The Trouble with Iraq's Constitution

Crossposted with Effective Altruism Forum

1 Introduction

Iraq is currently facing a political crisis due to conflict between proponents of majoritarian and consensus government formation. An impasse in parliament has prevented government and budget formation for seven months since the election. While prolonged negotiations are common in Iraq between election and government formation, this latest conflict has ignited an intractable debate about how government formation should occur. In this blog post I explain why majority government is so controversial, and how the Iraqi constitution prevents any compromise on the issue. I then argue that minor alterations to that constitution would allow Iraq to move forward without risking political violence.

Iraq’s current government-formation mechanism is the Muhasasa Ta'ifeya (Muhasasa means quota). Under the Muhasasa, the government is divided with ministries and rents distributed to each faction in parliament roughly following their vote share and armed strength. It reduces inter-factional violence by dividing the state among each party in government, such that none prefers fighting to compromise. However, the Muhasasa Ta'ifeya reduces the incentives to provide public goods, since parties retain their power by delivering benefits to a narrow set of local supporters (rather than competing with opposition parties). Moving to majoritarianism would give elected leaders an incentive to provide public goods to increase their vote share in order to stay in the ruling coalition. But opponents of majoritarianism argue the change would remove the divisibility that reduces violence (yes, that is a threat).

The parliament has been stalemated because selecting a president requires a two thirds majority for quorum, similar to the filibuster. All subsequent measures and confidence votes require simple majorities, so the 17% of parliamentarians needed for the two thirds have no mechanism to enforce an agreement with the next prime minister. Furthermore, the excluded parties have their own militias, patronage networks and protestors who could do great damage if they chose. Since the constitution has weak minority protections, violence from the opposition is plausible if a majority government somehow formed. Even if Iraq calls a new election, as seems likely, that would not resolve this impasse because the current constitution is flawed.

Iraq can resolve this impasse by a deal between the two coalitions which removes the quorum rule but divides the prime minister’s current power between a majority leader and a consensus prime minister. The majority leader would appoint ministers responsible for public-goods ministries like electricity and transport, subject to a simple-majority appointment and removal. Meanwhile ministries such as defense, interior and foreign affairs have the potential to destabilize the balance of power, and would be selected by a prime minister with a super-majority confidence threshold. The scheme offers enough consensus protections to avoid destabilizing exclusion from rent distribution, foreign policy and military policy while introducing meaningful competition and accountability to service provision.

2 Consociation in Iraq

Iraq’s current Muhasasa Ta’fiya system is effective at controlling violence because it makes the state budget and power divisible. Each armed group can initiate violence and impose costs on the others, but fighting is costly and risky. As a result, there usually exists some division of power and rents which every faction prefers over fighting. The Muhasasa matches any distribution of violence power with a distribution of the state budget. Super-majority governments also have high barriers to making any collective decision. This limits the ability of coalitions to pass policies that damage the other armed groups as a power consolidation strategy. While the Muhasasa has become unpopular in Iraq, that ability to reduce violence is a highly valuable.

At the same time, consociation is rare globally because it gives weak incentives to provide public goods. When a faction controls a ministry or agency they face tradeoffs between public goods and club goods for their own supporters. Public goods, like roads, economic growth and education are not excludable for other factions. Club goods and private goods can be targeted only at the faction base and include high-pay low-effort government jobs, money stolen from contracting, or excludable services like healthcare.

Each faction leader has strong incentives to provide club goods. Faction leaders face competition from challengers within their faction. Since club goods benefit just the supporters and don’t “waste” resources on the entire people, they are more efficient for rewarding the faction base. Embezzling the money for road construction and paying it to supporters gives your faction 100% of the value, while actually providing high quality roads would disperse the value across the entire Iraqi people. For a faction with a 10% share of citizens, road construction must be 10 times as effective as cash handouts to be worthwhile. Any politician who declines to mismanage his ministry for his supporter’s exclusive benefit will face an internal challenger who offers more to those supporters. Public governance becomes a prisoner’s dilemma; each faction leader can benefit his own faction through club goods, but hurts the others by underproviding government services. All are worse off in this equilibrium, but providing public goods makes a faction individually worse off.

Meanwhile, the signaling value of public goods is low. Normally, politicians provide public goods to increase their vote share by signaling their ability and benevolence to voters. But faction leaders have little reason to increase their vote-share under Muhasasa; Suppose a neighborhood switches affiliation to join some faction. The faction may gain 2% of the votes in the parliament and with it 2% of the rents. But the faction gains more mouths to feed in exact proportion. The faction leaders have more opportunities to skim off the top, but the gain is modest. Compare with the German bundestag, where the ruling CDU/CSU party declined by a few percentage points and found itself completely excluded from federal power.

Iraq’s parties are often maligned as corrupt. To the extent that corruption means transferring funds earmarked for public good provision into private hands, that is accurate (GAN, 2020). But transferrign public goods to club goods is incentivized by Iraq’s Muhasasa system, it is not an individual moral failing. Changing that corruption will require changing the incentives from the government formation process[1].

