicitly for the transitional period. The body does not look like it is designed to survive past 2006, but it seems designed to oversee all elections until then (i.e. not merely the election of the Assembly in December/January, but also the referendum over the constitution and the first elections held under the permanent constitution, I think).

Oddly, there seems to be some sloppiness in drafting. The “definitions” section explains what references to the elections and the parties laws mean—but there are no such references to either of these laws in the body of the law. This may suggest, however, that the CPA is intending to rush out such laws. At least it was probably planning to do so when part of the law was drafted. If it does in fact issue such laws, they may be regarded as having questionable legitimacy both domestically and internationally.

The omission of a party law is problematic given the fact that the electoral commission is granted the authority to oversee the registration of parties. Without a law (or perhaps only with the Ba`thist-era law), it is not clear how this function will be carried out.

The omission of an electoral law is also problematic. Unless the CPA issues one in the next three weeks, the legislative framework will have to be issued by the interim government (or, less plausibly, by the electoral commission). It is not clear whether either body has the authority to issue laws, and Sistani and others have made quite clear that they don’t want the interim government to be issuing laws that have any permanent effect. American officials have used more qualified wording to the same effect. So that may mean that the electoral framework is likely to be a series of “regulations” rather than laws. Such a step would raise some legal difficulties since a regulation cannot supersede a law, and there are Ba`thist-era laws on the books in this area.

Some of this confusion over the legislative authority of the interim government may be clarified in the UN Security Council resolution (though I doubt it, since earlier drafts said nothing on the subject of legislation). It might also be clarified by the annex to the TAL that was supposed to govern the interim period. But I’m not sure that the annex—referred to in the TAL and promised since last March—is getting anywhere. There was some work done on a draft, but that was done by the IGC and CPA—with the dissolution of the IGC, it’s not clear that anybody is working on this (especially since the IGC member taking the lead on the annex was apparently Adnan Pachachi).

While the whole matter of the legislative basis for elections is very murky, as I read it Perelli is taking the lead here in designing a system. But it’s unclear to me how her recommendations will be legally enacted. The question may not be that important since nobody has questioned her actions thus far. But if she comes up with a plan that somebody in the interim government does not like, this could get very complicated.

The Administrator—that is, Bremer—has an extensive appointment role on the electoral commission. But it was Perelli who announced the members last week. It is not clear if Bremer formally enacted her recommendations or not. There are also roles for the UN and—very oddly—the IGC. I think that means that the CPA did NOT expect the IGC to issolve itself with such alacrity. Bremer signed the order the day prior to the dissolution of the IGC. Presumably the required consultations with the IGC had already been completed, but that means they were done prior to the issuance of Bremer’s order requiring them.

Bremer also has issued a series of enactments on some other subjects—one allows him to appoint a chief advisor to the National Assembly of Iraq. What Assembly, you may ask? The one that doesn’t exist yet—not the interim body that Ibrahimi proposed, but the provisional parliament/constituent assembly. It may make sense to set up an office to help make preparations for the Assembly, but I would guess that the intent is to have an American-appointed advisor in place so that the US can assist in setting up the administrative and research arms of the Assembly.

Finally, Bremer also issued a money-laundering law with a significant anti-terrorism component.

Nathan J. Brown”

http://home.gwu.edu/~nbrown