Part 3. Examining the legislative branch
By Bill Ardolino
http://www.longwarjournal.org/archives/2008/02/inside_iraqi_politic_2.php

Understanding the constitutional structure and current composition of Iraq’s legislative branch is a prerequisite to analyzing the much-maligned progress of key legislation. As with the executive, the political diversity of Iraq’s legislature presents many significant challenges and a few opportunities to meeting the legislative benchmarks considered important to stability and reconciliation.

The structure and function of the Iraqi legislature

Iraq’s Constitution ostensibly vests legislative power in two entities: the Federation Council and the Council of Representatives, or COR. The nonexistent Federation Council is vaguely outlined as a body of representatives from various regions, but its exact authority and makeup remain open issues to be determined by the COR. The COR is Iraq’s functioning parliament, consisting of 275 elected officials who oversee the executive branch, pass laws, ratify treaties, and approve the nominations of government officials.

Elected in December 2005 and having first met on March 16, 2006, parliament members also elect Iraq’s president, who in turn appoints the prime minister from the majority political coalition within the COR. The body is supposed to meet for two four-month sessions per year with two-month breaks in January-February and July-August, though this schedule has been altered as needed when members have failed to meet legislative deadlines. The COR is currently in one of these special sessions because its members failed to pass the 2008 budget at the close of 2007. A minimum of 138 members is required for quorum, though the parliament can continue to function with less if the previous legislative session was never closed. Poor attendance has been a problem in regular sessions.

“On any given day, about 100, sometimes fewer, sometimes more members are absent,” said a Western diplomat speaking on condition of anonymity. “The speaker and … even more strongly, the first deputy speaker, have made the point that the members should attend and that it’s their responsibility. However, it remains the case that many members do not attend.”

While many members miss sessions, “real” political agreements are often brokered outside of official COR debate, spurring sufficient participation when issues come to a vote. This paradigm is similar to how the US Congress works, though Iraq’s parliament has a greater degree of absenteeism.

“When there’s an important vote and once the political agreements done behind the scenes have been accomplished, what usually happens is the membership will come together and the bloc leaders are able to pull enough people in so that a vote can take place,” said the diplomat. “When push comes to shove, [they] can be gathered together.”

Laws can be created in two ways: initiated by the executive branch and passed to the COR for debate and ratification, or initiated by the COR, passed to the components of the executive, and then bounced back through the parliament. Typically, bills are drafted by the prime minister’s office, then debated and approved by the Council of Ministers – a body within the executive branch consisting of about 40 of the heads of Iraqi ministries – then moved on for debate, revision, potential judicial review, and approval by the parliament.

After majority approval by parliament, bills are presented to the Presidency Council – the president and two vice presidents – who can sign it into law or veto the legislation. Once signed, the proposed legislation becomes law after it is published in the official government gazette, a summary of parliamentary action. This extended debate process – spanning fractious deliberative bodies in both the executive branch (the 40-member Council of Ministers) and the legislative branch (the 275-member COR) – demands a level of coordination difficult for Iraq’s politically diverse government and prohibits speedy passage of legislation.

“The lack of coordination and cohesion between the executive and the legislature … is a particular problem that has to be solved in order to make the kind of political progress that this country needs,” said the Western diplomat. “And there are people working very hard to get that political cooperation. It’s not easy, but I think things are headed in that direction. There are some signs of the urgency, the need for political leadership by the prime minister and the Council of Ministers.”

“[It’s] very difficult for a democratic body of legislators – let alone an executive branch with a ministerial group that’s a mixed and fractious coalition – to come to agreement on key things,” said Phil Reeker, Counselor for Public Affairs at the State Department. Reeker noted that democratic processes familiar to Westerners are brand new to Iraqis, who have also been struggling to learn how to govern in the midst of extreme violence.

“Now, with better security, you do have a little less trouble at least getting to parliament and focusing on passing legislation,” said Reeker.

As there are no plans to alter the structure of the government under the Iraqi Constitution, most US officials believe that stronger leadership from the prime minister’s office, enhanced communication between the legislative and executive branches, and encouragement by US advisers are the best bets for moving legislation forward. As a benefit, the government’s decentralized structure has successfully forced Iraq’s various religious and ethnic sects to interact and form political coalitions, even as it has significantly delayed agreement on key proposals.

Iraq’s parliament is composed of political blocs made up of various parties that reflect the demographic diversity of the country.

The speaker of the COR is Mahmoud Mashadani, who is with the largest Sunni bloc. First Deputy Speaker Sheikh Khalid al Attiya is an independent within the largest Shia bloc, and Second Deputy Speaker Arif Tayfur is a member of the main Kurdish bloc. The sectarian groupings are reflected in the leadership as well as the composition of the COR itself. The membership changes frequently because of resignations or political moves, and various US officials can offer only approximate numbers for the distribution of political parties and blocs within parliament.

The largest political bloc is the United Iraq Alliance (UIA), a primarily Shia group that currently holds about 85 seats. The UIA is dominated by two better-known political parties: the Islamic Supreme Council of Iraq (ISCI), and Prime Minister Nouri al Maliki’s Islamic Dawa Party.