3 The Immediate Situation

Perhaps unsurprisingly, Muhasasa has proven unpopular. In 2019 Iraq began its largest non-violent protest movement since 2003, the Tishreen movement. The Tishreen movement is a cross-sect coalition of young people opposed to the poor public services and consensus government. Their protests were met with violence, including 600 extra-judicial killings, but they eventually forced early elections.

This movement quickly attracted the attention of Moqtada Sadr, powerful faction leader and religious figure, with a base in poor Shia neighborhoods. Like the other factions, the Sadrist movement combines a political party, patronage network, business community and armed group (currently inactive) into one organization. After the Tishreen movement, Sadr capitalized on public anger to launch a pro-majority campaign in the 2021 elections.

Sadr’s strategy succeeded, and he won his greatest victory yet with 73 MP’s for his bloc alone. The Tishreen movement received less than 30 seats due to poor organization, although they received over a million votes. Pro-Iran Shia parties underperformed partly due to voters defecting for independent Tishreen candidates.

The Sadrist victory allowed them to form a new simple-majority coalition called the “Saving the Homeland Alliance” (SHA). The SHA is a coalition of Shia, Sunni and Kurdish political parties, satisfying the traditional Iraqi convention that the president be Kurdish and the speaker be Sunni. The coalition excludes several Shia parties, particularly those most associated with Iran.

Sadr’s proposal has much to commend it. Majority governments mean that each party is in serious danger of finding itself excluded. That gives governing parties a strong political survival incentive to attract swing voters and convince the opposition to stay home, which is easier done through public goods than club goods (public goods become more efficient as the number of beneficiaries rises). Meanwhile, excluded parties will need to develop new political strategies to cope with their reduced patronage resources. That would encourage them to build programmatic appeals.

However, despite possessing a simple majority in parliament, Sadr is unlikely to form a government. The Coordination Framework (CF) is a coalition of Shia parties opposed to majoritarian government, who currently control just over a third of the MPs. Currently the CF is holding up cabinet formation by refusing to vote in the president (traditionally a Kurd). This requires two thirds of parliament to form a quorum.

With no president, the parliament cannot select a prime minister, and by extension cannot select a new council of ministers. That also means no new budget. For the past 7 months, the previous governments ministers have continued to serve and the 2021 budget has been rolled over month by month. As the price of oil increased, Iraq has been unable to adjust it’s budget so tens of billions of US dollars have accrued in government accounts unspent. While in gridlock, no budget for 2022 can pass and no actor can enjoy the windfall of high oil prices (Wasserman, 2022).

4 The Problem With the 2005 Constitution

Even with a new election, it is difficult to see a majority government forming under Iraq’s current constitution. This is true even assuming each actor follows the constitution explicitly and none resort to violence. The two-thirds quorum rule allows a minority to prevent government formation by halting the selection of a president. To overcome this, the formateur must convince 17% of MPs to attend the session, even though those MPs will not be needed in any future motions under the government. After the president is selected, the simple majority coalition will be free to give themselves every ministry and give none to that 17%. But if no extra 17% attend, the previous governments ministers continue to serve, so they have access to patronage. Effectively, a large group of MP’s must voluntarily vote themselves out of power on the basis of an unenforceable promise from the formateur. No wonder members of the Coordination Framework have declined to nominate the president these past 7 months.

Under the rule-of-law assumptions, government formation requires a 17% bloc to prefer the formateur’s promise (and an updated budget) to the status quo. The only plausible scenario is for the Tishreen movement to provide that extra bloc, as they currently have no ministries to lose. But that outcome leaves the Tishreen bloc no leverage over the government afterward.

If we relax the assumption of rule-of-law, the situation is bleaker for majoritarianism. Since 2005 Iraq has had supermajority governments not because the constitution required them, but because the heads of state feared the violence that excluded factions would enact. To convince them not to fight, the opposition must have some policy areas and rent streams protected from the majority.

5 Improving on the 2005 Constitution

Under the current constitution, forming a majority government gives no constitutional protections to the excluded factions, but forming a consensus government cannot satisfy the Iraqi people’s demand for accountable service provision. Any compromise between the two extremes depends either on the formateur’s personal commitment or on strength of arms, not constitutional protection. Moreover, any subsequent election under the same rules would face the same problem of needing a disposable super-majority. Instead, Iraq should alter its constitution to give enforceable protections for minority parties on key security and distributive issues, while transferring control over most service ministries to a majority government.

I briefly sketch of such a reform here, acknowledging that many important details must be left aside for brevity.

First, Iraq should elect two sets of leadership by different mechanisms. First, the prime minister is approved via a two-thirds supermajority rule. He would then follow the legacy Muhasasa system in distributing appointments to a certain subset of ministries and their revenue (discussed below). The no-confidence threshold for the prime minister may be reduced to give smaller parties greater leverage.

