'IT'S ABOUT THE CONSTITUTION'

Erbil and Baghdad currently use the Constitution against each other.  As it currently stands, however, both sides standing on the Constitution is like standing on thin ice.

Will the 2005 Iraqi Constitution finally receive the attention it deserves?  Will it work?  If the Constitution works as it could and should, all Iraqis could benefit. But it won't work by itself.  No Constitution, no Iraq.

In his NYT op-ed of 18 October 2017, Prime Minister Abadi delivered a manifesto, a statement of policy and aims, that misinterprets the Constitution and (deliberately?) misleads readers.

The KRG has published a report asserting the federal government has violated 55 of the Constitution's total 144 articles, and failed to fulfill or fully implement another 12 articles. Here is a link to that report: HTTP://CABINET.GOV.KRD/A/D.ASPX?S=040000&L=12&A=55856

If sincere efforts were made to promote and implement the Iraqi Constitution, and apply the country's immense resources in the best interests of all its people, regardless of their ethnic or religious backgrounds, the potential would be exceptionally high for all Iraqis to become among the happiest, and most fulfilled and satisfied people in the world.  And by now, Iraqis would have put a woman on the moon.

If the Iraq Constitution was upheld, the Referendum would not have been held.

The Iraq Constitution does not prohibit the Referendum.  The Referendum was legitimate and legal. In and of itself, the Referendum changed nothing.

What is indeed illegitimate and illegal is the federal government's RUSH TO VIOLENCE that followed the Referendum.  This violence clearly contravenes the Constitution, Article 9, and disunites the country by creating and/or exacerbating animosities between communities. The aggression has caused hundreds of casualties, tens of thousands of families are displaced, homes have been looted and burned, atrocities committed, with continuing threats, intimidations, and humiliations. This aggression, a throwback to the Saddam era, was totally unnecessary and avoidable.

According to the Iraq Constitution, the Kurdistan Region is a recognized federal entity, Iraqi armed forces cannot be used against the Iraqi people, oil and gas fields must be jointly managed and revenues fairly distributed, and only the Federal Supreme Court, which has yet to be established, can settle disputes between the federal government and the Kurdistan Region.  As required by the Constitution, a second chamber in the Iraqi Parliament, the Federation Council of representatives of the regions and governorates, was also not established.

The Iraq Constitution is quite readable, it is written in a language for moderately intelligent high school students. Click  TEXT OF 2005 IRAQ CONSTITUTION [1]    or insert the following link into your browser and click HTTPS://WWW.CONSTITUTEPROJECT.ORG/CONSTITUTION/IRAQ_2005.PDF?LANG=EN

The Iraq Constitution builds on and supersedes the Transitional Administrative Law (TAL), click TRANSITIONAL ADMINISTRATIVE LAW (TAL) [2]    or insert the following link into your browser and click http://www.cesnur.org/2004/iraq_tal.htm

The TAL was Iraq's provisional (interim) constitution following the 2003 war.  The TAL was signed in March 2004 by the Iraq Governing Council and went into effect in June 2004 following the official transfer of power from the US-led Coalition Provisional Authority (CPA) to a sovereign Iraqi government. The TAL was superseded by the permanent Iraqi Constitution that went into effect when the permanent (non-interim) Iraqi government assumed office in May 2006.

The TAL was principally drafted by a ten-person committee (no women!) that included prominent Iraqis like Feisal al-Istrabadi and Adnan Pachachi.  Both served as Iraqi Ambassador to the United Nations.  Adnan Pachachi also served as Iraq's foreign minister. Al-Istrabadi earned his SJD (Doctor of Juridical Science, a research doctorate in law degree) from the United States.

The 2005 Iraqi Constitution was drafted by Iraqis for Iraqis.  To a major extent, it incorporates the TAL.

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The Preamble of the permanent Iraq Constitution states,

* "We, the people of Iraq, of all components and across the spectrum, have taken upon ourselves to decide freely and by choice to decide our future, to take lessons from yesterday for tomorrow, and to enact this permanent Constitution . . ."        

* "The adherence to this Constitution preserves for Iraq its free union of people, of land, and of sovereignty."

