JURIST Guest Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that the Sunni-Shi’i divide in the Iraqi parliament is only one split complicating the passage of controversial legislation in the troubled state…

Conventional wisdom seems to suggest that the ability of Iraq’s legislative body, the National Assembly, to pass crucial legislation is hampered primarily by sectarian conflict. There is some obvious truth to this, but there is also significant danger in attempting to view a multifaceted problem solely in this one dimension. In particular, there is another, far less reported divide among Iraq’s parliamentary factions that gives rise to enormous complications whenever any draft legislation is considered by the National Assembly. Specifically, there is significant divergence within the National Assembly in attitudes towards the United States and the American presence in Iraq. A brief review of the two most recent legal issues discussed in Iraq and in its National Assembly makes this amply clear. The first is the current impasse respecting the enactment of a “justice and accountability law” meant to allow former members of Saddam’s Ba’ath party to return to employment at ministries and receive pensions, and the second concerns extending the legal authority of the U.S. military to remain in Iraq.

As for the justice and accountability law, media reports are nearly always uniform. The Shi’is oppose the law because they suffered under the former regime, and the Sunnis favor it because the Ba’ath members were largely Sunni, hence the impasse between them. Quotes are then brought forward to demonstrate this, from angry Shi’is who oppose what they consider an amnesty, or angry Sunnis who feel that individuals who have done nothing wrong are denied an income or a means to survive.

A closer inspection, however, reveals this explanation to be somewhat incomplete in a number of ways. First of all, Prime Minister Nouri Al-Maliki has endorsed the bill, and has sent it to the National Assembly where he must have expected he had the votes to pass it. The most recent disruption of the National Assembly to delay the bill was caused not by the Shi’is generally, but by the Sadr faction, consisting of only 30 members of the 275 member Shi’i dominated parliament. The Iraqi National Accord, a non-sectarian party led by the Shi’i Ayad Allawi, supports the legislation. Not all Sunnis support the bill, Saleh Mutlaq, the Sunni leader of the hardline Iraqi National Dialogue Party, opposes it. What precisely is going on?

First of all, while the Ba’ath party was predominantly Sunni, there is no question of significant Shi’i membership. The Iraqi National Accord, led by a Shi’i, has many former members in its ranks, including Allawi himself. The story of Shi’i opposition because of former repression is largely true, but overly simplistic.

More importantly, certain Shi’i groups are more tolerant of the continued American presence than others, and thus respond more readily to repeated American pressures to pass the legislation. Hakim’s Supreme Islamic Council in Iraq (SICI) has not voiced opposition, and as noted above, Maliki’s Da’wa party, or at least its leader, has endorsed the bill. Sadr’s extremist faction, hostile to the United States given its recent history with the US, is naturally unaffected by American pressure, or indeed perhaps responds to American pressure by resisting what the US wishes to see; a comprehensive bill on de-Ba’athification.

The explanation seems more complete when this “America factor” is taken into account. Leaders and members of the Da’wa, SICI and the Sadr factions all suffered under the former regime, few if any were ever Ba’athists, none have promoted extensive reconciliation with Sunnis on other fronts other than rhetorically. There is thus no real explanation for the difference among these Shi’i parties respecting the rehabilitation of former largely Sunni party members other than that SICI and Da’wa have closer relationships to the Bush administration than Sadr and are more responsive when the administration urges progress on the bill. Thus do the Sadrists, and nobody else, disrupt the National Assembly and dismiss the bill as “amnesty” for supporters of totalitarianism, preventing its passage.

Hostility to the US similar to that of the Sadrists might explain why Mutlaq’s hardline Sunni party is equally uninterested in the justice and accountability law. Naturally Mutlaq cannot oppose the proposed law for the same stated reason as the Sadrists, that it promotes amnesty, given that much of Mutlaq’s support comes from former party members. Rather, Mutlaq wishes to see the bill defeated, he says, because there should be no restrictions on any former party member, no matter how senior, from taking any position in government, no matter how high, unless he can be convicted in a court of law for criminal activity. This rather absurd legal standard has absolutely no chance of being realized in today’s Iraq, and Mutlaq must know that. Only two explanations are plausible. First, Mutlaq is a hotheaded extremist who has no interest in returning Ba’athists to their jobs via compromise and instead wishes to take an untenable position and lose out of principle, or second, that Mutlaq, like his Shi’i counterpart Sadr, would like to see America fail, and is deliberately avoiding compromise to ensure that this is achieved.

Consideration of the second of the two legal issues roiling Iraq, the status of the American troop presence, makes this divide even clearer. President Bush and Prime Minister Maliki have signed an agreement in principle to negotiate the continued status of US troops in Iraq, with a final agreement to be completed by July 2008. Provisions concerning American investment are also included in the letter, as are the expectations of what the American troops’ functions will be, and the conditions under which they might withdraw. Again, the reactions mirrored in some ways the positions on de-Ba’athification, although this time it was entirely clear the source of the division. SICI has been largely silent, Da’wa’s leader signed the agreement, and neither the Iraqi National Accord nor the more mainstream Sunni parties have issued a statement. Yet the hardline Association of Muslim Scholars has denounced even this cursory letter agreement to agree as “a conspiracy with collaborators.” The hardline Sadrists likewise expressed serious reservations. Thus have the hardline Sadrists and Sunnis joined hands in their opposition to the US and its continued presence in Iraq.

This is not to suggest that the Sunni Shi’i divide is not real, only that it provides only a partial explanation. Hostility to the United States, present among hardliners within each faction, helps to show yet another divide within Iraqi society and the Iraqi National Assembly, with significant consequences for any legislation that may ultimately emerge, or fail to emerge, from it.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government.

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