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Iraqi Government

Iraq is a parliamentary democracy with a federal system of government. The 2005 Iraqi constitution guarantees basic rights. The executive branch consisted of the Presidency Council (one president, two vice presidents -- an arrangement that changed after the March 2010 elections to a single vice president) and a Council of Ministers (one prime minister, two or three deputy prime ministers, and about three dozen cabinet ministers). The president is the head of state, protecting the constitution and representing the sovereignty and unity of the state, while the prime minister is the direct executive authority and commander in chief. The president and vice president[s] are elected by the Council of Representatives. The prime minister is nominated by the largest bloc in the Council of Representatives. Upon designation, the prime minister names the members of his cabinet, the Council of Ministers, which is then approved by the Council of Representatives. The executive branch serves a four-year term concurrent with that of the Council of Representatives.

In October 2022, the Iraqi parliament approved a new government with a mandate to jump-start political reforms. Among its priorities is the amendment of Iraq’s problematic constitution. Prime Minister Mohammed Shia al-Sudani made the first step in this process by appointing Hassan al-Yasseri as his constitutional adviser. Meanwhile, the parliament announced that it will form a constitutional revision committee.

This would not be the first time that Iraq attempts to reform its constitution since it entered into force in 2005. Constitutional revision committees were formed in 2009 and 2019, but both of those efforts petered out, mainly as a result of a failure to build momentum. If this latest initiative is to be successful, lessons should be learned from the previous failed attempts to amend the constitution, but also from positive examples of constitutional reform in other countries.

When it launched a constitutional process following the end of apartheid, the South African government invited the general population to express their priorities in writing. Some 1.7 million submissions were received, which the drafters took into account. South Africans were motivated to participate because the relevant authorities led a successful campaign to generate interest in the process and because there was a general feeling that the constitution could bring real change to the country.

In 2005, during Iraq’s own constitutional process, a public outreach body was established but it came to be dominated by one political party – the Islamic Supreme Council of Iraq (then known as the Supreme Council for the Islamic Revolution in Iraq) – which sought to skew the results in its favour. As a result, no one took the initiative seriously.

Inclusivity is also about giving the process more depth, by providing specialist groups with decision-making authority on how the constitution can and should be shaped. The example of Kenya’s 2010 constitution is instructive. During the drafting phase, a committee of experts was given virtually equal decision-making power as the parliamentary committee. The end result was a constitution that allowed Kenya to make significant progress in strengthening the rule of law.

In 2019, Iraq witnessed the largest popular uprising in the country’s history. The demands of the protesters should have triggered political impetus to reform the relationship between citizen and state, to deepen the protection of socioeconomic rights and to revolutionalise Iraq’s anti-corruption framework. Instead, the constitutional revision committee that was established focused most of its attention on debating the structure and system of government and paid very little attention to individual rights and the state of public services.

One of Iraq’s major flaws has always been that reform efforts are dominated by a small circle from within the political class, and that any input from outside that small circle is often ignored. That manner of proceeding has contributed to significant weaknesses in policymaking, a trend that must be overturned by allowing others to wield real influence over the process. The 2019 constitutional reform process, started on the wrong footing. The first meetings of the relevant committees were dedicated to discussing alternative wording of specific provisions.

One of the main problems Iraq has been experiencing throughout its modern history is that the constitution theoretically provides for civil and political rights, but does not clearly indicate what constitutes a legitimate limitation of those rights and what does not. For example, while freedom of expression is theoretically guaranteed, the constitution does not provide policymakers or the courts with any guidance as to whether or not the right to criticise public officials or accuse them of corruption is protected. The absence of clear guidance has encouraged policymakers to unreasonably restrict rights and has robbed the courts of the tools that they need to curb executive overreach.

Equally important is the constitution’s oversight framework, which is ill-conceived, poorly worded and full of contradictions. The constitution’s highly imperfect arrangements have made it easier for corruption to spread through the state virtually unchallenged. Each of the country’s main oversight institutions (the audit institution, the anti-corruption body and the courts) need robust mandates and far greater guarantees of independence, including greater control over their budgets and the appointment of senior staff.

Iraq’s federal system will remain a source of instability unless a new bargain is struck between the central government and the Kurdistan Regional Government. Above all, both sides must understand that federalism is not just a means to carve out decision-making authority across territory and political lines. Rather, it is a means through which social solidarity can be protected within the borders of a single country.

In the years following the overthrow of Saddam Hussein, governance of Iraq passed through several stages. The Coalition Provisional Authority (CPA), established by the United States to govern the country immediately following the occupation, officially transferred sovereignty to an Interim Iraqi Government in June 2004. This was a first step in building a new, indigenous government structure in Iraq. The Transitional Administrative Law (TAL), functioning as an interim constitution until the end of 2005, called for Iraq to have a permanent republican, federal government system; power was to be shared among the central government, 18 governorates (provinces), and local and municipal governments. The autonomy of one region, Kurdistan, was specifically recognized. In January 2005, national elections to seat an interim parliament were a second step in establishing a permanent government. That parliament built the framework for the writing of a new constitution and the election of a permanent legislature.