— This says the Kurdistan Region's union was voluntary and non-adherence to the Constitution dissolves the union of people who freely joined Iraq. The union was conditionally agreed to by Iraqi Kurdistan on the condition the federal government would respect the new constitution. This approach was confirmed by US Ambassador Robert Ford, who was an advisor along with UN officials at the time the Iraqi Constitution was drafted. Ambassador Ford informs that Masoud Barzani ". . . finally answered us clearly in October 2005: if the Baghdad central government respects the new constitution, the Kurdish regional government will remain in a united Iraq."_

— Recent rulings pertaining to the Kurdistan Region by a Baghdad court are questionable because the standing of the court itself is questionable. The court is a hold-over from the transitional period and, thus, its mandate expired when the TAL was superseded by the 2005 Iraqi Constitution that came into force in May 2006. This court was also misused by the Maliki administration to eliminate the independence of government commissions. Further, this court is politicized and the age of the current chief justice exceeds the permissible limit._

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Of the total 144 articles in the Iraqi Constitution, here are some of particular relevance to Iraqi Kurdistan that are worth reading and studying, knowing and understanding, and even committing to memory:

ARTICLE 117(1) states,  "This Constitution, upon coming into force, shall recognize the REGION OF KURDISTAN, along with its existing authorities, as a federal region."

ARTICLE 4  states,

* (1)  "The Arabic language and the Kurdish language are the two official languages of Iraq."  This article further states the official languages shall be applied to:

* (2A)  "Publication of the Official Gazette, in the two languages"

* (2B)  "Speech, conversation, and expression in official domains, such as the Council of Representatives, the Council of Ministers, courts, and official conferences, in either of the two languages"

* (2C)  "Recognition and publication of official documents and correspondence in the two languages"

* (2D)  "Opening schools that teach the two languages, in accordance with educational guidelines"

* (2E) "Use of both languages in any matter enjoined by the principle of equality such as bank notes, passports, and stamps"

ARTICLE 5 states,  "The law is sovereign.  The people are the source of authority and legitimacy…"

ARTICLE 9 states, "The Iraqi armed forces and security services . . . shall not be used as an instrument to oppress the Iraqi people, shall not interfere in political affairs . . ."

— A related Kurdistan law says Iraqi armed forces cannot enter the Kurdistan region without the permission of the Kurdistan Parliament. This law was passed in accordance with the provisions of the 2005 Iraqi Kurdistan._

ARTICLE 9(B)  states, "The formation of military militias outside the framework of the armed forces is prohibited."

The Hashd al-Shaabi (PMF/PMU) is an umbrella organization composed overwhelmingly of Shia militias that are irregular forces operating under a command and control structure separate from the Iraqi military. Prominent units are supported by, and operate with the blessing of, both the Iraqi and Iranian governments, with American weaponry, with embedded Iranian forces and are led by Iranian "advisors".

ARTICLE 13 states,  "This Constitution is the preeminent and supreme law in Iraq and shall be binding in all parts of Iraq without exception."

ARTICLE 14 states,  "Iraqis are equal before the law without discrimination . . ."

ARTICLE 15 states,  "Every individual has the right to enjoy life, security, and liberty …"

ARTICLE 16 states,  "Equal opportunities shall be guaranteed to all Iraqis …"

ARTICLE 19 states,  "There is no crime or punishment except by law."

In effect, because there is no law prohibiting referendums, this says there is no crime or punishment for participating in the Referendum.

ARTICLE 65 states,  "A legislative council shall be established named the "Federation Council" to include representatives from the regions…"

— To date, this council, which is a second legislative chamber in the Iraqi Parliament, is required for federation and is to be made up of representatives of the regions and governorates.  This chamber has yet to be established._

ARTICLE 67 states,  "The President of the Republic is the Head of the State and a symbol of the unity of the country and represents the sovereignty of the country.  He shall guarantee commitment to the Constitution and the preservation of Iraq's independence, sovereignty, unity, and the safety of its territories, in accordance with the provisions of the Constitution."

ARTICLE 92 states,

* (1)  "The Federal Supreme Court is an independent judicial body, financially and administratively."

* (2)  "The Federal Supreme Court shall be made up of a number of judges, experts in Islamic jurisprudence, and legal scholars, whose number, the method of their selection, and the work of the Court shall be determined by a law enacted by a two-thirds majority of the numbers of the Council of Representatives."

— No such law has been enacted. To date, the Federal Supreme Court has not been established. The court that currently claims to decide disputes is left over from the transitional government that functioned under the Transitional Administrative Law (TAL), which was superseded by the 2005 Iraq Constitution. Thus, the standing of that court is questionable and, apparently, it has no mandate to act._

ARTICLE 93 states,  "The Federal Supreme Court shall have jurisdiction over the following:"

* (1)  "Overseeing the constitutionality of laws and regulations in effect."