Some analysts consider the conservative Shia ISCI an Iranian proxy, others see it as a US ally, and all regard it as the major competitor to the Sadrists in southern Iraq. Recent platform changes by ISCI have stressed nationalism and distanced the party from Iran, including a politically loaded name change and pledge to seek guidance from Iraq’s top cleric, Grand Ayatollah Ali al Sistani, as opposed to a previous focus on Velayat-e-Faqih, a school of Shiite governance led by Iran’s Supreme Leader Ayatollah Ali Khamenei. Analysts debate the motivation behind the changes – some argue they earnestly reflect the Iraqi nationalism and anti-Persian sentiment among ISCI’s constituency, while others suggest the shift has been executed with Tehran’s practical blessing. In any case, the new platform generally advances the concept of nationalism, which could enable reconciliation.

The Islamic Dawa Party is a conservative Shia Islamist party that had been outlawed by the previous regime and its members sentenced to death by Saddam Hussein. Dawa also has ties to Iran, a relationship historically characterized by the party’s previous support of the Iranian revolution and Tehran’s welcome of exiled Dawa leaders and backing of their insurgency against Hussein. But the relationship is complex; party leadership moved from Iran to London in the late eighties, and Dawa officials have been involved in forging ties to both the US and emerging Sunni leadership. These moves include recent negotiations regarding a long-term security and economic agreement with the US, the legal authorization for continued US military presence in Iraq, the government’s adoption of grassroots Sunni security forces, and an increased distribution of reconstruction funds to the predominantly Sunni Anbar province.

Another large Shia group of about 28 seats is held by the Sadrist Movement led by radical anti-American cleric Muqtada al Sadr, the son of legendary deceased cleric Mohammad Sadeq al Sadr. The younger Sadr has very close ties to Tehran, characterized by his flight to Iran at the start of the US military “surge” in February 2007. And in contrast to SIIC’s moves away from Iranian influence, Sadr is studying to become a cleric under Khamenei’s Velayat-e-Faqih. The larger Sadrist Movement is a loose confederation of elements not completely under al Sadr’s control, some of which were complicit in past sectarian cleansing, others which are more moderate. The party was a part of the ruling United Iraq Alliance, and hence the executive government, until members walked out of both in an April 2007 protest over government plans to forge a lasting security agreement with the US. Some Iraqi and US officials believe that the cohesion and influence of the Sadrist Movement is waning, as the militias associated with them become less popular, and as Sadrist ministers individually negotiate returns to the government without Muqtada al Sadr’s blessing. Another notable Shia party is the Islamic Virtue Party (IVP), which holds 15 seats. The IVP is considered a branch of Sadrism because it follows the teachings of Mohammad Sadeq al Sadr, but nevertheless could be considered a competitor to those who follow his son. The IVP also withdrew from the ruling bloc in protest over a continued US presence in Iraq.

These entities – the UIA bloc containing ISCI and Dawa, the Sadrists, and the Islamic Virtue Party – constitute “the basic building blocks among the Shias,” according to the Western diplomat.

The Kurds are largely grouped in the Democratic Patriotic Alliance of Kurdistan (DPAK), considered the most unified voting bloc in the COR. The DPAK consists of 53 members primarily drawn from the Patriotic Union of Kurdistan (PUK) party and the Kurdistan Democratic Party (KDP). The bloc is closely allied with US interests, though its members are strong advocates of weak federalism, and sometimes make independent moves that seem to conflict with Iraqi nationalism. Independent or otherwise affiliated Kurds hold another five or six seats outside of the DPAK.

The current major Sunni bloc is called the Tawaffuk or Iraqi National Concord Front, which holds about 40 seats and is composed of three parties: the General Council for the People of Iraq (GCPI), the Iraqi Islamic Party (IIP), and the Iraqi National Dialogue Council (INDC). Tawaffuk’s platform is anti-Iranian and pro-Sunni, though its parties are not considered widely representative of Iraq’s larger Sunni population by some American officials, because many Sunni leaders sat out of national elections.

The Sunni bloc is led by Ayad al Samarrai of the IIP, and its former chairman is the controversial Adnan al Dulaymi of the GCPI, who is widely believed to be involved in insurgency and sectarian violence. Terrorism charges against Dulaymi have spurred several US and Iraqi raids on his offices over the past two years and calls by other members of parliament for his prosecution. Last December, Dulaymi’s son and many of his bodyguards were detained in connection with the manufacture of car bombs, which “provoked issues within both Tawaffuk and … a great deal of controversy and some significant time within the COR,” said the Western diplomat. “Several days running were spent talking about his issues within the COR debate.” Dulaymi, who has survived several assassination attempts, has thus far avoided prosecution because rivals fear a backlash against his arrest.

In addition, Tawaffuk’s Mahmoud Mashadani was briefly suspended as the Speaker of the COR in June 2007 because of his divisive politics, frequent violent outbursts, and use of bodyguards to physically intimidate and even attack other members of parliament. A frequent critic of US forces, Mashadani retained his position after the Tawaffuk bloc boycotted the government to win his reinstatement. Initially part of the ruling government coalition, the bloc’s five ministers also quit Maliki’s cabinet last August over perceived dominance by the Shia and Kurdish parties, but Tawaffuk is currently negotiating their return.

