Objective 3: Electronic Legal Framework

Accomplishing Objective #3

The third objective of the Grant was to ensure the development and implementation of Iraq’s electoral legal framework, with particular attention to conducting parliamentary elections. The Project’s work on the electoral legal framework included analysis of: a political party law; political finance law; referenda laws that would govern constitutional amendments and the formation of regions; media and elections legislation; election technology law; and electoral justice. The Project’s work on the electoral legal framework also addressed electoral issues associated with special referenda and the contemplated creation of the Federation Council.

The principal electoral legal framework work of the Project was on laws dealing with election of COR members. In addition, pertinent laws regarding elections and referenda in Kurdistan and other requests for analysis and papers were addressed, including:

  • preparations for and conduct of the Kurdistan regional elections which were held on July 25, 2009;
  • a possible referendum on amendments proposed to the Iraqi Constitution (which ultimately was not held);
  • a possible referendum on the Status of Forces Agreement between the U.S. and Iraq (which ultimately was not held);
  • development of a new Political Parties Law to replace the existing law enacted as CPA Order 97; and
  • analysis of a proposed election technology law.

Key Activities Accomplishing Objective #3
There were four electoral legal framework team members who were in Baghdad during the Project period.  The resident Electoral Law Advisor, Jaye Sitton, was based in Baghdad.  When she was on leave, she was replaced by Sean Gralton so there was always an election law expert in residence in Baghdad.  The other two Electoral Team members who travelled to Baghdad were Regulatory Law Advisor Marla Morry and Senior Electoral Advisor Jeff Fischer.  Ms. Morry spent approximately six weeks with the Project, all in Baghdad.  She focused on advising the Independent High Electoral Commission of Iraq (“IHEC”) on its regulatory process.  Mr. Fischer worked for the Project throughout the entire Project period, offering advice in all areas and heading the Electoral Law Advisory Committee established by the Project.

Key performance indicators in the Grant for Objective #3 included providing Project analyses and guidance on the following:

  • electoral processes to provide for free, fair, and open elections;
  • electoral processes that protect individual rights and promote a sustainable democracy;
  • processes for establishment of the Federation Council; and
  • other electoral legal framework issues as described above.

The CLA Grant Officer Representative informed the Project on January 5, 2010 that activities in Baghdad under Objective #3 were considered finalized and that Objective #3’s deliverables were considered met.  CLA directed that no additional activities in Iraq related to Objective #3 should be carried out by the Project.

The Project accomplished this Objective through the following key deliverables previously provided to USDOS:

First Quarter (January 1 – March 31, 2009):

Second Quarter (April 1 – June 30, 2009):

  • Review of Political Party Draft Law for Iraq (in English and Arabic), (Exhibit 42)
  • Internal Memorandum regarding Legal Requirements Regarding Election Date for the Council of Representatives, (Exhibit 43)
  • Memorandum Analyzing Draft Parliamentary Electoral Law from Tawafuq Bloc (in English and Arabic), (Exhibit 44)
  • Memorandum discussing the 2005 COR Electoral Law and Related Issues, (Exhibit 45)
  • Election law briefing packet prepared for the new U.S. Ambassador to Iraq (This packet is deemed to be sensitive and is not attached to this Report.)
  • Summary memorandum discussing the 2005 Council of Representatives Electoral Law (This memorandum is deemed to be sensitive and is not attached to this Report.)
  • Notes on international electoral observations (These notes are deemed to be sensitive and are not attached to this Report.)
  • Description of the activities and members of Electoral Law Advisory Committee (This description is deemed to be sensitive and is not attached to this Report.)
  • A Review of Options for Iraq’s January 2010 Elections (in English and Arabic), (Exhibit 46)
  • Elections Strategic Plan, (Exhibit 47)
  • An Introduction to Proportional Representation Seat Distribution Formulae, with an sample spreadsheet (in English and Arabic), (Exhibit 48)
  • Internal memorandum to CLA discussing the legal requirements regarding the composition of Iraq’s Council of Representatives under Article 49 of the Constitution (This memorandum is deemed to be sensitive and is not attached to this Report.)
  • Series of memoranda to the Committee to Review the Electoral Law (“CREL”) recommending technical changes to the draft electoral law (in English and Arabic) (These memoranda are deemed to be sensitive and are not attached to this Report.)
  • Report of Advisory Committee Member Lisa Handley:  The Role of Electoral Districts in Iraq (in English and Arabic), (Exhibit 49)
  • Elections Legislative Adoption Plan, (Exhibit 50)