* (2)  "Interpreting the provisions of the Constitution."

* (3)  "Settling matters that arise from the application of federal laws…"

* (4)  "Settling disputes that arise between the federal government and the government of the regions…"

* (8A) "Settling competency disputes between the federal judiciary and the judicial institutions of the regions…"

ARTICLE 109 states, "The federal authorities shall preserve the unity, integrity, independence, and sovereignty of Iraq and its federal democratic system."

— This is the crux.  By its sectarian disposition, the federal government has alienated through violence major portions of the Iraqi citizenry - yesterday Sunnis, today Kurdistanis - that does not preserve the unity and integrity of Iraq._

ARTICLE 110 states, "The federal government shall have exclusive authorities in the following matters:  "Formulating and executing national security policy, including establishing and managing armed forces to secure the protection and guarantee the security of Iraq's borders and to defend Iraq."

— As there is no security threat from any neighboring country, the current situation does not require federal forces to secure border areas bordering the Kurdistan Region unless the security situation warrants and no other forces are available.  It is a matter of law that Iraqi security forces cannot enter the Kurdistan Region without the approval of the Kurdistan Parliament._

ARTICLE 112 states, "The federal government, with the producing governorates and regional governorates, shall undertake the management of oil and gas extracted from present fields, provided that it distributes its revenues in a fair manner…"

— The key operative words are "with" and "provided". Control of Iraq's oil and gas industry is NOT an exclusive authority of the federal government."_

ARTICLE 114 states,  "The following competencies shall be shared between the federal authorities and regional authorities:  To manage customs, in coordination with the governments of the regions…"

ARTICLE 115 states,  "All powers not stipulated in the exclusive powers of the federal government belong to the authorities of the regions and governorates…"

ARTICLE 121 states,

* (1)  "The regional powers shall have the right to exercise executive, legislative, and judicial powers… except for those authorities stipulated in the exclusive authorities of the federal government."

* (2)  "In case of contradiction between regional and national legislation in respect to a matter outside the exclusive authorities of the federal government, the regional power shall have the right to amend the application of the national legislation within that region."

* (3)  "Regions and governorates shall be allocated an equitable share of national revenue sufficient to discharge their responsibilities and duties, but have regard to their resources, needs, and the percentage of their populations."

* (5)  "The regional government shall be responsible for all the administrative requirements of the region, particularly the establishment and organization of the internal security forces for the region such as police, security forces, and guards of the region."

ARTICLE 140  states,

* (1)  "The executive authority shall undertake the necessary steps to complete the implementation of the requirements of all subparagraphs of Article 58 of the Transitional Administrative Law."

* (2)  "The responsibility placed upon the executive branch of the Iraqi Transitional Government stipulated in Article 58 of the Transitional Administrative Law shall extend and continue to the executive authority elected in accordance with this Constitution, provided that it accomplishes completely (normalization and census and concludes with a referendum in Kirkuk and other disputed territories to determine the will of their citizens), by a date not to exceed the 31st of December 2007."

ARTICLE 143 states, "The Transitional Administrative Law and its Annex shall be annulled upon the seating of the new government, except for the stipulations of Article 53(A) and Article 58 of the Transitional Administrative Law."

* TAL Article 53(A) states, "The Kurdistan Regional Government is recognized as the official government of the territories that were administered by that government on 19 March 2003 in the governorates of Duhok, Erbil, Suleimani, Kirkuk, Dyala, and Nineveh. The term "Kurdistan Regional Government" shall refer to the Kurdistan National Assembly, the Kurdistan Council of Ministers, and the regional judicial authority in the Kurdistan region."

* TAL Article 58 states,  The Iraqi Transitional Government "… shall act expeditiously to take measures to remedy the injustice caused by the previous regime's practices in altering the demographic character of certain regions, including Kirkuk, by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving inhabitants of work, and correcting nationality."

— Additional paragraphs in TAL Article 58 outline steps to be followed regarding resettling compensation, re-employment opportunities, nationality correction, restoring administrative boundaries, and a fair and transparent census._

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Links:

[1] https://constituteproject.org/constitution/Iraq_2005.pdf?lang+en

[2] http://www.cesnur.org/2004/iraq_tal.htm