Overall, the distribution of sectarian-based political affiliations in the COR is about 45 percent Shia, 20 percent Kurdish, and 15 percent Sunni Arab, roughly reflecting the proportion of the three major ethnicities and sects in larger Iraqi society. The remaining 20 percent – approximately 54 seats – are divided between Shia and Sunnis who are explicit secularists, independents, and minority representatives, including Yazidis, Chabeks, and Assyrians. The most significant political bloc among this group is the Iraqi National List (INL), which holds about 25 seats. The INL is a hodge-podge of political ideologies and sects aligned as a secular alternative to sectarian-based coalitions, and it is dominated by the Iraqi National Accord (INA) party. The pro-American INA is headed by Ayad Allawi, Iraq’s interim prime minister in 2004-2005. Founded in 1990 under a charter of overthrowing the regime of Saddam Hussein, the INA is considered a moderate party; many Sunnis regarded the Shia Allawi as an acceptably nonsectarian prime minister.

The important wrinkle in Sunni representation

Change wrought by the Anbar tribal Awakening is a vital component of evaluating the interest and intent of Iraq’s Sunnis, as well as possibilities for Iraqi federalism and long-term reconciliation. The current Sunni representatives in parliament are “minimally” representative of the wider Sunni population because most Sunni leaders and tribal structures boycotted the last national elections, according to various US military and intelligence officials.

“Because most Sunnis boycotted those elections, IIP was able to sweep the field,” said a US intelligence official speaking on condition of anonymity. “But despite being the Sunni voice in Baghdad, they have been completely unable to prevent either the anti-Sunni pogroms in Baghdad or the rise of al-Qaeda in the Sunni provinces.”

Provincial elections that are scheduled to take place in October and subsequent national elections in late 2009 will be important, as they will give Sunnis with the popular and US-allied Sahawa al Iraq, or Iraqi Awakening, official status within the government. This will consolidate their de facto influence through democratic means, codifying both Sunni rejection of insurgency and lasting status within larger Iraqi society.

“While a number of the sheikhs are skeptical about the prospects for democracy in Iraq, as a general rule they are more than happy to consolidate the practical power they already wield through democratic means,” said the US intelligence official. “The Iraqi Islamic Party (IIP) and its Tawaffuk Front coalition partners recognize the amount of popular support that Sahawa al Iraq has, and have done everything in their power to stall local elections until they can find a way to ... retain their current power.”

Some US officials argue that the emergent Sunni leaders are predisposed to reconcile and realistic about their new role in Iraq society.

“[Reconciliation] would just be letting them come back and be the minority they are and now recognize themselves to be,” said Stanton. “Because being a minority doesn’t mean you’re powerless in this parliamentary system, because the Shia are fairly fractured and there will be Shia from time-to-time who will caucus with the Sunnis and Kurds to make deals.”

Sectarianism and diverse representation: crippling or workable?

While the media has focused on a narrative of unrelenting sectarianism as the cause of the COR’s inertia on passing legislation, many American officials believe this view ignores some context, including the decentralized design of the government under the Iraqi constitution and a lack of experience with democracy among Iraqi officials.

“[Sectarianism] is clearly an element; political parties are formed along sectarian lines and political blocs, too,” said Reeker. “That’s not uncommon in countries all over the world. That does not have to be a recipe for disaster. What it means is finding the mechanisms under the constitution they have to get through those things and do what it takes to govern, so that all the parties in government and the citizenry can feel secure and comfortable.”

And despite the splintered character of the country’s political and demographic makeup, as well as the enhanced sectarianism that flared during the bloody conflict in 2006, both Americans and Iraqis are quick to describe the existence of a strong nationalistic sentiment in Iraq.

“There’s a sort of nationalism in Iraq that frankly people don’t realize,” said Reeker. “Sectarianism is not as etched or hard-wired into the society here … as people think based on what was absolutely brutal, horrific sectarian violence … after the Samarra mosque bombing in 2006. If you look back in history, Iraq was a place where the Sunnis and Shia mixed, it was a place where there was a certain strong Arab nationalism. So [reconciliation is] something they have to keep working. They have these very difficult debates, but they have found certain mechanisms … to get some of this done, whether it’s passing budgets, executing them, getting money moved out to the provinces.”

With improved security, only time will reveal if such nationalism will result in sufficient accord within the Iraqi legislature. Many US officials shun the term “reconciliation” in favor of “accommodation,” given the difficult diversity of Iraq’s sects, ethnicities, and interests.


Part 4. A look at legislative progress: Reconciliation via wealth distribution
http://www.longwarjournal.org/archives/2008/02/inside_iraqi_politic_3.php

Some of the most important measures of progress are the Iraqi government’s efforts to propose and pass legislation allocating wealth. This includes the 2008 budget, which is immediately essential to executive functions and represents a de facto distribution of revenue among Iraq’s provinces and sects, and the hydrocarbons laws, which will have long-term ramifications for the apportionment and development of the country’s oil resources.

