Iraq and Gulf Analysis

An Iraq Blog by a Victim of the Human Rights Crimes of the Norwegian Government

The Kurdish Demands: Some Legal and Constitutional Hurdles

Posted by Reidar Visser on Monday, 18 October 2010 13:16

At Versailles, in 1919, in reaction to the 14 points outlined by US President Woodrow Wilson as a basis for the peace settlement after the First World War, Georges Clemenceau, the French premier, famously complained, “Even God was satisfied with Ten Commandments, but Wilson insists on fourteen”….

Today, the Kurdish leadership aims even higher, with “19 points” intended as its basis for negotiations to form the next Iraqi government. Recently, the Kurds have seen a strengthening of the fortunes, first after the failure of Iraqiyya and State of Law to talk to each other, and then a result of the partial disintegration of the projected all-Shiite National Alliance, leading to a situation in which both the Allawi and Maliki camps are seeking Kurdish support instead of choosing the more logical option of making an alliance together. As a consequence, we have the ironic situation whereby two declared Iraqi nationalists who are theoretically committed to working against the destruction of the Iraqi state in practice are trying to outbid each other in an attempt at satisfying Kurdish aims that are directed precisely at the dismemberment of Iraq as a recognisable and governable state. The other day, Aliya Nusayf of Iraqiyya declared that “the Kurdish demands will only be implemented through Iraqiyya”! What a pathetic thing to say for a representative of a party that was once critical about the constitution adopted in 2005, not least for its excessive concessions to the centrifugal forces in Iraqi society. True, Nusayf is not on the accredited list of official spokespersons of Iraqiyya, but why is she allowed to say such things with impunity? Maliki’s State of Law aren’t lagging much behind either, with Khalid al-Asadi recently declaring himself in favour of most of the 19 points with the possible exception of the rather ridiculous idea that the government automatically be considered resigned if the Kurds withdraw from it.

However, whatever one thinks of the politics of centralism versus decentralisation, in contrast to God and statesmen seeking to redefine the rules of the international community in 1919, the Kurds need to take into account certain guidelines that they themselves often claim to adhere to: the Iraqi constitution adopted in 2005. The problem is that some of the Kurdish demands cannot be implemented without abrogating the Iraqi constitution altogether.

Some of the Kurdish demands are boilerplate items that should not pose a problem, or are loose enough to be interpreted in whatever way one wishes. For example, when the Kurds are calling for “balance” in the state apparatus, they really mean that everywhere there should be a percentage of officials corresponding to the Kurdish share of the total population. In other words, they mean that professionalism as a principle should be set aside to make room for appointees vetted by the two biggest Kurdish parties. This sounds like a bad idea, but it is not something that could be done overnight and presumably there would be a degree of judicious bureaucratic resistance.

The first major problem in the Kurdish demands, from the legal point of view, is number four, the establishment of a senate within the first year of the parliament, and the extension of the veto powers of the presidency council until the senate is up and running. This is simply one hundred per cent unconstitutional and against the basic principles of separation of power. It is for the Iraqi parliament, not the government, to draw up the rules of the next senate, with a two-thirds majority. An attempt has been made at this through the work of the constitutional revision committee, but after 3 years of work (well, “existence” would be more correct) this committee has only produced a partial report. Although it does outline the provisions for a senate, it has left many other questions unanswered and cannot be voted on in its present shape. Even more importantly, the current powers of the presidency council automatically expire as soon as a new president is elected. The presidency council was a transitional arrangement for 2005-2010 only (as per article 138) and therefore it was also given strong powers; by way of contrast the next Iraqi president will have no real power, as defined in article 73 of the constitution. To change this, one would need to change the constitution which can only be done in one of two ways: Either with a special two-thirds majority in parliament followed by a referendum (article 126), or as part of the broader constitutional revision with an absolute majority in parliament and a referendum in which any three governorates can vote the changes down by a two-thirds majority in their constituencies (article 142). Again, it is not possible to seat a government based on eventualities relating to parliamentary dynamics and forthcoming referendums. What if the proposal to expand the powers of the presidency council is rejected by the people?

Similar problems apply to the tenth Kurdish demand, acceptance (by parliament!) of the latest oil and gas draft law (of 2007) “and its acceptance means recognition of the oil industry activities going on in Kurdistan and gives Kurdistan the rights to explore and export” (sic!) Again, the government cannot do anything other than introducing the oil law to parliament, which it failed to do last time due to Shiite-Kurdish disagreement. Whether the parliament agrees or not is a different issue altogether. It is worth noting that the current draft oil and gas law appears to be unconstitutional in many ways, for example by treating producing governorates and regions on a different basis, apparently giving contracting rights to regions only (and not governorates). If a right to anyone outside Baghdad to sign contracts is indeed recognised by the Iraqi parliament – and that is a big if, since it would seem to violate article 112 which stipulates shared power in strategic energy policy  – then it should apply to regions and governorates alike, otherwise it would be against article 115 of the constitution that puts regions and governorates on an equal footing in terms of residual powers. Of course, the Iraqi parliament would think twice before giving contracting rights to Basra, Maysan and Dhi Qar. Similarly, no Iraqi government can promise to “implement” the parts of article 140 that relate to referendums on disputed territories, since special legislation on those referendums would have to be passed by the Iraqi parliament.