In separate sessions, the same parliament would elect a majority leader. As Iraq already has a prime minister, president and speaker, only the title “majority leader” is left for a new position. The majority speaker would propose a cabinet to their ministries for approval by a simple majority vote with a simple majority quorum rule. Majorities can be withdrawn by with no-confidence votes following Iraq’s current no-confidence mechanism. A constructive vote of no-confidence rule could be inserted if government collapse becomes too frequent.

By keeping a single parliament, this solution ensures a more stable alignment of policy power and violence capacity. If Iraq instead elected a separate upper and lower house, voters may split their votes between programmatic candidates to one and factional candidates to the others. This would leave the more programmatic house weak in violence capacity because factional candidates have better access to armed groups. An aggressive faction could then use the threat of violence to unravel the constitutional order. By keeping a single parliament, Iraq ensures the majority leader maintains roughly half the violence capacity.

5.1 Powers of the Consensus Government

The division of powers between the consensus and majority governments must convince the Coordinating Framework to accept the arrangement by protecting their power base and rents. At the same time, the majority leader must be powerful enough that parties compete for the prize by running their ministries well by foregoing rents. Each must also be able to operate independently. It is a difficult tightrope to walk.

Those ministries which can disrupt the balance of power should be consensus. A majority leader could use the ministries of Defense and Interior to shift the balance of power, and so must be part of the consensus government. The Ministry of Foreign Affairs should be part of consensus government to satisfy Iraq's powerful and potentially obstructive neighbors. The consensus government should continue its mutual veto over defense and foreign policies.

The Coordination Framework is unlikely to agree to any revision unless their access to rents is assured by more than just the word of the majority leader. The majority leader will inevitably possess a significant chunk of rents through their policy control, from directing contracts to friends to setting tariffs to reward interest groups. To balance the majority coalition's rents, the consensus government should receive significant rent production mechanisms.

One option is to give the consensus government control over those ministries which provide excludable goods like the Ministry of Health or corruption opportunities like the Ministry of Oil, but this increases policy distortions from corruption. A second possible mechanism is Community Development Funds (CDFs), which are moneys distributed at the discretion of parliamentarians. This is a popular trend in Sub-Saharan Africa (International Budget Transparency, 2010). CDFs legalize parliamentarians spending the state budget on private and club goods to their most important supporters. This has the obvious downside of making corruption easier. However, by institutionalizing these transfers it will be more difficult for the majority leader to renege on the promised distribution, which increases the CDF’s willingness to join.

5.2 Powers of the Majority Government

If too few powers are devolved to the majority leader, then the majority leader no longer has an incentive to provide public goods. The incentive for public goods comes from an increased probability of being in coalition in the next election cycle: if only small minority of ministries are competitive, why forego valuable rents today. Also, if the prize is too small voters may not distinguish the majority ministries from consensus ministries.

The optimal ministries for the lower house have high visibility of outcomes, few opportunities for corruption and provide valuable public goods. The ministries of electricity and communications are good options because citizens can easily observe the consistency of power generation and the expansion of cellular service.

The majority leader would also require the ability to fire public sector workers in their ministries. This could be a sticking point in negotiations as the minority fears a purge of their appointees. One solution is to set a limit on the absolute number of firings per ministry of 1% of employees. Since each employee is at risk, they have an incentive to perform until the limit is reached, but a factional purge would be impossible.

5.3 Budget Setting

Control of the budget is difficult because any party could use it to defund their rival’s government sectors, rendering the power sharing mechanism irrelevant. At the same time, Iraq's budget badly needs to be updated given fluctuations in the price of oil. The accumulation of billions of USD in Iraq's cash accounts is a major incentive to reach an agreement for all parties. A simple solution would be for budgets to require a three-quarters majority in consensus sessions of the parliament. There is no need for the majority government to hold a veto since they would have a blocking majority in the consensus sessions anyway.

6 Conclusion

Iraq's current institutions offer no enforceable compromise between consensus rule and majority rule. The popularity of Sadr's current farming shows that many Iraqi's oppose the consensus system. With no path to compromise, violence between these two groups is difficult to avoid and already protests are escalating.

Many will object that Iraq should keep its constitution constant to sustain its power. After all, if every election leads to a new constitution, the constitutions have little enforcement power. I sympathize with this argument, but it wrongly assumes that Iraq has been implementing the 2005 constitution. Iraq’s constitution is strongly majoritarian, being based closely on the British system. The actual distribution of power and selection of laws has always followed a set of customary norms for mediating intergroup disputes, more than the actual constitutional order. Bringing the constitution closer to Iraq’s actual collective decision mechanisms is the only way to make it relevant.

This proposal allows Iraqi citizens to observe and compare the performance of competitive and consensus ministries. If competitive ministries like transportation outperform their peers and previous selves, this will build consensus in Iraq about a path toward development. Furthermore, Iraqi’s can observe the difference in performance between majority and consensus ministries, which would inform future institutional design.

[1] But majoritarianism is not sufficient to end corruption alone either. Iraq has weak peer enforcement among politicians and public servants. The social contract is built on government jobs (a club good) to the detriment of service provision. Introducing real electoral competition is just a start to a longer process.