Third Quarter (July 1 – September 30, 2009):

Fourth Quarter Deliverables (October 1 through December 31):

The Electoral Law Advisory Committee, required in the Project Work Plan, consisted of a group of international experts most of whom, because of security concerns and other logistical difficulties (discussed below), did not travel to Baghdad.  Electoral Law Advisory Committee members included attorneys and academics who specialize in electoral legal framework issues.  These advisors’ specialties included: political party law; electoral and referenda processes; electoral systems; and electoral justice.

The members of the Electoral Law Advisory Committee were:

  • Mr. Jarrett Blanc – (United States), an electoral systems expert;
  • Dr. Horacio Boneo – (Argentina), the founding Director of the United Nations’ Electoral Assistance Unit;
  • Dr. Jørgen Elklit – (Denmark), an electoral systems expert at Arhus University;
  • Mr. Ron Gould – (Canada), the former Deputy Chief Electoral Officer of Canada;
  • Mr. Sean Gralton – (United States), an election law attorney and electoral dispute adjudication expert;
  • Mr. Douglas Griffin – (United Kingdom), a media regulation expert at Albany Associates;
  • Dr. Lisa Handley – (United States), a legislative boundary delimitation and redistricting expert;
  • Dr. Donald Horowitz – (United States), an electoral systems and census expert at Duke University Law School;
  • Dr. Ken McCarty – (Canada), a citizens’ assembly expert at the University of British Columbia;
  • Ms. Marla Morry – (Canada), an election lawyer and election dispute resolution expert; and
  • Dr. Marcin Walecki – (Poland), a political finance expert at the European Partnership for Democracy.

Members of the Electoral Law Advisory Committee drafted technical papers analyzing the following subjects:

The Project’s Iraqi electoral law counterparts included: representatives and staff from the COR; commissioners and staff from IHEC; other legislative stakeholders such as the Office of the Prime Minister, COMSEC, MOPA; and staff from the relevant courts.
The Project coordinated its activities with electoral law activities conducted by the International Electoral Assistance Team (“IEAT”) and the International Foundation for Electoral Systems (“IFES”).

The Project provided substantial assistance in the analysis, drafting, and adoption of the COR’s election law. For background, in 2005, Iraq’s Transitional National Assembly adopted Elections Law No. 16 which applied to COR elections, as well as elections of the parliaments of the regions and provincial and local councils.  In 2008, after considerable political debate, the COR adopted a new law to govern provincial council elections.  That law governed the provincial council elections conducted in Iraq in January 2009.  Most Iraqis and international political observers generally believed that the 2005 electoral law adopted for COR elections would be modified extensively prior to the COR elections to be held in 2010.

In early July, the COR’s ad hoc Committee to Review the Electoral Law (“CREL”) continued its meetings to discuss adoption of laws to govern the national parliamentary elections scheduled for January 2010.  The CREL agreed to start from the existing electoral law enacted in 2005 and proposed substantial amendments through the process of an article-by-article review of the 2005 electoral law.  Jaye Sitton attended CREL meetings and prepared notes of the proceedings that were shared within the Project and with the U.S. Embassy, as well as with UNAMI.  Ms. Sitton coordinated with the Chief Technical Advisor of UNAMI’s Electoral Assistance Team regarding the electoral assistance that was provided to the CREL.  Ms. Sitton and the rest of the Project’s Electoral Team assisted the CREL by providing technical recommendations and a number of discussion papers on particular provisions.  These papers were provided to CLA for internal use only and copies are not attached to this Report.