After some delay, in October 2005 a two-thirds majority of voters ratified a new constitution, which had been created to replace the TAL by a 55-member panel representing the three main factions: Kurds, Shiites, and Sunnis. Although some elements remained in dispute, the new charter embodied the same fundamental elements as the TAL, describing Iraq as a "multiethnic, multi-religious, and multi-sect country."

In April 2005, the following individuals were chosen to lead the interim government through the approval of a constitution and election of permanent national officials: a Shia, Ibrahim al Jafari, as prime minister; a Kurd, Jalal Talabani, as president; and a Sunni, Hachim Hasani, as president of the National Assembly. Following approval of the constitution in October and parliamentary elections in December 2005, formation of a permanent government began. For a transitional period of one session of the legislature, executive power remained with a three-person Presidential Council consisting of the president and two vice presidents. The council's actions required unanimity among its three members. Talabani remained president; his vice presidents were the Shia Adil Abdul Mahdi and the Sunni Tariq al Hashimi. In the spring of 2006, Prime Minister Nouri al Maliki, who had replaced Jafari, was able to end months of political deadlock by gaining parliamentary approval of a full slate of 36 ministers, who constituted the first permanent government since 2003. Four ministers were women. In an attempt to broaden support for his government, in mid-2006 Maliki established the Supreme Committee for Reconciliation and National Dialogue, which included members from a wide cross-section of social groups.

Iraq's legislative branch consists of an elected Council of Representatives. After the 2005 elections, the Council of Representatives consisted of 275 members, each of whom was elected to a four-year term of service. The Council of Representatives convened for the first time under the new constitution in March 2006. Prior to that, in 2005 a unicameral, 275-member parliament, the National Assembly, had been elected as a transitional legislature to take the place of the 100-member Interim National Council, which the Coalition Provisional Authority had named in mid-2004. In the elections of January 2005 that chose the assembly, the Shia United Iraqi Alliance won 140 seats, the Democratic Patriotic Alliance of Kurdistan (a coalition of the two major Kurdish parties) won 75 seats, and a secular bloc, Iraqi National Accord, won 40 seats. Having largely boycotted the election, the substantial Sunni minority gained only 17 seats, but the Sunnis were allotted the position of speaker of parliament in a power-sharing compromise.

Upon ratification of the 2005 constitution, the parliament organized a new round of parliamentary elections leading to the formation of a permanent government. The elections of December 2005 revised somewhat the power balance among the major factions, adding substantially to Sunni representation. The United Iraqi Alliance won 128 seats (eight seats short of a majority), and the newly formed Sunni Iraqi Accord Front won 44. The Kurdish party won 53 seats, a loss of 22, and Iraqi National Accord won 25, a loss of 15. Mahmud Mashhadani, a Sunni, was elected president of the Council of Representatives in April 2006.

A new electoral law in 2009 increased the size of the Council from 275 members (formerly 230 seats from party lists in each governorate and 45 national compensatory seats) and replaced a closed-list system with open party lists. Under the new system, 310 seats are apportioned among 18 governorates, 7 are nationwide compensatory seats, 8 are reserved to minority groups in specific governorates (Christian (5), Sabean (1), Shabak(1), and Yizidi(1)). The Christian seats are, however, voted for across the national constituency. Constitutionally, the membership of the Council is to seek to achieve at least 25% (82 seats) representation of women. The 7 national compensatory seats are awarded to lists based on the country-wide proportion of seats won at the governorate-level tier. The Council election also allows for the participation of out-of-country voters (OCV), who are able to vote at the governorate-level tier. At least one-quarter of the members of the Council of Representatives must be female. The responsibilities of the Council of Representatives include enacting federal laws, monitoring the executive branch, and electing the president of the republic.

The Iraqi parliament approved a new election law 24 December 2019 that was intended to pave the way for greater inclusion of independent political candidates, considered a key demand for protesters. The law ended the practice of political parties running on unified lists, which allowed them to easily win all seats in a given province. The new law divided Iraq's 18 provinces into multiple districts and allocate one parliamentary seat per 100,000 people. Hundreds of thousands of anti-government protesters had called for sweeping changes to Iraq's political system, which was put in place in the wake of the 2003 US-led invasion of Iraq. The protesters blamed the system for widespread corruption and rampant unemployment.

Prominent Shiite cleric Muqtada al-Sadr hailed the new law as a step in the right direction, saying it satisfies a key demand for protesters. "It will get rid of all corrupt parties," al-Sadr said. The new law also allocates at least one quarter of parliament's seats to women and establishes a quota for religious minorities, including Christians and Yazidis.

Iraq's judicial branch is independent, and is under no authority but that of the law. The federal judicial authority is comprised of the Higher Judicial Council, Federal Supreme Court, Court of Cassation, Public Prosecution Department, Judiciary Oversight Commission, and other federal courts. The Higher Judicial Council supervises the affairs of the federal judiciary. The Federal Supreme Court has limited jurisdiction related to intra-governmental disputes and constitutional issues. The appellate courts appeal up to the Court of Cassation, the highest court of appeal. The establishment of the federal courts, their types, and methods for judicial appointments will be set forth by laws enacted by the Council of Representatives.