Iraq and Gulf Analysis

The Kurdistan Constitution Is Back on the Agenda: Implications for Iraqi Politics

Posted by Reidar Visser on Friday, 3 February 2012 14:10

The project to adopt a constitution for the federal region of Kurdistan (KRG) can be classified as one of the “silent drivers” of Iraqi politics.

The current draft constitution of the KRG was finalized by the Kurdish parliament in 2009. At the time, a referendum on it was expected but it was eventually delayed. Some attribute the delay to internal bickering among the Kurds; others say pressures from Baghdad played a role.

At any rate, Kurdish politicians – and Kamal Kerkuki in particular – are once more talking about the need to have a referendum on the Kurdistan constitution. Reactions from outside Kurdistan have been quite massive. The main reason the KRG constitution is sensitive to Iraqi politicians beyond the Kurdistan region itself is the definition of the Kurdistan region contained in the draft constitution. This includes several areas in the governorates of Wasit, Diyala, Salahaddin, Kirkuk and Nineveh that are claimed by the Kurds but are not currently controlled by them. Politicians in areas claimed by the Kurds in Diyala, Kirkuk and Nineveh are particularly furious about the renewed talk about a referendum.

The protestors make reference to the constitutional principle that no law passed in Iraq can contradict the constitution itself. Does the Kurdish constitution contradict the Iraqi constitution? Technically speaking, it certainly does. This is so because the definition of the Kurdistan region in the Iraqi constitution is very clear: Article 142 says article 53A of the Transitional Administrative Law from 2004 shall remain in force; that article in turn says “The Kurdistan Regional Government is recognized as the official government of the territories that were administered by the that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh”. Of course, Kurdish politicians will lose no time in reminding us that also article 58 of the TAL regarding the settlement of “disputed territories” was given extended life through articles 140 and 142 of the constitution; their staunchest opponents say the failure to implement article 140 by the constitutionally mandated deadline in 2007 signified its death.

Irrespective of the legal complexities involved, it is noteworthy that in political terms, key allies of Prime Minister Nuri al-Maliki have previously invested considerable energy in criticizing the Kurdistan constitution for being in conflict with the Iraqi constitution. Importantly, this goes beyond predictable resistance from Turkmen allies of Maliki like Abbas al-Bayati. It also includes people like Sami al-Askari, who in the past has specifically spelt out the differences between the TAL definition of Kurdistan and the definition contained in the Kurdish draft constitution.

The revival of the Kurdistan constitutional referendum question highlights the long-term options before Maliki today.

Maliki can choose to work with the Kurds, support their constitutional referendum plus implementation of article 140 (or the light version proposed by President Talabani). This will inevitably make him look sectarian in the eyes of many Sunni Arabs, who are among the main opponents of Kurdish expansionism – and will in turn likely make him more dependent upon Iran.

Alternatively Maliki can work with Iraqiyya, or with splinters from Iraqiyya, in which case it would be easier to keep Iran at an  arm’s length. But this would also raise the prospect of full secession by Kurdistan, possibly followed by armed conflict to settle final boundaries.

More likely, Maliki will try to avoid making too strong commitments to either side. In the meantime, however, he still needs some political allies to get the annual budget for 2012 passed.

25 Responses to “The Kurdistan Constitution Is Back on the Agenda: Implications for Iraqi Politics”

  1. bks said

    Apropos of “silent drivers” isn’t Turkey striving to influence events in Kurdistan?


  2. Reidar Visser said

    Yes, Turkey has a close relationship with the KRG, in particular with the western half (Barzani). In analysing their aims, I think it is increasingly reasonable to keep in mind the legacy of the bitter fight by the Turks to keep the old vilayet of Mosul in the 1920s as part of their new republic.

  3. RS said

    Reider, how does supporting the sunni kurds against the sunni arabs sectarian? They both belong to the same sect!

  4. Reidar Visser said

    RS, I think it will work out that way since the Sunnism of most Iraqi Kurds appears to be secondary to their Kurdishness. If Maliki sells out Sunni Arabs in the disputed territories even the few Sunnis he has in his support base will defect and that will make him look more sectarian.