In addition to specific comments regarding developments in the amendment process, several more general discussion papers drafted by members of the Electoral aw Advisory committee were provided to CLA and shared with CREL members.  Specifically, a research paper addressing census and population data issues was prepared by Dr. Lisa Handley and distributed to CREL members.  The Project’s memorandum dealing with the Role of Electoral Districts was shared with CREL members as well.  As additional support, Jarrett Blanc, another member of the Project’s Electoral Law Advisory Committee, prepared a report discussing selected topics in designing a proportional representation electoral system.  Ms. Morry, also a member of the Project’s Electoral Law Advisory Committee, prepared and submitted a report offering her detailed recommendations for technical improvements to the 2005 electoral law.

As part of her technical assistance, Ms. Sitton also drafted and submitted to CREL members a memorandum discussing the Federal Supreme Court’s decision applying Article 49 of the Constitution to Article 15 of the 2005 electoral law.  The Project recommended that CREL act as soon as possible to amend the electoral law in order to comply with the Court’s decision that the number and allocation of seats must be based on population, rather than on voter registration data.  Ultimately, however, CREL did not make a final decision on any proposals for a new electoral law after the legislative process reached impasse over the issue of the possible special treatment for Kirkuk.  The COR Speaker called a number of meetings of the leaders of the relevant political blocs to discuss their views on the Kirkuk issue, some of which were attended by Project representatives, but he was unable to break the impasse.  The COR’s Legal Affairs Committee continued the amendment process with Project representatives attending several sessions and having numerous meetings with Committee members to discuss proposals being considered.

After CREL concluded its process, Ms. Sitton and Jeff Fischer discussed with UNAMI’s Chief Technical Advisor proposed changes to the draft electoral law.  Their suggestions were memorialized in a letter UNAMI sent to COR leaders with specific suggestions for improvements to the proposed amendments.  In response to a formal request from UNAMI, the Project’s Electoral Team developed a written proposal to provide support for developing enhanced dispute resolution capacity relating to the voter registration update in Kirkuk.  However, because the Project received no response from the U.S. Embassy’s Office of Provincial Affairs, the proposed Kirkuk dispute resolution project did not proceed.

Another proposal to assist IHEC in drafting a regulatory framework for the elections was developed in response to a second official request from UNAMI.  With CLA’s approval, the Project’s Electoral Team met with IHEC officials to discuss the Project’s possible participation in the regulatory drafting process. The Project deployed Ms. Morry to Baghdad in mid-October to begin assisting the IHEC with developing regulations. Because of continued delays in the IHEC’s regulatory process resulting from GOI’s failure to amend the 2005 election law and because of increased security concerns, Ms. Morry left Baghdad on November 29, 2009.

The Project’s Electoral Team briefed the U.S. Embassy’s Electoral Working Group, Legislative Working Group, Political Section, and CLA on relevant developments relating to the parliamentary electoral law amendment process.  The Electoral Team assisted CLA and the Political Section to develop a brief for the U.S. Ambassador concerning operational issues relating to open lists versus closed lists for the 2010 COR elections.

The Council of Ministers (COM) submitted to the COR a draft electoral law based on the draft law CREL had developed which would adopt an electoral system with multiple, governorate-based constituencies and open lists.  The Project’s Electoral Team drafted comments for CLA and the Embassy’s Political Section on the draft electoral law proposed by the COM and contributed to comments on the draft that UNAMI submitted to the COR.

Late in 2009, the Political Section of the U.S. Embassy Baghdad expressed concerns about potential involvement by the Project in politically sensitive areas, especially the Iraqi elections to be held on March 7, 2010.  Therefore, the Political Section did not approve the Project’s request to provide technical assistance to Iraq’s Electoral Judicial Panel regarding electoral dispute resolution.  In February 2010, CLA directed that no further electoral legal framework activities be conducted by the Project in Iraq.