Baghdad, Asharq Al-Awsat—As the countdown begins for Iraq’s parliamentary elections scheduled to take place on April 30, one of the questions on everyone’s lips is about what will be done to address the failure to appoint an acting president following Jalal Talabani’s stroke at the end of December 2012.

Although the presidency in Iraq is largely ceremonial and divorced from day-to-day government, the president is considered the guardian of the constitution and has exclusive jurisdiction following the vote of 2005. The consensus-based nature of governance in Iraq also renders the role of the president indispensable as a mediator in a system of overlapping powers and authorities, in a country where offices of state are divided among ethnicities and sects.

A missing fulcrum?

Speaking to Asharq Al-Awsat, prominent Kurdish leader Fuad Masum, head of the Kurdistan Alliance in the Iraqi Parliament and one of the founders of the Patriotic Union of Kurdistan (PUK) along with Jalal Talabani in 1975, said Talabani’s absence from the scene left the Iraqi political system unbalanced.

“Despite the fact that, according to the constitution, the vice-president is supposed to replace the president in his absence—and this is what is happening now—from a practical point of view there is a breach of the principle of consensus,” he said. “Talabani has not filled his position for more than a year and there have been no Sunni vice-presidents [since] Tareq Al-Hashemi, who was sentenced to death in absentia. There is now one vice-president, Khodair Al-Khozaei, who belongs to the Islamic Da’wa Party led by Prime Minister Nuri Al-Maliki, but from a practical standpoint the position belongs to the Kurds.”

Regarding Talabani’s health, Masum said: “What we know, whether we are leaders in the PUK or the Kurdish or Iraqi street, is what is relayed by those close to him. They are receiving information from his family and his personal physician, the Governor of Kirkuk, Dr. Najmiddin Kari . . . We receive assurances about his health even though his stay in Germany has been a long one. His treatment is proceeding slowly and requires time.”

However, Masum maintains that the situation is stable in constitutional terms, saying: “The Iraqi constitution stipulates that the vice-president replace the president in the latter’s absence . . . In the absence of a medical report confirming the nature of the president’s health status, the position has been transferred to the vice-president.”

Burhan Mohammed Faraj, a member of the Kurdistan Alliance in Iraq’s parliament, said he agreed with Masum, but admitted that Talabani’s absence from the national stage was causing political problems.

In particular, Faraj said Talabani’s skills as a mediator were sorely missed. “To those who say that the position of President of the Republic of Iraq is only symbolic or ceremonial, we say that they are correct in theory, but the description does not apply to someone with a personality like Jalal Talabani. Thus his absence is political, not constitutional,” he concluded.

Amer Al-Jumaili, a professor of political science at the University of Baghdad, told Asharq Al-Awsat he agreed with this assessment. He said: “An overlapping of powers has led to the concept of consensus governing everything in [Iraq]. This is a watered-down term for the quotas upon which the political process of this country is based . . . Talabani’s absence is an issue for the Kurds, as his party has been embroiled in a political crisis since Talabani’s wife transformed the issue into a family matter.”

“This precipitates a dilemma for Sunni Arabs who want to avoid clashing with the Kurds over the presidency. They have a solid understanding of the issue, but the sole beneficiary of this absence is Prime Minister Nuri Al-Maliki, who has de facto control of the institution of the presidency,” he added.

Party Games

Some political analysts point to Talabani’s absence as one of the primary reasons behind the eclipse of his party, the PUK, in elections in Iraqi Kurdistan’s regional parliament last year. The PUK lost 11 seats at the last election and was pushed into third place behind Goran, led by Talabani’s former deputy, Mustafa Nawshirwan.

Although there is no specific information in the public domain about the extent of Talabani’s health problems and whether he will be able to continue to lead the PUK, they are apparently serious enough to keep him in hospital in Germany, and for the most part out of the public eye.

Talabani’s treatment in Germany is being overseen by his wife, Hero Ibrahim Ahmed, and his personal physician, Dr. Najmiddin Karim, who is also the governor of Kirkuk. They have carefully guarded access to Talabani and release very little information other than assertions that his health is on the mend.