  5. Santana said

    There are ample reports of the Kurds snuggling up to the Turks right now- especially with recent Turkish comments approving independency for Kurdistan – the Turks have realized that the Iranian threat to take over Iraq has obligated them to reallign with the Kurds….and this means that Iran will not be happy with this Turkish-Kurdish closeness and hence will ask Maliki to make life as miserable as possible for the Kurds….this is my assessment…I think the Turkish-Iranian struggle for Iraq supercedes the great satisfaction Iran would get from screwing Sunnis in Kurdish areas…this can be done later cuz there are priorities for Iran……Iran has been patiently waiting for nine years for the U.S to get the hell out so they can move in and then to see the turks in the way of their evil ambitions is shaking them up… SOL guy from Michigan told a friend of mine in DC ” Hadhola alatrak museeba- lahgeena b Sooryia wa bil Iraq” “…..or….”The Turks are a disaster- following us in Syria and in Iraq” Poor guy….I can see their frustration….how is Iran supposed to control the region and spread wilayat alfaqih and break the sanctions with all these troublemakers in their way ?? LOL…..

  6. observer said

    The Kurds are not ready to separate right now as their oil production is not even at 200k barrels per day and that is minimal even without accounting for the “turkish transit tax”. Iran is looming in the horizon, but after the passing of Talabani, the influence map is going to change and that is probably why Iran is funding/supporting Goran (to keep a counter to the Barazani clan when Talabani is gone from the picture).

    Personally, I believe the Kurdish leadership who proclaim that the Kurds are better off being a part of a federated Iraq, if their rights as individuals are recognized, but more importantly, their rights as a minority are respected. That is not very far from the position of small states within the US which fear that their interests would be subjugated to the interests of the larger states.

    The Kurds are playing their limited cards very carefully. I hope that they do not over play them as they have done in the past and end up being crushed again. Once Iran is gone from the picture as a threat, the situation is going to change regionally and there maybe different dynamics, but for now, i really do not see how separation can be good for the Kurds. But I have been wrong before – so the desire of the nationalist movement may trump rational thinking once more. Who knows.

    It is a new Middle East after all and the map may be redrawn once Asad is gone. Do note the Iraqi Kurds extending a special hand to the Kurds of Syria. I am sure that has not gone unnoticed. Are we looking at a changing map of the middle east?

  7. Reidar Visser said

    Well, the UNSC members are not exactly making tremendous progress towards ousting Asad right now, are they??

  8. observer said

    not really…. But the syrian people have lost their fear already. It will be hard for Asad (not impossible) to survive this in the long term. A people that are willing to die for their freedom will not be subjugated.

  9. observer said

    If you do not have time to watch it all, go to minute 45 and watch the next two or three minutes.

  10. Mohammed said

    Dear All:

    Why do the politics of Iraq always become an issue about personality instead of policy? Here are simple questions with respect to the issues of the day:

    1) Let’s pretend Iran would have no say regarding SOL views on policies, can you please explain to me how SOL views about Kurdistan, disputed territories, oil-gas law would be any different? Irrespective of Iran, it would seem that they would favor strong central control over natural resources, and would like to prevent the kurds from expanding their influence to disputed territories. Let’s ignore the fact that it is al-Maliki acting in this way, and ask whether such policies are overall beneficial or harmful for Iraq.

    2) Over the last two years, I have tried to follow the political news out of Iraq very carefully, but it seems that Iraqiya really doesn’t have any core platforms except that they hate al-Maliki. What is their view of the oil law? Disputed territories?

    Iraqiya needs to accept that the Islamist shiite block are in the driver’s seat (with or without Iran) and adopt policies accordingly. If I was Iraqiya, I would try to minimize conflict right now even if al-Maliki tries to bait them into one. It takes two to tango. If a policy makes sense for your constituents, then you should support it no matter if it comes from the devil himself. As long as SOL and Iraqiya are at each other’s throats, there is no way you are going to pass legislation to address the kurdish issues that makes sense.

    As long as the security situation is tenuous, and people are unemployed, sectarianism will run rampant and Iraqiya will lose out. The best way for secular politics to take hold in Iraq is to put Iraq on the fast track to economic prosperity. Increase oil production, electricity, health, education. When people have money and security, they will start thinking about the political leaders that are the most effective in delivering sound policies instead of who can protect them from the other sect.

    Is it possible to create two oil-gas laws? One for most of Iraq (except federal regions (like Kurdistan)), and get a majority of MPs to pass that legislation now, and negotiate with the kurds later about oil-gas law that applies to federal regions. It is not fair that the Kurds hold up the rest of Iraq hostage.


