Breaking the Impasse: Article 76 of Iraq's Constitution

Liberty is taking root in Iraq. While this young democracy has yet to form a new government since the March 7th election–over nineteen weeks and counting–the media attention on the current impasse and possible dire consequences it may yield ignores a very important occurrence: the leader of the winning bloc is making constitutional arguments, not threats of violence. While the candidate earning the largest number of votes advances a principled and originalist view of constitutional interpretation, the incumbent seeks a rubber stamp from Iraq’s Federal Court so he may undermine the people’s will and remain Prime Minister. At issue is which of the two candidates gets to attempt forming a government first.

Former Prime Minister Iyad Allawi’s winning coalition beat current Prime Minister Nuri al-Maliki’s bloc with 91 seats to the incumbent’s 89; however, both fell short of the 163 seats needed to secure a majority in the 325-member parliament. A political power struggle has ensued.

Under Article 76 of the Iraq Constitution, the leader of the largest bloc of lawmakers gets the first shot at forming a government. Allawi and al-Maliki both claim to lead the largest bloc, though the incumbent can only make his claim after having formed a post-election alliance that was not registered with the election commission before voters made their choice. Maliki formalized his postelection merger with the Iraqi National Alliance in early June (which includes the Iran-backed bloc led by Moqtada al-Sadr) and now claims the right to form a new government in blatant disregard of the choice Iraqis made at the polls.

In contrast, Allawi’s Iraqiya bloc has not only won at the polls on election day, but maintained their victory after a recount urged by al-Maliki. Allawi has argued that the text of Article 76 is as unambiguous as documents articulating the intent of the constitution drafting committee: the leader of the largest bloc after the voters have spoken is the first to attempt forming a new government. Robert Bork once made the case for originalism (constitutional interpretation focused on giving primary weight to the document’s text and the intentions of its framers) by stating: “[i]f the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.” Indeed, Allawi is taking a principled stand and is pointing to Iraq’s constitution, yet the Obama administration remains silent.

The Obama administration has failed to take a stand on the constitutional issue. By failing to do so, Obama has allowed al-Sadr (and Iran’s) influence to grow in Iraq, and is losing an opportunity to strengthen a fledgling democracy’s young constitution in the process. When Joe Biden was dispatched to try his hand at breaking the impasse this past July 4th, he concluded his trip by highlighting the fact the U.S. was not meddling in the formation of Iraq’s government.

Liberty and politics are two very different things. The Obama administration must promote the former by publicly urging al-Maliki to adhere to his country’s constitution and concede that Allawi gets first pass at forming a new government.

With all the wrangling that has occurred between the political powers in this fledgling democracy, all who doubted U.S. efforts and deemed the Iraq war a failure should be reminded that our sacrifice has brought more than democracy. Liberty is taking root in Iraq, principled leaders are emerging, and the Iraqi people are learning to view their young constitution as the only safeguard to their individual liberties.