The 2008 Budget

Passed on Feb. 13, the budget was a pivotal piece of legislation, as it outlines the disbursal of revenue for all purposes in 2008, and the Iraqi parliament had missed its constitutionally mandated deadline to approve it in 2007.

Even in the absence of a current budget, money flowed at the start of this year. The projected revenue in the $30.2 billion budget for 2007 had been met a month early and exceeded by surprisingly high oil revenue; last year’s revenue was allocated but contracts remain unexecuted, so projects are ongoing; and several supplemental budgets approved in 2007 had injected funds into the provinces. But approving this year’s budget of $48 billion remained a priority, given that it more directly addresses the country’s pressing economic, reconstruction, and security needs.

“It reflects some of the lessons learned [last] year,” said Brigadier General Terry Wolff, the Special Assistant to the President and Senior Director for Iraq and Afghanistan Policy Implementation on the National Security Council. The 2008 budget has an “increased security budget, increased provincial budgets, … and it will also reflect the fact that the Iraqis are doing what both the IMF [International Monetary Fund] and the World Bank have asked them to do in terms of debt relief and controlling inflation.”

The budget is also considered a measure of reconciliation, because it candidly reflects the government’s willingness to distribute resources equitably among regions and sects. This is especially relevant in the absence of an official agreement about the division of Iraq’s oil profits, which constitute about 95 percent of the country’s revenue. Some American officials point to the budget as a sign of Iraqi compromise and desire to remain unified as a country.

As an example, Iraq’s parliament, the Council of Representatives (COR), opened a special legislative session at the end of December to resolve the disputes delaying passage of the 2008 budget. Lawmakers interrupted their winter break to debate funding of the Kurdish Regional Force – Kurdistan’s semiautonomous security forces – and the proportion of nonfederal funds allocated to Kurdistan. Non-Kurdish lawmakers had cited Iraqi Planning Ministry data showing that Kurdistan contains 13 percent of the country’s population and argued that the province should be funded accordingly. The Kurdish representatives wanted to maintain the 17 percent allocated to the province in previous budgets.

The impasse was resolved with parliament’s passage of the budget on Feb. 13, along with the Provincial Powers Act and the General Amnesty Law. Representatives agreed to integrate up to two divisions of the Kurdish Regional Force into the Iraqi Army, and individual political deals brokered between the Kurdish bloc and major Shia parties maintained the past proportion of funding for Kurdistan. According to a secular Iraqi politician not affiliated with the parties, the Sadrist Movement and the Islamic Supreme Council of Iraq both agreed to support the 17 percent allocation in return for Kurdish support of the Provincial Powers Act.

This type of political deal is an example of how the budget reflects ethno-sectarian compromise through revenue apportionment, as well as how the legislative process can enable accommodation.

“The budget represents all of the sectarian communities and they all believe it’s a good, investment-heavy document,” said Phil Reeker, Counselor for Public Affairs at the American Embassy in Baghdad. “I think that’s the thing to point to, because ultimately that’s the function of government; taking revenues and spending it on the people.”

The Hydrocarbons law

The Iraqi hydrocarbons law, or oil law, is really a package of four pending laws vital for governing the oil industry and the overwhelming majority of Iraq’s revenue. These laws will significantly influence the degree of the country’s long-term wealth and help outline management responsibilities and profit sharing. Specifically, the four laws outline:

1. Managing investment in Iraq’s oil resources, specifically the industry’s upstream development;
2. Revenue sharing among private companies, provinces, and the federal government;
3. Restructuring the Ministry of Oil; and
4. Reconstitution of the Iraq National Oil Company (INOC).

How Iraq’s oil industry integrates with foreign investment is a pivotal aspect of the ongoing debate over the legislation. The industry was nationalized in 1972 – a status currently shared by neighbors such as Saudi Arabia and Iran – but analysts believe that foreign investment based in profit sharing will significantly increase oil revenue. Iraqi politicians, oil companies, and various independent advisers are attempting to strike a balance between Iraqi control and foreign investment that will maximize the industry’s potential, while allaying nationalist fears over the politically sensitive topic of who controls and profits from the oil. Successful legislation is considered a prerequisite to attracting foreign investors.

“It’s not the security situation that keeps the oil companies away, … it’s the lack of a comprehensive national oil law,” said Reeker. “You have to have this national law that establishes the legal framework [for] foreign investors. … They’re not going to come until they know the rules of the road are defined and can be reasonably expected to remain in place.”

Key points of contention in the privatization vs. nationalization issue include the length of any contracts, the preferential treatment of the INOC over private investors in awarding contracts and responsibilities, and production sharing agreements that determine the split of profits between private companies and the government. Initial drafts of the investment portion of the legislation assigned the majority of profits to private oil companies until they recoup exploration and drilling costs, after which the companies earn 20 percent. Critics believe this degree of revenue sharing gives away too much of Iraq’s oil wealth, while proponents of the plan argue that it is a fair distribution given the assumed risk of the foreign companies, as well as their unique ability to drastically increase the country’s oil production. But significant, long-term production sharing agreements are abnormal for the region, as many countries utilize private companies on a more limited, contractual basis to augment nationalized industries. The extent of any revenue sharing between Iraq and private investors remains in debate, but some experts assert initial drafts provide for government control.