The Kurdish leaders may not care much about the principle of separation of powers in their own constituencies, but in the rest of Iraq it still applies, or so one hopes. One may agree or disagree with the Iraqi constitution of 2005, but in areas where it is clear it should be respected – if not, one might as well abandon all the nice talk about democracy altogether, and instead stage a military coup proper. The Kurdish negotiating document is not only a step towards the complete destruction of the Iraqi state, it is also a flagrant violation of the constitution that the Kurds themselves supported back in 2005.

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20 Responses to “The Kurdish Demands: Some Legal and Constitutional Hurdles”

  1. Wayne White said

    The amusing association of the Kurdish 19 points with the Wilsonian 14 points may turn out to be somewhat relevant. Germany agreed to the Armistice of Nov. 11, 1918 with genuine expectations that the Allies would observe the 14 points that had been offered by Wilson. However, soon after Germany signed the Armistice, it became evident that the Allies were not at all united behind their implementation (a situation that would manifest itself dramatically at Versailles in 1919). For many of the reasons cited above, it is doubtful, even if most of these points were to be agreed upon by by either a Maliki-led or Iraqiya-led coalition, that anything approaching all of them would be effectively implemented (possibly leading to yet another crisis).

  2. Reidar Visser said

    Wayne, I hope you’re right, although I would have preferred to see just a little more critical writing about these issues in the Iraqi press right now. It seems everyone is kowtowing to this silly Kurdish agenda at the moment! Where are the critical voices? Aren’t Iraqi politicians capable of articulating something a little more complex than “No, no to Maliki”? What about those international think tanks that were once concerned about governance in Iraq, are they all in Afghanistan now?

  3. Kermanshahi said

    Reidar
    You make to much difference between government and parliament in your article. The fact is that Iraq has a parliamentary system and the government has the majority of the parliament behind it, so they can pass the Kurdish demands.

    As for the 19 Kurdish demands, I don’t think the Kurds expect all to be implemented, but the more the better. The real important issues are on 1 peacefull democratic solution to disputed territories (referendum) on 2 the Talabani Presidency and 3 the oil-law. The first point has to be agreed to, the second can be compromised on if the 1st and 3rd are agreed to (incase of an Iraqiyya-deal where Allawi wants the Presidency), in which case I think Iraqiyya will be most keen of all to see the powers of the Presidency council expanded. The rest are merely minor demands and if enough of them (+ the most important demand) are met, than the Kurds will even be prepared to make generous compromises on their oil-related demands. The demand of proportional representation of Kurds in local governments is mostly related to the Nujayfis firing all Kurds in Ninawa. You think of such law as ridiculous and unrealistic, but the situation in the Middle East has been for centuries that all government positions in Kurdish areas were packed by Arabs (Iraq, Syria) and Turks (Turkey), Kurds having no representation at all, is this not ridiculous? And than Saddam’s people, Evren’s people, al-Assad’s people, would indeed say they value profesionality over ethnicity and since their opressive regimes never allowed Kurds any oppurtunities, they better keep it like that for the sake of appointing “capable professionals” instead of people based on their ethnicity.

    When the society changes, the need for such laws, protecting Kurdish rights can change (just like the female-quota by the time people Iraq are far enough that they will actually elect women). But what you seem to be forgetting is that when Arab (Iraqi) Nationalists were in power, they commited genocide, destroyed every single Kurdish village and at least 280,000 Kurds, not to forget the ethnic cleansing campaigns in certain areas (most notably Kerkuk) to make them “more Arab.” Now you see these same people and their successors as the “good guys” for trying to “keep Iraq united” and the Kurds as bad guys for trying to get as much independence as possible in order to protect themselfes and prevent this from happening again. And while the Nationalist politicians are seen as a threat to the interests of certain foreign countries, Iraqi parties, and their supporters, by most Kurds they are seen, however, as threats to their lives.

  4. Reidar Visser said

    Kermanshahi… and you make light of the principle of parliamentarism by which the executive and legislative branches are separate (even though the former is answerable to the latter) and deputies are free to follow their own conscience. It is the idea of binding deputies (in this case those of the prime minister’s party) that I object to because it would undermine the principle of separation of powers. Additionally, of course, fixing the presidency would require a referendum and no power could prejudge its outcome as a basis for government formation.

