Global Policy Forum

By Becky Branford

The painfully slow process of appointing top government posts in Iraq has drawn attention to the country's complicated new political system drafted under occupation. It is no surprise that a Kurdish president has Shia and Sunni deputies, or that a Shia has become prime minister as a Sunni becomes speaker of parliament. What some critics say is a "neo-colonial" imposition by the US and others are calling a sectarian carve-up of power is largely dictated by the legal system which aims to prevent one party or community taking a leading role - even if it has won an election.

Defenders of the new democratic apparatus say it is the only way to ensure consensus and compromise between political groups which history has divided. At the root of the debate is Iraq's Transitional Administrative Law (TAL), the so-called "interim constitution" hammered out by selected Iraqi leaders under the eye of the occupying powers more than a year ago.

'Super-majorities'

The TAL demanded that two-thirds of the 275 lawmakers in Iraq's new National Assembly agree on the identity of the new leadership - a presidency council, made up of one president and two vice-presidents. This council then approves the prime minister and cabinet.

The TAL two-thirds clause enraged Professor Juan Cole, author of a widely read and respected web diary on events in Iraq. He calls it a "neo-colonial imposition" which the Iraqi public "were never asked about". In countries from the UK, to France, to India, argued Professor Cole, a simple majority is enough to form a government. "In fact, I wouldn't be surprised if the two-thirds super-majority is characteristic of only one nation on Earth, i.e. American Iraq. I fear it is functioning in an anti-democratic manner to thwart the will of the majority of Iraqis, who braved great danger to come out and vote."

The requirement that two-thirds of the parliament approve the new leadership is not the only controversial aspect of the TAL.

US friends

Day-to-day legislation may be passed in the parliament by simple majority, but these decisions can be vetoed by the presidency council. The parliament can push through the legislation only by mustering a two-thirds majority, which again gives considerable power to minority parties. A three-quarters majority is required to amend clauses in the TAL itself. And once the National Assembly achieves its primary task and presents the Iraqi public with a draft of a new, permanent constitution to approve in a referendum, legislators can be sent back to the drawing board if two-thirds of voters in three of Iraq's 18 provinces reject it.

The left-wing commentator and Iraq-watcher Naomi Klein criticises all these measures for giving Iraq's minorities power beyond their numbers, and she blames Washington. A US "terrified at the prospect of an Iraq ruled by the majority of Iraqis", she wrote in the UK's Guardian newspaper, was tilting the scales of power to allow the US-friendly Kurdish parties the power to shoot down parliamentary decisions they did not like.

Confidence-building

But Sir Jeremy Greenstock, the former UK special representative in Iraq who was there when the TAL was being drafted, strongly defends the decision to give minority parties extra power. "You're starting a new system and you're trying to glue together peoples who haven't lived together and worked together for a long time," he told the BBC News website.

"It's not unusual for minorities to have things weighted their way until... they can have confidence in the system. "In a country like Iraq, even more do the minorities need to have this confidence. They've never in their history seen the majority ruling for everybody. The majority, or the most powerful, have always ruled for themselves." This view is backed by Jeffrey Jowell QC, professor of public law at University College London and a constitutional expert, who says such weighting is a commonly used device in nation-building. He points out similar provisions in the constitutions of Bosnia-Herzegovina and Serbia and Montenegro, and many Eastern European countries.

Sectarian blocs

Another expert, Anne Alexander of Bristol University's Department of Politics, partially accepts this argument. It is true, she says, that Kurdish parties need an incentive to prevent them saying, "Stuff the parliament, stuff the government". On the other hand, she says the Kurdish parties are likely to use their power under the TAL to promote interests which in many cases coincide with those of the US.

For example, the Kurds oppose any timetable for the withdrawal of foreign forces from Iraq, as does the US, and will probably use any representation in the Iraqi government to resist such a call. "Clearly the major Kurdish parties are in a strategic alliance with the US," she says, while noting at the same time that the US is unlikely to support Kurdish desires for full independence.

Overall, she says Iraq's system of government risks institutionalising divisions rather than overcoming them. "In this sort of system, the elections become an expression of the relative size of the different ethnic and religious groups, and enacting legislation is all about manipulating alliances and tensions between sectarian blocs," she says. "I don't see sectarian conflict as endemic in Iraq, but I think that the kind of framework set out by the TAL does more to encourage it than prevent it."