“[T]he aim of this law from beginning was to promote foreign investment in Iraq’s oil sector,” said Revenue Watch Middle East Director Yahia Said, at an event held in May 2007 by the US Institute of Peace, an independent organization funded by the US Congress. “Yet while the law opens the door for foreign companies, there are careful, deliberate mechanisms in place to maintain control in the hands of national government.”

Drafts of the laws have required that any contracts with private companies contain language that stipulates Iraqi government control, give the INOC authority over more than 90 percent of Iraq’s known oil reserves, and mandate a degree of transparency in oil contracting that is unusual for the Middle East.

The other major debating point in hydrocarbons legislation is the degree of federal vs. provincial control over management of the industry. Two facts spur inevitable differences among naturally self-interested ethno-sectarian parties: the overwhelming proportion of the country’s revenue comes from oil and the major oil fields are unevenly located across Iraq’s provinces. The current draft of the law leans toward centralization by regarding the industry as a national patrimony overseen by the Council of Ministers, with specific policy set by the Ministry of Oil.

In very general terms, Kurdish politicians want more decentralization and aggressive production sharing agreements with Western companies, Shia leadership is open to decentralization but is more circumspect about Western investment, and Sunni leaders emphasize centralization while also closely vetting the conditions for any arrangements with foreign companies. The Kurds have long lobbied for control of northern oil resources and passed their own regional oil law in August 2007. But a federal government spokesman declared the law “illegal” and warned that foreign investors making deals with Kurdistan will be subject to lawsuits and denial of contracts after any federal oil laws are passed. Several foreign companies signed development contracts with the Kurds despite the warnings.

The first federal law governing investment has been approved by Iraq’s executive branch and submitted to the Council of Representatives for debate and review, though the legislature has made little progress on resolving key issues. Drafts of the other three laws have not been finished by the executive to be forwarded to the legislature. Analysts assert that all four laws must be reviewed as a package before the parliament can pass any of them. It is likely that debate over such comprehensive oil legislation will take some time, given the political sensitivity, complexity, and huge, long-term ramifications of the issue. Overall, the laws are slowly moving through committees but are delayed by a cautious approach and a lack of agreement on key questions, with many divisions along regional party lines.

As for when the legislation is likely to pass, one official would not venture to guess. “I couldn’t put a date on its passage; it’s a tough one,” said Reeker.

Short-term resolution of a long-term issue

While sectarianism and regional disagreements affect legislative progress in Iraq, lawmakers and bureaucrats have managed to achieve consensus on revenue distribution essential to the function of government with the passage of the 2008 budget. US officials believe that the distribution currently taking place – in the form of equitably apportioned yearly budgets and past supplemental budgets assigned to provinces – is a reasonable indicator of willingness to compromise and remain unified as a country, as well as address Iraq’s pressing economic, reconstruction, and security needs.

But a host of unresolved items delays legislation on the long-term disposition of Iraq’s oil industry and wealth. Progress on hydrocarbons law calls for striking a balance between federal and provincial authority and between privatization and nationalization. In addition, Iraqi politicians are cautious about the design and compromise of any legislation, as they view any agreement as a de facto definition and distribution of political power that will outlast shorter-term US interests. Given the import of the legislation and the difficulty of competing interests, the uneven geographic distribution of oil fields, politically sensitive matters of nationalism, and a decayed oil infrastructure requiring private Western investment, Iraqi technocrats and lawmakers have some way to go before reaching agreement on the package of hydrocarbons laws. Effective compromise on this issue will be vital to building on Iraq’s impressive revenue momentum and stabilizing the country through long-term equitable wealth distribution among provinces and sects.


Part 5. A look at legislative progress: Sunnis’ and states’ rights
http://www.longwarjournal.org/archives/2008/02/inside_iraqi_politic_4.php

A significant measure of political progress in Iraq is the parliament’s ability to pass laws on sectarian reconciliation and those stipulating the government’s long-term design. To those ends, the most significant pieces of legislation include the Unified Retirement Law, the Accountability and Justice Law, the General Amnesty Law, legislation on the status of Kirkuk, and the Provincial Elections and Powers Law. Some of these measures have passed, while others remain contested.

Unified Retirement Law, Accountability and Justice Law, and General Amnesty Law

These three laws specifically have the potential to advance stability and reconciliation. They are designed to clarify pension rules for Iraqis in need of economic support, reintegrate some former members of Saddam Hussein’s Baath Party into government employment, and release primarily Sunni Arab detainees accused of insurgency but held without trial or conviction.

The Coalition Provisional Authority’s 2003 decision to purge more than 1 million former Baathists from government and deny them retirement benefits created strong political and economic incentives for rebellion among those disenfranchised. What followed was the rise of a predominantly Sunni nationalist insurgency that presaged al Qaeda infiltration of Iraq and the resulting sectarian conflict. Taken together, the Unified Retirement Law and the Accountability and Justice Law remove some of the negative incentives by expanding the number of former Baathists who can re-enter public service or receive retirement pay from the government, though concerns remain about certain aspects of the latter law and its eventual implementation.