The lack of any knowledge about Talabani’s condition and whether he will be able to resume his duties has been a problem for his party from the beginning, a problem which is now becoming critical, some sources say, given rising concerns about the party’s future.

One of the most prominent anti-Saddam dissidents and a historic leader of the Kurdish movement, speaking to Asharq Al-Awsat on the condition of anonymity, said assertions that Talabani was recovering were suspicious in light of the absence of direct contact with his old colleagues during the party’s troubles.

“If he can walk about, why would he not pick up the phone and reassure his party, which has found its senior leadership embroiled in disputes that threaten its unity?” the source asked.

A constitutional conundrum

As his absence lengthens and the end of his term in office approaches, interest in Talabani’s health continues to grow, but for different reasons in different places. While the case remains a party issue in the Kurdistan region, in Baghdad the question of the health of the current president is almost entirely a constitutional dispute.

This dispute between Iraq’s jurists and constitutional experts focuses on the terms “vacant” and “absent” in Articles 72 and 75 of the Iraqi constitution—and whether Talabani is simply “absent,” allowing the vice-president to handle his duties, or whether the presidency itself is “vacant,” which would trigger preparations for the election of a new head of state.

Legal expert Tareq Harb told Asharq Al-Awsat: “By virtue of the president’s inability to exercise his powers in light of his illness, his vice president assumed the president’s constitutional responsibilities on his behalf, as those powers were voluntarily transferred to the vice president. Hence, in accordance with Article 72 of the constitution, we are not experiencing a constitutional vacancy.”

Harb added: “These powers legitimize the issuance of death sentences and presidential decrees and so on, but if the case were that of a constitutional vacancy, the house speaker would be required to take on presidential responsibilities within one month and carry out a presidential election.”

However, legal advisor Ahmed Abbadi has a different opinion on the subject. He told Asharq Al-Awsat: “The constitution is clear on such matters. Article 72 says when the position of president of the republic is vacated for whatever reason—the constitution did not specify illness or other reasons—new presidential elections will be held that will complete the current presidential term.”

He added: “What is happening now is a constitutional violation [of the constitution], and not just a constitutional vacuum.”

The last chapter

Whatever the truth of the matter, with less than two months left in office Talabani has reached the end of his career. Based on information obtained by Asharq Al-Awsat from a figure close to Kurdish decision-makers, Talabani has been increasingly troubled by ill health in recent years.

“He used to enjoy good health, especially during his presidency during the transitional period, but throughout the current term, which is nearing its completion, he was not as fortunate. He spent most of that time in international hospitals like the Mayo Clinic in America, and is now in a hospital in Germany. Even when his health was stable he spent long periods in the Dukan resort in Suleimaniyah,” the source said.

In political terms, he is forbidden by the constitution from serving a third term. Before his stroke in 2012, however, he was widely seen as an effective politician.

“He served Prime Minister Nuri Al-Maliki well, stopping a confidence vote against him in the summer of 2011,” the source said. “That process involved the president of the Kurdistan region, Massoud Barzani, Iyad Allawi, the leader of the Iraqi List before it split, Speaker of Parliament Osama Al-Nujaifi, and cleric Muqtada Al-Sadr.”

Others have questioned how independent Talabani has been as president. When those meeting in Erbil submitted a motion of no confidence to Talabani in order to send the request to Parliament, it fell apart in its final moments. Ahmed Chalabi, head of the Iraqi National Congress, claimed during a television interview that when he asked Talabani why he rejected the motion, the president replied: “Iran pressured me and prevented me from submitting the motion to withdraw confidence.”

As the final chapter of his career draws to a close, there is no evidence that Talabani has responded to Chalabi’s allegations, whether through intermediaries or otherwise. Nonetheless, he may have one final task ahead of him. Talabani has been planning, according to the claims of one Kurdish figure, “to live for more than 90 years and spend a large portion of them at the end of his current presidential term writing his memoirs that will be—if written by him alone—a historical document of the utmost importance.”