  11. observer said

    You either do not understand or you do not want to face reality. Da3wa is out to make itself to be the owner of She3a voters. Period. The way they are handling the issues of the government is unilateral and they are leaving little else for the other sectors of Iraqi society to air their difference or voice their concerns. You like that – fine for you, but us who want an Iraq that cares about the legitimate conners of ALL Iraqis have a problem with the approach of the one true leader and one true party.
    1) Maliki will promise (and did) the world to anybody who is willing to let him stay in power and every body knows that – even the Kurds. Watch the interview with allawi all the way (I know – force yourself) and you will see how the agreement on Irbil I was reached and how Maliki gave away the world to keep his seat and then proceeded to use every trick int eh book to get away from what he promised.

    2)oil law – why do the decisions have to be with one person like Shehristani and Malik want? Isn’t Parliament the seat of all power? Or is it the PM? What is wrong with giving the decisions making to a committee of elders. you know that the real reason is that if you give the decision to a committee then the kick backs that Isam Alasady shares with Ahemd Maliki will stop. Enough said for now.

    I will not bother with the rest of your claims against Iraqia. You ware one of the many thousands of Iraqis that are willing to talk a good game, but when the rubber hits the road you are as sectarian as any sunni wahabi. Sorry my friend but you and I have had many interactions on this BBS and you are no different than the many hundreds I have spoken to who are not wiling to trust their brains but will trust their heart in deciding the fait of this nation.
    Peace – an out.

  12. Reidar Visser said

    What I just don’t understand is why so many sensible people actually believed that the Arbil agreement could work when it was in fact perfectly clear that it was complete sci-fi, especially given all the obvious infractions of the Iraqi constitution and the resultant opportunities for reneging on the agreement.

  13. observer said

    beats me RV !!!!

  14. Reidar,
    Everybody except the US was skeptic about Arbil from the very beginning. (Everybody) thought that the US will play its part in making sure that all parties (read Maliki) will keep his word, the US didn’t or couldn’t. All constitutional loopholes could have been plugged if there was goodwill. Sorry for the simplistic explanation but I think it fits reality.

  15. Mohammed said

    Dear Observer:
    With all due respect, if you accuse me of sectarianism, then God knows how you are able to have any productive discussions or negotiations with Islamist block MPs. Again, why can we not just stick to policy debates rather than pretend to know what is in each other’s hearts? If there were Dawa guys on this forum, I would be criticizing their policies as well.

    Regarding Allawi’s interview, I am sure that a secular Iraqi would find him quite charming in the interview, and I give him all the credit in the world in peacefully ceding power when he lost as PM. However, I do not find all of his arguments to be convincing and I think he is very selective in the details he discloses. I do agree with his final assessment that Iraq’s current lot of politicians have failed the Iraqi people and do not deserve to govern (and I include the Islamist block in that category). Regarding Erbil, since Allawi says that they all signed the agreement, why not publish it?
    Allawi in the interview praises the example of Kurdistan. Are you kidding me? Need we forget that they fought a bitter civil war in the 90s (so bitter in fact that Barzani INVITED Saddam to come in and help him against Talabani, and in the process wiped out many Iraqi opposition folks in the north at the time). You want a perfect democracy, well it is not going to happen overnight (and kurdistan is a far more homogenous society in comparison to the rest of Iraq).

    Regarding your response, you stated: “Da3wa is out to make itself to be the owner of She3a voters. Period. The way they are handling the issues of the government is unilateral and they are leaving little else for the other sectors of Iraqi society to air their difference or voice their concerns. You like that – fine for you, but us who want an Iraq that cares about the legitimate conners of ALL Iraqis have a problem with the approach of the one true leader and one true party.”

    The fact of the matter is that SOL/national alliance gained the most votes of the She3a. Whether you want to call that owner or not, they were the largest vote-getters of shia. Furthermore, I do not agree with your characterization that they own ALL the She3a voters. Certainly the Sadrists remain a potent force in Iraqi politics and were pretty much the king makers in the last election. My guess is that the people who voted for Sadr before would vote for Sadr again (and they did not appear to be fond of Maliki). ISCI is pretty much irrelevant now, except for Ammar al-Hakim always waiting in stand-by with his suitcase ready to hop on a plane to any destination to kick up headlines, make al-Maliki look bad, and make himself look important.

    However, I submit to you that even without Iran, the islamist blocks of Iraq today would be the dominant force in the country, and perhaps even more so than they are now. You may be seeking this magical “power-sharing” formula, but we all know that this is not going to happen (i.e. Allawi is not going to get the policy council he wants). I am a realist. The islamist shiite block is in control right now, and unless you have constitutional means of unseating them now with a vote of no-confidence, you need to move on.
    Regarding sectarianism, If it was up to me, I would advise the PM to give the sunni arabs twice the number of positions in govt in comparison to their relative population size just to make sure that they feel that they have a stake in the new Iraq. That isn’t happening. But, Iraqiya did receive several cabinet positions as well as the speakership of the parliament. That is not peanuts, and if they played their cards right, it gives them an opportunity to make a difference for their constituents. Ultimately, they have a voice in parliament that is commensurate with their population. Iraqiya should vote in ways to represent the people who voted them into office.