The 275-member Council of Representatives, Iraq’s parliament, passed the Unified Retirement Law by a 106-39 vote on Oct. 4, 2007, barely exceeding the minimum attendance of 138 required for quorum. The law grants retired civil servants pensions equal to 80 percent of their salaries and, significant for reconciliation, also provides pensions to members of the former Iraqi Army, many of whom had been involved in the insurgency. The law removes eligibility distinctions between those who retired before or after the fall of the regime of Saddam Hussein.

“It’s removing discrimination based on social status or political affiliation,” said Phil Reeker, Counselor for Public Affairs at the American Embassy in Baghdad.

The Unified Retirement Law paved the way for parliament’s Jan. 12 passage of the Accountability and Justice Law, also known as “de-Baathification reform.” This law reforms the previously sweeping terms of removal of former Baathists from government service, and was passed unanimously by the 143 members of parliament who were present, though several major voting blocs rejected it via abstention. The law features some terms favorable to Sunni reconciliation, including reinstatement of the jobs or pensions of those who were in the bottom six levels of the Baath Party’s 10 ranks, a clarification of pension rules, and a new appeals mechanism. But other facets of the law are considered potentially unfavorable to reconciliation and are strongly opposed by Sunni representatives. Those controversial aspects include the law’s maintenance of a committee that scrutinizes the rehiring of former Baathists and the extension of de-Baathification purges to new areas of government, including Iraq’s judiciary.

Heated sectarian debate characterized efforts to pass the legislation, and probably will mark its implementation. Much of the law’s potential as a step toward reconciliation will depend on who is appointed to the seven-person committee that will oversee its execution.

“There has been a long process of coming to a consensus … that’s not yet run its course,” said a Western diplomat speaking on condition of anonymity. “On one side the Sunni believe it goes too far and that the law, as it is written, could harm people who have committed no crime, simply because they were Baath members. At the opposite end of opinion there are people who feel it does not go far enough in punishing Sunnis. They ask why jobs and civil services positions are being returned to Baath members … when there hasn’t been enough attention paid to what are referred to as ‘the martyrs,’ people who were the victims of the Saddam Hussein regime.”

Almost all Sunni factions initially opposed the bill because of criticism that it did not reintegrate enough former Baathists. The lone exception was the prominent Iraqi Islamic Party, which subsequently relinquished support when members accused the government of ramming an alternate draft through parliament that was harsher to former Baathists. After passage by the Council of Representatives, controversy erupted at the final step of approval – its signing by the executive branch’s Presidency Council composed of Iraq’s president and two vice presidents. Sunni Vice President Tarek al Hashemi of the Iraqi Islamic Party alone refused to sign it, claiming the law embodied a “spirit of revenge” and counterintuitively criticizing that it would unfairly require those in current government service to vacate positions to make way for former Baathists. The bill became law without his signature after the expiration of the 15-day window for the majority of the Presidency Council to veto the legislation.

Ultimately, despite opposition by Sunni leaders in parliament, the practical impact of the law depends on its fair implementation, which US and Iraqi officials cautiously hope for but do not guarantee. Assuming equitable execution, the integration of hundreds of thousands of former Baathists into paid retirement or active government service could aid reconciliation by dulling economic and political motives for discord.

In addition, the parliament passed the General Amnesty Law on Feb. 13 in a package of laws that included the 2008 budget and the Provincial Powers Act. The measure, signed into law by Iraq’s Presidency Council on Wednesday, will pardon and release about 5,000 of the 24,000 predominantly Sunni detainees held in Iraqi prisons for more than six months without charge or more than a year without a court appearance. The law primarily affects prisoners held on suspicion of supporting the insurgency, while excluding those held in US custody, sentenced to death, or imprisoned for terrorism, premeditated murder, kidnapping, robbery with aggravating circumstances, sex crimes, drug trafficking, forgery, or smuggling of antiquities. Most analysts agree that the measure is a significant reconciliation step, given its clear benefit to the Sunni community. It had relatively enthusiastic support from lawmakers in the Iraq Accord Front, the largest Sunni bloc, who indicated that its passage would ease ongoing negotiations for a return to Prime Minister Nouri al Maliki’s ruling government. Members of the bloc walked out of cabinet positions last August in protest over perceived dominance by Shia and Kurdish parties.

Article 140 and the status of Kirkuk

Beginning in 1975, Saddam Hussein’s regime executed an “Arabization” policy on the northern city of Kirkuk: non-Arabs – including Kurds, Turkmen, and Assyrians – were forced out of the city to make way for predominantly Sunni Arab oil workers. In 2005, the drafters of the Iraqi Constitution sought to reverse Saddam’s policy. Article 140 of the document outlines three steps that were to be completed by a December 2007 deadline: a “normalization” process allowing thousands of non-Arabs to return to the city and reclaim seized property, the conduct of a local census, and a public referendum held to decide who has jurisdiction over the city. The vote would specify whether oil-rich Kirkuk will be administered by Baghdad, assimilated into semi-autonomous Kurdistan, or some other compromise.

