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Court Decision Before Iraq Vote May Complicate Result

It may take until July 1st to seat the new government but only if there are NO delays.

BAGHDAD — Ayad Allawi may have been the top vote-getter in Iraq’s election, but a little-noticed court decision may still make it possible for incumbent prime minister Nuri Kamal al Maliki to get first crack at forming a government.

Mr. Allawi won a plurality, 91 seats in the parliament to 89 for Mr. Maliki, in results announced Friday, and it was widely assumed that under Iraq’s constitution, as the head of the bloc with the most seats, he would be asked by the president to make the first attempt to form a government, and given 30 days to do so.

However, on Thursday, the day before the vote results were announced, the prime minister’s office quietly went to the Supreme Federal Court, Iraq’s highest court, and asked for an interpretation of Article 76, which the court issued speedily — and in Maliki’s favor. The court ruled that the president would choose not the leader of the voting bloc with the highest number of seats when the results are ratified, but the leader with the most seats after the new parliament is seated.

That gives both candidates until June to maneuver to win over candidates from other alliances. The candidate with the first opportunity to put together a government has an enormous negotiating advantage, because he has the first 30 days to try to find a ruling coalition. Mr. Maliki, who remains as caretaker until the new government, has the additional advantage of incumbency during the deal-making process. On the other hand, Mr. Allawi could still be given the first chance to form a government if Mr. Maliki cannot put together a majority.

If the first one fails, the second strongest alliance will have just 15 days to try again.

Both candidates, in their initial public statements, immediately began trying to woo away followers of their opponents. “We are in the process of forming a sufficient coalition to form a government, and we have a lot of people who want to join us,” Mr. Maliki said Friday, minutes after results were announced. “If some blocs that exist within the Iraqiya list wanted to come, we would welcome it.”

Mr. Allawi, who heads the Iraqiya list which defeated the prime minister’s State of Law list, responded similarly at a press conference Saturday. “The Iraqiya list is open to all slates, starting with the State of Law list and the Iraqi National Alliance and the Kurdistan Alliance,” he said.

Under Iraq’s election system, a variety of parties form alliances and run together on joint lists, but once parliamentary members are elected, there is nothing to prevent them from changing their allegiances.

The Iraqi supreme court’s interpretation of Article 76 will be controversial, but legal experts said it is binding.

With Mr. Allawi winning not only the most seats in parliament, but also the most popular votes, there could be widespread dissatisfaction among Iraqis if Mr. Maliki is given the first opportunity to form a government. In final results, Mr. Allawi’s Iraqiya list won 2,851,823 votes nationwide, to 2,797,624 for Maliki and 2,095,354 for the Shia alliance, the Iraqi National Alliance. The Kurdistan Alliance took 1,686,344 votes.

Allawi was frankly dismissive. “The Iraqi people have honored the Iraqiya list and chose it to be the basis of forming the new government,” he said at a press conference Saturday. “So if there is another constitution that they want to implement, this is something I don’t know about, this is something new.”

With both Mr. Maliki and Mr. Allawi very close in number of seats they now control, negotiations for forming a coalition could go either way. They need an absolute majority of 163 seats, and neither of the next two largest blocs, the Shiite Iraqi National Alliance with 70 seats, and the Kurdistan Alliance, with 43 seats, could deliver that alone. That increases the importance of a variety of small parties, and minorities like the Christians and Yazidis, who were awarded seats under the constitution even though they won none at the polls.

Despite Mr.Maliki’s favorable supreme court decision, he remains adamant in calling the elections fraudulent and demanding a manual recount, which the Independent High Electoral Commission and the United Nations reject as unjustified. He said he plans to appeal within the 3 day period allowed — also to the Federal Supreme Court, which then has to rule within 10 days.

The fact that Mr. Maliki went to the Supreme Court in advance of the final election results is an indication that he was aware of the possibility that Mr. Allawi would likely win a plurality. Formally, the court said in its decision that the prime minister’s office had asked for “a definition of the term, ‘the parliamentary bloc with the most members’ ” in Article 76. The 211-word-long ruling said the question was whether that term in Article 76 meant the bloc that won the most seats in the election, or the bloc that is later gathered together by the time the new parliament meets — and it decreed that the latter interpretation was the correct one. The court said it based its decision on an analysis of the wording of the article and of other similar articles in the constitution, but it did not go into detail.

The dispute over who gets the first shot at forming a government promises to make an already protracted process even more complicated. First the final election results have to be certified by the Supreme Court, which legal experts say may take until late April. That means the new parliament must meet by May 15 and choose a new president, who then has 15 days to choose a prime minister. The prime minister then has 30 days to try to appoint his cabinet—if he can — meaning the entire process could take until at least July 1,assuming none of those deadlines are missed — as they often have been in the past.

http://www.nytimes.com/2010/03/28/world/middleeast/28iraq.html