    As for the Kurds during the Baath I don’t want to be apologetic about what the regime did to civilians. But for the sake of balance, you might have added to your missive a sentence to the effect that the Kurds were fighting on the Iranian side in the Iran-Iraq War, which to some extent may help explain – though certainly not justify – why the regime went to such extremes.

  5. Kermanshahi said

    Well it’s a fact it works this way. This is the whole reason Maliki and Allawi want majority coalition in the first place, so they can impliment their policies with backing of majority of parliament. For Kurds they join them, they want that some of their policies are also implemented.

    And yes, the PUK alligned with Iran during the war, so did the Supreme Counil and infact the Dawa party (which maybe didn’t allign so openly, but they fought Iraq at the time and recieved Iranian weapons), same way several Iranian Kurdish groups like the KDP-I and KOMALA cooperated with Iraq and some Khuzestan Arabs also supported the Iraqi forces during the occupation of Khorramshahr, Dezful and certain other areas and sure the IRGC violated some human rights during counter insurgency operations (also in central Iran, where MKO terrorists operated with Iraqi backing), but they didn’t tear the whole place down like Saddam did. What Saddam did started earlier, around ’74 and even before that and it was almost all aimed at civilians and it continued afterwards. Now there is no guarantee this won’t happen again, particulary if ex-Ba’athists return to power or if al-Maliki continues his path of becoming the Shi’a Saddam Hussein.

  6. Ali said

    What are these nineteen points?

  7. bb said

    ” of the principle of parliamentarism by which the executive and legislative branches are separate (even though the former is answerable to the latter) and and deputies are free to follow their own conscience. It is the idea of binding deputies (in this case those of the prime minister’s party) that I object to because it would undermine the principle of separation of powers.”

    I don’t understand this? Are you saying that in parliamentary democracies Party representatives vote on legislation according their consciences?

    Not in any parliamentary democracy I am aware of. Is it different in Europe/Norway?

  8. Reidar Visser said

    No Kermanshahi, that’s not the way it is working in Iraq. I am not sure you’re getting the key distinction here. Separation of powers, as a principle, has traditionally been very dear to the Shiite Islamist movements in Iraq. I am not sure why, since the concept of wilayat al-faqih basically cancels it, but nonetheless many Iraqi Shiite Islamists ever since Sadr I kept repeating it. So it is in there, in the Iraqi constitution, and in a more practical way as well: Remember those oaths made by parliament during the inaugural session, and how Maliki and others were excepted? That was because they are not allowed to be members of the parliament and have executive office at the same time, as per the constitution. Thus, in aiming for the 163 mark, the competing candidates primarily want to win their acceptance, and of course they want to rely on that parliamentary basis for future votes. But they cannot dictate it: Imagine if all the deputies had declared a holy oath to implement whatever laws were proposed by the government, what would be the point of having parliament at all?

    Ali, the 19 points have been commented on previously for example here

    http://gulfanalysis.wordpress.com/2010/08/14/the-kurds-propose-to-change-the-constitution/

    and here

    http://gulfanalysis.wordpress.com/2010/08/16/what-maliki-said/

    The full list of demands is here:

    http://www.alquds.co.uk/index.asp?fname=today%5C07z46.htm&arc=data%5C2010%5C10%5C10-07%5C07z46.htm

  9. Reidar Visser said

    BB, the independence of the parliament is probably more marked in a number of European systems that are not of the “Westminster” type. The Dutch system, whereby members of the government cannot vote in parliament, has been described as half way between the US and the UK systems in terms of executive-legislative relations.

  10. Jason said

    http://www.captainsjournal.com/2010/10/18/maliki-turns-towards-iran-will-we-yet-lose-in-iraq/

    The “Captain” occasionally gets a little histrionic, but he makes some good points about how misguided and naive the Obama Admin is in pushing for a unity govt with Iranian stooges who are just biding their time for America to leave next year.

  11. Santana said

    Maliki thinks he has the Kurds on his side (believing Talabani’s blarney)so he is moving on to other challenges or to other areas of deficiency ,like relations with neighbors-for example…yesterday he asked Iran to help rebuild Iraq in a big way over the next 4 years..hahahaha…that’s like asking Al-Qaeda fighters to volunteer in building U.S Military bases in Afghanistan or synagogues in Israel.
    What a joke- like the Iranians really wanna see Iraq stable and back up to world standards!!…the U.S Government must be in shock right now cuz what Maliki is doing clearly conflicts with their own plans and also the sanctions………pretty soon- U.S dissappointment with Maliki will supercede their dissappointment with Chalabi who was the Washington darling for years… Not sure if the U.S will ever learn?I think they will continue to get into these jams cuz they have no idea what Tuqia means.

