The Iraki Constitution
Under the Iraki Constitution, the central and Kurdistan governments have shared powers. As the constitution is written, the central government would write the laws with the cooperation of the region (art. 11). I submit that the Kurdistan National Assembly should take the initiative of writing the law on more fundamental subjects (education, health, water and electricity) to fully express its identity and interests. It would also put the onus of creating the «dispute» on the federal authorities
The charià may be a basic source of legislation (art. 2) but its application to the personal status may be avoided under article 39. The Kurdistan National Assembly may adopt a law that would organize the personal status on a secular basis, leaving the citizens free to adhere to the personal status of their choice on the basis of their own religion.
This is a most important subject because the Court by its decision can change the nature of the constitution and «its decisions are binding for all authorities» (art. 92).
The Kurdistan constitution
The only legal constraint for the drafter of the Constitution of Kurdistan is «that it does not run contrary to the constitution» of Irak (art. 117).
All options are open bu the choice should be made with the attitude of a majority that wants to express its identity and adopt the best rules of good government. I give an example by redrafting the first articles of the Constitution. The preambule should also be rewritten stressing the defining moments of the Kurdish history.
Let me first thank you for your invitation to address the Constitutional Committee of the National Assembly of Kurdistan. It is a great honor for me to have the privilege to share with you the long experience of Quebec with federalism. Both our countries live under a federal constitutional system; while Quebec has more than 100 years of practice as a minority player within a federal system, it is a new adventure for the Kurdish people.
Notwithstanding the distance that separate them and their different cultural backgrounds, in some respects (important from a political point of view), our societies are in a similar social and institutional situation. Kurdistan has between 4 and 5 millions inhabitants who represent approximately 20% of the total population of Irak which is mainly Arabic. There are between 7 and 8 millions Québécois who represent between 20% or 25% of the population of Canada which is mainly English. The Kurds and the Québécois are concentrated on one territory with some minorities. And now, both Quebec and Kurdistan live under a federal constitutional system. One may ask the question : «Why is that so?»
The objective was probably not to establish a partnership between the Kurdish and Arabic people under the umbrella of the Iraki state. The objective was probably not to create a regime of equality between the Kurds and the Arabs in Irak. The reason why Quebec and Kurdistan live under a federal system is that they are two proud and pugnacious peoples that could not be dissolved or desintegrated within a larger community, Anglo-American or Arabic. But the fight for ones identity never ends. Federalism is simply the continuation of that fight by other means. For the majority, the objective remains the assimilation, the absorption of the minority. A federal constitution is only a transitional system of government to progressively, without bluntness, achieve that goal. For the minority, federalism is a mean to keep control over some of the major aspects of its identity and its development.
Normally in a democratic system of government, the majority sets the rules for the entire community. A federal system tempers the rule of the majority by providing a division of power between the central and the regional governments. In a state with two national majorities of different demographic weight, but living on clearly defined territories, the separation of power is fundamental. It can establish a permanent sharing of power between both national groups or it can be only a transitory compromise which will progressively, in the nation building process, deprive the minority of its powers, first, and then of its identity.
It is in such context that we will examine some aspects of the new Iraki constitution. First, two questions that have apparently been settled : the separation of powers (art. 107-112) and the importance of the charià as a source of law with regard to the personal status (art. 2 and art. 39). Secondly, a most important question : the status and the structure of the Supreme Court (art. 90s).
This analysis will be completed by a rapid examination of the first articles of the Constitution of Kurdistan. An in depth study of the draft of this Constitution would be a necessity because it is a unique opportunity for the Kurdish people to frame a constitution that is a tribute commensurate with the fight that he had to give for so long, the terrible sufferings he had to bear and his faltless resolve under the worst conditions.
I – The Iraki constitution
The analysis of the Constitution of Irak will be done in a very specific perspective : how to derive the most from a constitution that has already been negociated? How to interpret a text that still needs to be completed, in a way that is compatible with the fundamental interests of Kurdistan? This attitude is totally different from that for the drafting of the Kurdistan constitution which, and it is the only limitation, must not to be incompatible with the Iraki constitution. No negociation with outside forces; only, the task (but how difficult) to manifest, in the most enlighted way, the desires and the needs of the Kurdish people.
1.Federalism : the separation of powers (art. 107-112)
The Iraki constitution creates three categories of powers. Those that are in the exclusive jurisdiction of the federal authorities (art. 108). The list of exclusive power is not surprising except for its shortness. The federal government does not even have the power to raise taxes! That situation is probably the consequence of an oil and gas economy that distracts from the most fondamental economic questions.
Article 111 establishes a list of shared powers. The english text, as translated by the Associated Press, uses the word «duties», instead of «powers». Is it only a translation problem or does it express a fundamental difference from the «exclusive powers» of the federal authorities? The list of shared duties/powers includes very important responsibilities : health policy, education policy, water resources policy and organizing and distributing the main electrical power resources.