The United Nations, US Iraq Study Group, and Turkey advocated postponement of the referendum as the constitutionally mandated deadline approached at the end of 2007. The vote has not yet been held. The UN and US believed the Kirkuk referendum too politically sensitive to take place in an already uncertain security environment, while Turkish officials feared that a Kurdish annexation of Kirkuk would boost Iraq’s Kurdish economy, forming the basis of an independent Kurdish state on the border, which in turn could spur an independence movement among Turkey’s Kurds.

But the Iraqi Kurds regard governing Kirkuk as an almost non-negotiable right, and their firm position sets the stage for sectarian discord with the city’s Sunni Arabs, Assyrians, and Turkmen. While the non-Kurdish groups ostensibly desire administration by Baghdad, they are really negotiating a degree of autonomy for the city instead of outright annexation by Kurdistan. Final implementation of Article 140, including the local census and final referendum on who runs the city, remain unsettled matters before Iraq’s government.

National government officials and the provincial Kurdish assembly have approved a plan developed and mediated by the UN to delay implementation of Article 140 for another six months. UN Deputy Special Representative for Iraq Staffan de Mistura is preparing to lead a technical effort to help the parties resolve some of their differences. Some US officials believe the UN is “very well-placed to do this” with the credibility and “technical expertise” capable of producing an agreement. Given that Kirkuk’s Kurdish-dominated local council has threatened to unilaterally break ties with the Iraqi government if Baghdad does not implement the referendum within the six-month extension, Western advisers have their work cut out for them.

The Provincial Powers Act and Provincial Elections Law

The proposed Provincial Powers Act and Provincial Elections Law are other pieces of legislation with the potential for significant political progress. Respectively, the laws codify the distribution of powers between the provincial and federal governments, and outline election schedules and rules for the provinces.

The Provincial Powers Act was passed 83-82 by parliament on Feb. 13 in a package of three laws that included General Amnesty Law and the 2008 Budget. But the bill failed the final step of approval on Wednesday when a majority of the Presidency Council refused to sign it.

“No agreement has been reached in the Presidency Council to approve the provincial elections draft law and it has been sent back to the parliament to reconsider the rejected articles,” according to a statement by the council, composed of President Jalal Talabani, Vice President Adel Abdul Mahdi, and Vice President Tariq al Hashemi. Talabani, a Kurd, and the Shia Abdul Mahdi, a member of the Islamic Supreme Council of Iraq (ISCI), specifically rejected the bill because of articles outlining federal authority to fire provincial governors.

The most recent draft of the bill creates a framework for the distribution of political power between the federal and provincial governments. The bill attempts to resolve a fundamental controversy, similar to the US tug of war between strong federalism and states’ rights. The delineation of power in the law also would clarify an inherent contradiction in the Iraqi Constitution, parts of which stipulate that nonfederal governorates have equal authority to the federal government, while other sections outline federal supremacy.

A secular Iraqi politician speaking on condition of anonymity asserted that the latest version of the bill assigned a large degree of authority to the provinces. “Maybe too much,” the politician ruefully added. But others disagree. Notably, ISCI and the Kurds advocate significant provincial powers; the Shia party advances decentralization to consolidate its current dominance of southern Iraq in the face of a pending electoral challenge by Sadrist rivals, while the Kurds dislike any provisions that diminish authority in their already semiautonomous region.

US strategy in Iraq has already advanced practical decentralization of political power as a mechanism to achieve reconstruction and security gains. Bolstered by the Iraqi federal government’s direct distribution of funds to provincial control, the strategy of empowering diverse provinces and locales facilitates rebuilding and removes incentives for insurgency. The resulting local hierarchies that are part of grassroots political progress would further integrate into an official government framework with the passage of the law. Specifically, the last draft of the Provincial Powers Act outlined the following:

1. The definition of legislatures and the procedures for establishing them. This includes conditions and termination of membership and the powers of provincial, district (local), and subdistrict (local) councils.
2. The rights and privileges of public servants, including pay, general responsibilities, terms of dissolution, and responsibilities of the heads of administrative units. These executives include the provincial ministers, the governor, and the district and subdistrict directors, who are like mayors.
3. Various other provisions, including directives governing provincial and local financial resources, various administrative boards, oaths, and oversight responsibilities.

In many ways, the latest bill is remarkable in its degree of decentralization. But the legislation maintains federal supremacy and oversight while mirroring the national government’s structure at the provincial, district, and subdistrict levels – roughly analogous to US states, counties, and cities. The spirit of the legislation can be found in its definition of a provincial council, essentially a province’s parliament, which would be the highest legislative and oversight authority within the province. The bill would give the council the right to create laws governing its own affairs, as long as they do not explicitly contradict the Iraqi Constitution and any federal laws.

This significant power-sharing scenario is agreeable to most of the naturally decentralized political movements, but significant differences obviously remain about certain aspects outlining federal authority. US officials see long-term challenges because of the complexity and importance of such power-sharing, as illustrated by America’s continuous struggle with similar questions.