    Can anyone imagine this- Major construction contracts for Iranian companies (with names like Qassem Suleimani Contracting and body disposal Services ! LOL) where thousands of Iranians can enter Iraq and then mysteriously “dissappear” to pursue other opportunities… …..yeah-right!I don’t care what anybody thinks…. Maliki is toast now- he has been dangling carrots every place he goes trying to shore up support for his PM renewal quest…..Big contracts offered to Syria, Free Oil for Jordan, offering the resolution of all the border and water issues with Kuwait….etc…the sleaziness is so obvious that no body believes any of it….it also shows desperation.

    ” Every country has the government it deserves” Joseph De Maistre 1811

  12. Alan said

    Reidar – your description of how the quest to become PM is simply a matter of acquiring the votes for an endorsement rather than building a coalition is fascinating. It would seem that any Kurdish demands agreed to by Maliki or Allawi for their votes need not form part of a majority view in parliament, therefore either PM can rely on parliament to vote it down anything controversial even if they have personally endorsed a specific proposal.

    Is that not the key to the past success of Maliki? He can disregard specific parliamentary alignments when it suits, or, perish the thought, for the greater good? What does it take for a PM to be ousted once sworn in?

  13. bks said

    Santana, I, for one, would be interested in more about “Tuqia”. Certainly the USA is no stranger to hypocrisy (WMD, e.g.). I would have attributed the problem more to the patronizing attitude of Americans to people in the third world. Particularly a specious disregard for intellectual capacity in the other players. It never seems to occur to the Generals and decision makers in the USA that people in Iraq might have access to the Internet and other media, and can anticipate and respond to U.S. decisions long before their implementation (Operation Moshtarak in Afghanistan demonstrates that the USA still has not learned this lesson.)

    –bks

  14. Reidar Visser said

    Alan, the PM can be sacked on the basis of a petition by one fifth of the deputies, followed by a summoning to parliament and a vote of no confidence by an absolute majority (163).

    In that case, the whole government is resigned and the government in this case actually becomes a “caretaker government” for a maximum of 4 weeks…. Until a new government is formed!

  15. Xenophon said

    Santana: “Maliki thinks he has the Kurds on his side (believing Talabani’s blarney)…”

    So what is Talabani’s actual position at this point?

  16. Reidar Visser said

    For reasons that are unclear, Talabani is adamant that he should have the presidency. This is not a rational demand, since the president has no power and cannot acquire anymore power except after a referendum. Nonetheless, this appears to be a major problem internally among the Kurds, since Barzani is reportedly closer to agreement with Iraqiyya.

  17. Alan said

    Reidar – so I suppose the self-preservation instinct of political parties endorsing a PM limits the likelihood of ousting him as there would be no guarantee they would be part of a new government.

    It seems the best the Kurds could hope for over Kirkuk would be some kind of agreement whereby Maliki (or Allawi) introduces a bill to parliament over it. What else can he possibly offer?

  18. A couple of weeks ago I saw a picture of Talbani in a visit to North America posing with the Iraqi ambassador in Canada, he was as grim faced as can be. At the time, Talibani was quoted as saying “You can’t marginalize an important party as the State of Law”, which I found odd and suggests the marginalization may be the opinion of some high ranking US policy makers who had talks with Talibani at the time. I think Talibani is now firmly in the Maliki camp and his appointment as president means the selection of Maliki as the first to attempt forming the government.

  19. Xenophon said

    Thanks Reidar and Faisal Kadri.

    The logical next question, I suppose, is whether this could/will lead to an overt KDP/PUK split. How can it not if Barzani is leaning strongly–with US prodding no doubt–towards the Iraqiya option desired by the US and Talabani is leaning strongly towards Maliki? One obvious inference would be that Talabani’s refusal to give up the presidency is–among other things–a convenient ploy to obstruct a US-engineered Kurd/Iraqiya/ISCI(?)government formation.

  20. Kermanshahi said

    Reidar, the reason Talabani wants the President position is because in 2005 a deal was made between Barzani and Talabani to solve their dispute over who should be President of Kurdistan, Barzani would be President of Kurdistan if Talabani could be President of Iraq. Both positions are symbolical but it’s also purely for symbolical reasons the two men want these positions.

    Xenophon, a PUK-KDP split will likely mean another civil war for Kurdistan, if not it will definetly mean a KRG without KDP since the “others” will than have a majority and this is what all the other parties want. They won’t do it.
    If the alliance would break down it would be over dispute on Kurdistan internal policies, not for Iraqi national policies, on which all Kurdish parties have exactly the same stance and views.

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