The third category concerns «all that is not written in the exclusive power of the federal authorities is in the authority of the regions» (art. 112).
So there are three categories of power : one limited list of powers falls under exclusive federal jurisdiction; an undefined but unlimited residual domain of jurisdiction belongs to the regional government; and finally, the federal and regional governments can legislate with regard to shared duties/powers.
This last category which is at the heart of the federal system has two caracteristics. First, «in case of dispute» between a Kurdistan law and an Iraki law, «the priority will be given to the region’s law», that is to say the Kurdish law. That is a fundamental gain that raises the questions : «Who will decide about the dispute?». The answer is the Supreme Court and this ultimate power stresses the importance of the law creating the Supreme Court. «How will this dispute emerge?» From the drafting of article 111, it is clear that the shared duties/powers are to be exercised first by the federal authorities and the onus of the refusal or the dissent will be put on the regional authorities to create the «dispute».
Article 111(5)(6) is drafted as follows :
«The following duties will be shared by the federal and regional authorities»
5) drawing up general health policy, in cooperation with the regions 6) drawing up general education and child bearing policy, in consultation with the regions
The implication of this text is that the policies will be planned, drafted and adopted by the central authorities after consultation or in cooperation (do those words have the same meanings?) with the region (the National Assembly of Kurdistan or some informal groups?). For the law to be drawn in cooperation or in consultation with the regions, it implies that the law is drafted by the federal authorities.
The burden of saying «no» to a federal legislation will be carried by the regional authorities and this burden might be very heavy because the revenues from oil (from «current fields») will be distributed by the federal government «in cooperation».
Is it not possible for the Kurdish National Assembly to take the initiative, to turn the table around by adopting its own legislation first, especially on such nevralgic questions as education, health policty and water resources policy. The onus will then be put on the federal authorities to accept or refuse the Kurdish legislation. The federal authority would then create the dispute between federal and regional laws. If the Kurdish law is accepted, well done, if not, the Kurdish law will have priority.
Such a legislative strategy is central to the assertion of the Kurdish identity. If, for example, the law of education reflects the Baath principles with regard to the training of future Iraki citizens, it might be difficult for the Kurdish authorities to dissociate themselves from rules that are so closely inshrined in the text of the law.
To have control over its education system, from Kindergarden to the University, is something that is very important, quite as much for the cultural identity as for the economic development. It is something else to be submitted to an education system conceived for somebody else, with some, more or less important, exceptions.
The key word is «system» and what is applicable to education has, at least, the same importance with regard to health, water resources, environment policy, economic development.
2.The personal status, the charià, women’s rights
The importance of Islam and the charià as a source of legislation has been a major theme of conflict between the different communities of Irak. The final consensus is to be found in article 2 :
«Islam is the official religion of the state and is a basic source of legislation»
This general but limited principle is even more reduced in its range by the following sub-sections :
«No law can be found that contradicts the undisputed rules of Islam; «No law can be passed that contradicts the principles of democracy; «No law can be passed that contradicts the rights and basic freedoms outlined in this constitution».
How can article 2 (Islam is a basic source of legislation) and article 5 (the law is sovereign, the people are the source of its authority and its legitimacy) be reconciled? What are the indisputed rules of Islam? Such articles and many others leave a very large discretion to the Supreme Court.
Whatever the decisions given by the Supreme Court in the future, the constitution asserts some fundamental principles :
Art. 35(2) : The state is committed to protecting the individual from coercion in thought, religion or politics.
Art. 40 : Every individual has freedom of thought, conscience and ideology.
Moreover, article 39 stresses that :
Irakis are free in their adherence to their personal status according to their own religion, sect, belief and choice and that will be organized by laws.
The meaning of all those articles seems to be that, even if the charià is a basic source of the law, every Iraki is free to choose the law that will regulate his personal status. The personal status is a matter of choice by each individual. It is the responsibility of the government of Kurdistan to «organize» that choice that should not be left, for obvious reasons, to the federal government.
The Kurdistan National Assembly should adopt a Civil code that reflects the new realities of the country and include in it, secular principles relative to the enjoyment and exercice of civil rights, family rights, successions, legal devolution of successions, wills and all subjects included in the personal status.
Every individual who would not adhere to a personal status of his own choice according to this religion, his sect or his belief, would be submitted to the general status in accordance with the laws of Kurdistan.
This proposition respects the freedom of thought and religion of every individual while, at the same time, establishing a general law applicable to every Kurdish person that does not opt out.
Since the problems of the personal status (according to the charià) and of women’s rights are closely connected, this interpretation of the constitution would, at the same time, confirm the more secular nature of the Kurdish society and promote woman’s rights in the society, in family and public affairs, that cannot be disconnected.
