Iraqi-fornia: Groups Sue to Prevent Lawmakers from Receiving Pay
When I was growing up in California, frustrated voters would complain that members of the State Assembly should not get paid until they passed a budget. (California was, and is, notorious for its failure to pass budgets). It didn’t take long for that frustration to diffuse to Iraq. While Iraq’s lawmakers come ever closer to a deal, Iraqi citizens groups are going to court to prevent Iraq’s legislators from receiving their pay.
The groups had previously won a judgment in the Federal Supreme Court of Iraq to compel the Iraqi government to convene. As was expected, while al-Maliki’s State of Law party (who stood the most to gain from forming a new government) enthusiastically supported the court ruling, Allawi’s Iraqiya party (who stood the most to lose) refused to take their seats. The failure of these groups to compel legislative prerogatives is not new: President Jackson, after receiving a Supreme Court decision adverse to his plans for Cherokee removal was reported to say, “Justice [John] Marshall has made his decision, now let him enforce it.” These groups, undeterred, want to use the suspension of pay as compulsion to meet their objectives.
As laudable as their goal is, they face a steep mountain of legal tradition to climb. Generally, executive and legislative branches are allowed, by way of default, the ability of non-enforcement/non-compliance. Basic constitutional principles usually grant the executive with the power of enforcement of laws and court decisions. If a legislature acts in a contrary way to the judicial decree, it is up to the President to enforce it. The President of Iraq is currently Ayad Allawi, whose party opposed the decision. It would be highly unlikely, to say the least, to see him enforce it.
Some Western countries have tried to circumvent this problem by granting the average citizen a cause of action against the government for non-enforcement. (Canada did so in the 2008 case Holland v. Saskatchewan.) However Iraq’s Constitution follows the traditional model. Article 52 of their Constitution grants only the President the power to compel the legislature to sit down (15 days after the general elections, in fact).
Therefore in order to win, these citizen groups would have to convince the Federal Supreme Court that the enumerated rights of Iraqis have penumbras that compel the right to a functioning government. No provision in the Constitution guarantees a functioning government directly, although certain provisions (such as the right to heath care) would certainly imply it.
But in this highly fragile and political climate, granting that right/cause of action would be a bad idea. The longstanding justification for government immunity in a democratic age lies in the proven fact that no successful government has ever succumbed to popular demand. Democracies are only successful because people paradoxically value the anti-democratic leader. This person brings ideas and solutions to the table, even if they are not popular or understood. Simply put, governments need freedom to govern.
So for now, it looks like Iraqis will enjoy their own slice of California.