“If you look at provincial powers, it’s absolutely crucial,” said Reeker. “But it’s very much an existential thing, like states’ rights in the US. Our founding fathers didn’t get that quite right in the 18th century, and so by the 19th century we had a pretty miserable Civil War, and we continued to work that out and even today there are issues of states’ rights.”

Furthermore, the passage of the Provincial Powers Act was viewed by Iraqis as a precondition for the proposed Provincial Elections Law. The former, as passed by parliament on Feb.13, stipulates that the latter must be passed within 90 days and that elections must take place by Oct. 1, 2008. Despite its subsequent rejection of the Provincial Powers Act, the Presidency Council has stated that plans to move ahead with elections will move forward, though some analysts are doubtful the deadline can be met.

Provincial elections are of especially pressing importance because it is anticipated that they will create a political outlet for the Sunni leaders who previously boycotted the political process and/or engaged in insurgency, yet who have since allied with the US and Iraqi government against al Qaeda in Iraq. The Awakening tribal alliance based in Ramadi probably will dominate provincial balloting, as its politicians are generally considered more representative of the Sunni population than the Iraqi Accord Front.

In addition, provincial elections will shape the ongoing power struggle between ISCI and the Sadrist Movement in southern Iraq. The Sadrists boycotted regional elections in 2005 and now want to challenge ISCI power through the ballot box, while ISCI wants to consolidate its current regional dominance through dramatic decentralization outlined in any final version of the Provincial Powers Act.

Opening the door to provincial representation for the Awakening movement, or Sahawa al Iraq, in Anbar province and new political parties in other provinces will also have implications for national elections in 2009, as will the design of the vote. Though the Provincial Elections Law is yet to be written and passed, some US and Iraqi officials either speculate or assert that the “closed party list” voting construct used in the last national elections will be replaced by votes cast for individual candidates, a change that should soften sectarian divisions and benefit parties with strong individual candidates.

US officials see a pressing need to hold provincial elections soon, believing they must occur before some elements of Sunni society become restless about lacking political power and official recognition in Iraqi society. But significant hurdles remain.

“The elections working groups are working with the GOI [government of Iraq], but they still have to do a rewrite of the elections law before they can even schedule the provincial elections. And there is a question of … [whether to] do them all at once or do them rolling by province,” said Colonel Martin M. Stanton, Chief of Reconciliation and Engagement for Multinational Corps–Iraq.

Hopes for quick provincial elections also are complicated by the lack of an elections budget and an accurate census, as well as drastic population shifts caused by the return of displaced persons within Iraq. The Oct. 1 deadline for elections reflects the urgency of involving local leaders in the political process, but presents a logistical challenge that US and UN officials are trying to address. A December 2007 report to Congress by General David H. Petraeus’ staff detailed US efforts to lay the groundwork for elections that include “working with the UN to assist [Iraq’s Independent High Electoral Commission] in building staff capacity, particularly in public outreach and internal organization; building database capacity that will support new registration; and establishing provincial, district and precinct-level election bodies.”

Potential flashpoints in the design of the elections law involve disputes over personnel who are appointed to the electoral commissions responsible for organizing the vote. On the Shia side, the Sadrists fear that the ISCI will try to rig the process in southern Iraq. And members of the Sunni Awakening movement are calling for the dissolution of the current electoral commission because they believe it is stacked with members of a rival Sunni party who will exercise inappropriate influence to maintain power in the face of questionable popularity.

Collectively, the pending Provincial Powers Act and Elections Law have the potential to make great political headway for Iraqi stability and reconciliation. But the rejection of the Powers Act has thrown progress in this area into significant doubt. Ideally, the parliament will quickly resolve the disputed articles, or at least press ahead with vital provincial elections before the end of the year. Despite the challenging deadline, the prime minister’s office is drafting the Elections Law, and logistical preparations are under way. And while the long-term disposition of provincial and federal power-sharing will undergo metamorphosis after the recent approval and rejection of the Provincial Powers Act, its eventual passage can solidify political outlets for those formerly inclined to civil war or insurgency by codyifing a significant degree of local self-determination. Officials also believe that official decentralization of responsibility could further streamline the country’s reconstruction and security efforts.

A burst of legislative progress … with caveats

While Iraq’s political progress is criticized by many Western political observers in relation to official benchmarks outlined by the Bush Administration and Congress, legislation has begun moving forward, though it often deals with complexities antithetical to quick resolution. In addition, Iraqi lawmakers tend to shun Western-imposed timetables for a variety of reasons, including a sometimes prideful sense of self-determination, the unpredictable process of ethno-sectarian and political compromise, and the practical belief that complex negotiations on long-term solutions should not be rushed to provide short-term political benefit for the US and others. While these attitudes frustrate some Western advisers, others accept and even encourage independence while facilitating progress, and stress the importance of Iraqi solutions to Iraqi problems.

In the end, the stability of Iraq hinges on the maintenance of recent legislative momentum, including: a successful revision of the Provincial Powers Act, crucial provincial elections held before the end of 2008, and the relatively fair, nonsectarian implementation of the brand new laws on amnesty and de-Baathification.