Minority’s rights in general would also benefit from such an interpretation and from the legislation that will consequently be adopted.
Only two major problems raised by the new Irakic Constitution have been subjected to a close analysis. Every aspect of the Constitution, specially education, health care, water resources and electric power, environmental policy, oil and gaz and many others, should receive a close scrutiny so that the Kurdistan National Assembly could take advantage of every disposition of the Constitution for the benefit of the Kurdish people. This is a very challenging opportunity that must be grasped with the greatest determination and assertiveness. Any delay may have desastrous consequences because the main guide lines in the implementation of the Iraki Constitution will very soon be given, by the Kurdistan National Assembly … or by others who do not necessarily share the same interests.
3.The Supreme Court
The judiciary is independant (art. 19(1)), the judges are independent (art. 86), but Kurdistan should not rely on so much independance for the protection of its rights under the Constitution. As a leading Quebec scholar has demonstrated, in a federal system, the Supreme Court always leans on the same side, that of the central power in the nation building process. The three branches of government (legislative, executive and judiciary) are all part of the same power, they have the same interests, the same objectives : build a strong state in a nation building process. And in Irak the majority is arabic and Shia.
The Supreme Court can, in a very subtile and progressive way, step by step without any major encroachment that would justify a strong reaction, transform in few years the nature of the constitution. It is very difficult to react to this legal usurpation of rights because the judiciary is independent and the judges are independent but generally, if not always, leaning on the same side in favor of the federal authorities. This is the Quebec experience.
In a federal system, the Supreme Court is therefore extremely important. The law that will be passed by a two-thirds majority according to article 90(2) of the Constitution, must include some savegards for the minorities. In professor’s Andrée Lajoie opinion, this is very difficult to achieve. In Canada, three judges out of nine must be from Quebec. This is absolutely useless as far as the protection of Quebec’s interest is concerned, first because three out of nine is always a minority and, secondly, because they are appointed by the federal government. If they were appointed after consultation or in cooperation with the Quebec National Assembly, they would still be a minority and chosen by the federal authorities.
The objective is that, in the nation building process, the Supreme Court does not take into consideration only the interests of the majority. As a matter of principles, the assertion that Irak, as a state, is the result of an alliance between two nations, Arabic and Kurdish, would draw a path for the Court. As a matter of legal technique, the number of judges and, more important, their manner of selection and appointment is of cardinal importance. Is it possible that the appointment be made jointly by the Iraki and Kurdistan national assemblies? Is it possible to require a qualified majority in constitutional decisions (art. 91(1),(2),(4),(5)?. What about a «Conseil d’État» which will decide of the constitutionnality of a law before its adoption by the Parliament?
In conclusion, it must be reminded that if federal legislation may not be applicable in Kurdistan, the decisions of the Federal Supreme Court «are binding for all authorities» (art. 92) even on matters of Kurdish jurisdiction. This provision really sets the fox to mind the geese or the «cheval de Troie» in the citadel of Erbil.
II – The Constitution of Kurdistan
The difference between the Constitution of Irak and the Constitution of Kurdistan is that the first had to be negociated with other parties, while the second is the expression of the will of the Kurdish people. The first requires imagination in the interpretation of a document in the best interest of the Kurdish people; the second requires imagination and craftmanship in the expression of the Kurdish identity and the constitutional means to foster its blossoming.
It is not possible within the framework of this presentation to go through the 77 articles of the Kurdistan constitution (as found on the Kurdistan Regional Government internet site).
I only want to submit that the new constitution must be written with only one external constraint :
«The region writes a constitution for itself … that does not run contrary to the constitution» (art. 117).
At the same time, the Constitution of Kurdistan should reflect the spirit of a majority who is a partner in the Iraki state, as it is said in the preambule.
In this state of mind, I wish to put forward a new drafting of articles 1,2, 3, 4 and 6 of the Kurdish constitution.
Conclusion : There are still so many questions to raise and so many problems to solve. What about the status of Baghdad? Will Kurdish be an official language in the capital? What about the rivers, electricity and economic development? What about education in a world society of knowledge?
According to article 118(2) I.C., the gouvernment of Kurdistan has the right to amend the federal legislation (except for its exclusive powers) but article 118(1) I.C. specifies that the Kurdistan National Assembly can legislate on any subject (except those reserved to the federal government). I submit that the government of Kurdistan should take every opportunity to exercise its full legislation power with all the necessary expertise within the new framework established by the recent constitutional agreements.
The peshmerga defended the Kurdish people under very difficult conditions. Today, the peshmerga are stille needed but the conditions have changed. The new constitution introduces innovations that must be dwelt with the same competence, the same assertiveness and the same success. The federal constitution with its separation of power and the charter of rights, raises new challenges that must be taken up now at the risk of loosing the peace after having won the war.