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The Kurdish-Shi'i Alliance and New Legislation in Iraq

JURIST Guest Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that despite appearances, the Iraqi parliament's adoption of a budget and other key laws on provincial administration and amnesty emphasizes rather than diminishes the regional and sectarian divisions in the country...

The Iraq Parliament has finally agreed on its budget for this year, in a manner that seems to demonstrate that all of the rhetoric about a potential shakeup in alliances and shifts of power in Iraq might just be overblown. It seems as if the same players, the Islamist Shi'i Alliance, and the Kurdish Coalition, have been successful at making a deal and forcing all others to play along. This hardly bodes well for the creation of a broader national consensus on so many of the issues that continue to divide the country.

By the way of background, at the time of the drafting of Iraq's Constitution, the centers of power in the new Iraq established themselves and have yet to be seriously shaken. The Americans had hoped that some sort of nationalist secular alliance, composed of Shi'is such as Ayad Allawi, Sunnis such as Adnan Pachachi and the Kurdish parties, would be able to act as a useful counterbalance to the Islamist Shi'a. It was hoped that they would ensure that the secularism largely reflected in the interim constitution drafted under American occupation, the so-called Transitional Administrative Law ("TAL"), would be maintained in the permanent Constitution.

This failed, partly because the Allawi-Pachachi alliance, currently at less than 10% of Parliament, does not have the broad support necessary to make it a significant player, but more importantly, because the Kurds were less interested in the fate of Iraq than the fate of their own autonomy within it. The Islamist Shi'a, aware of this, offered the Kurds a deal: leave the Constitution to us, and we will give you the very broad autonomy that you desire, including the ability to exempt yourselves from almost any law that the national Parliament passes. The Shi'i Islamic party is about 40% of the Parliament, and the Kurds sensibly enough did not see it in their interests to challenge that 40% and ally with the much smaller secular parties when they were offered the autonomy they desired, which ultimately would permit them to be as secular as they wished in their own region. And thus was the Constitution drafted, with Islam given a much more prominent role than it had been under the TAL. The Americans still of course exerted and continue to exert influence in Iraq, which probably limits to some extent the role of Islam under the Constitution, but they could not prevent a fundamentally important provision of the new Constitution, which requires that all legislation be in conformity with the universal tenets of the shari'a.

From that time, this Kurd-Islamist Shi'i alliance has held strong. Recently, however, there has been talk of cracks in the coalition, that the Kurds may have overreached in their excessive demands, that the Shi'a Islamists were breaking apart, and that a new nationalist alliance that transcended ethnic and sectarian boundaries might be formed. But the budget debate shows quite clearly that all of this talk might be premature.

The source of the recent budget impasse had to do with the amounts of money reserved to the Kurdish region by the federal government. Under law, for some time, that amount has been set at 17%. Pointing to recent election data, which seemed to show that the voters in the region numbered about 13% of the total voting population, Arab parties of various sorts sought to lower the Kurdish quota to 13%. (The Kurds are closer to 20% of the population by voting records, but many do not live in the Kurdish region, hence the 13% figure.) The Kurds argue that voter percentage is hardly the appropriate measure of population and that until a census is completed (which given Iraq's current condition is likely to take some time), their quota should remain 17%. Their failure to convince anyone else to go along for a few weeks was supposedly evidence of their weakening.

Just as positions were beginning to harden, however, the alliance reasserted itself. The occasion was another law, the provinces law, where at least some significant portion of the Shi'a Islamists (though not all of them) sought to ensure that the province heads would be dismissed not by a majority of the national Parliament, but rather by local provincial councils. This is of some importance to some Shi'i Islamists, most importantly from the Supreme Islamic Council of Iraq, who want ultimately to see more power devolved to the southern provinces. They did not want to have province heads with no local support installed by command of Baghdad. But the change would not affect the Kurdish region, and so one would imagine the Kurds would not really care very much about it. The Sunnis and the secularists were viscerally opposed, and it was therefore believed that between Sunni and secularist opposition, Kurdish indifference, and a divided Shi'i Islamic alliance that the measure would pass and a nationalist alliance finally prove itself sustainable against divided and confused Shi'i Islamists.

Thus, it came as something of a shock when the Kurds joined the Supreme Islamic Council in a walkout of Parliament on Tuesday, thereby denying a quorum to those who might otherwise have been able to pass the provinces law. The Sunni Speaker of Parliament became quite upset, but there was little he could do. As he and his party no doubt stewed in anger, the Supreme Islamic Council announced that they had been persuaded by the Kurdish position on the budget allocation, and all became clear. The same alliance had reasserted itself. A day later, the Parliament passed both laws, the budget with the 17% allocation and the provincial law with the modification that permitted a province head to be removed either by the Parliament on recommendation by the Prime Minister or by a vote of the provincial council, effectively giving the local councils a veto over any central government selection. Kurdish autonomy was maintained, and Shi'i autonomy expanded. To bring the Sunnis on board, an amnesty law was also passed.

In some ways, I suppose this is progress, in that the country did come together to reach an agreement on three laws. But quite clearly, the same alliance that created this legal order enacted these laws in the forms that they appear, and the same factions disputing the same issues found the same route to a solution, one that emphasizes rather than diminishes the regional and sectarian divisions in the country. At least for now, the nationalist alliance is nowhere to be seen.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government. He has a blog on Islamic law at http://muslimlawprof.org


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