    How is it sectarian of me to suggest that Iraqiya develops a laser-like focus on improving the economic situation of Iraq by the very ministries you control, and your voice in parliament? I am merely suggesting on working on areas where there is benefit for your constituents. Regarding the oil-gas law, looking at Reidar’s prior posts, the different drafts regarding input from parliament vs PM vs oil ministry have only minor differences. OK so Ahmed al-Maliki will be able to get more kickbacks in one version vs the other.
    You either muster enough people in parliament to bring charges against him, or you have to proceed forward with the assumption that there will be corruption for the time being. My point is that even if people skim off 10-20 billion dollars a year in corruption, I would rather that Iraq develop its resources as rapidly as possible so that the average joe sees something instead of languishing in poverty as they are doing now.
    In the end, the central government cannot impose its will on Mosul or Anbar with respect to development of resources irrespective of whatever legislation you pass , just based on pure practicality alone. Facilities will need to be safe from attack and sabotage, and if locals are not happy, my guess is no project can be successful. The point though is that until legislation is passed, things will remain at a stand-still.
    You are talking about sunnis not having a voice. I am talking about something way more basic. Average iraqis cannot have a voice when they are wondering where their next meal will come from, or if your child was kidnapped since he was an hour late from school. I find it remarkable that the people of Iraq all have the same concerns irrespective of their sect, however it is their purported leaders who claim to have differing sets of problems.
    I am not being sectarian when I tell you that your secular vision for Iraq is not possible right now. It may be possible ten years from now…I would love to see that day come, but in an as orderly way as possible.

  16. Samir Abdallah said

    Everybody talks about Erbil agreement. Allawi said that Erbil agreement included nine agreements signed by all parties. My question is why nobody is courageous enough to publish what has been signed by all in Erbil?

    After more than a year, the least that an be said about that behavior is that every party that signed the agreement knows that it has something obviously unconstitutional, or even something worse that makes it embarrassing for all signatories, if published.

    When the major disagreement is implementation of Erbil agreement and the citizens don’t know exactly the wording of it is, political alignment of the people will be based on blind faith ( or sectarian affiliation) rather than reasonable judgement. And this is far from a democratic behavior.

    It is difficult for ordinary people to trust the political elite in Baghdad that lacks transparency to this extent.

    I am really disappointed with all major political parties in their handling of existing crisis in Baghdad.

  17. observer said

    Your posts are all attacks on iraqia and how incompetent they are with lip service to the real cause of the problems in Iraq, namely Da3wa and company. That is the iraq you want. Great for you and the rest of Iraqis who support Da3wa and find any reason good enough to through stones at iraqia. Continue supporting Da3wa all the way to the end of Iraq.
    Cheers and enjoy wiliat al Faqeeh II

  18. observer said

    Let the freaking Iranians lift their hands and lets see who the sadris and Majlis are going to support. Again you guys are trying to pretend that there is normal democracy in iraq and that the parliament can make decisions on its own. Sorry but I really have no time to indulge in theories and hyperbolic debate and endless threads. Again – you are free to do what you wish. Let Da3wa take the balme wen the time comes, though I am sure you all are going to find a way to pin the failings on Iraqia 😉

  19. bb said

    I too would like to know the core policy platforms of Iraqiyya. Are there any? Does it promise to return the IHEC to parliament away from the executive? If not, why not?

  20. observer said

    bb.. You havbe google on your computer and you can do your own research. Instead of questioning Iraqia – could you possibly give me a summary of the goals of Da3wa and Maliki in building a “state of law” government through the politicization of courts and centralization of decisions, etc., et. Maybe you can convince me of voting for SOL in the next elections.

  21. bb said

    Dawa/SOL is not a party I would want to vote for if I were an Iraqi. Being secular and centre left, mystrong preference would be Iraqiyya. Obviously I would not have the slightest interest in convincing you of the merits of SOL. Hence I want to know if Iraqiyya has core policy platforms?

    If not, then would suggest that the party might go through the hard yards, however painful, of arging them through systematically and then adopting a set of core principles that will give the party definition in the minds of the voters to whom they have to win over; and also from which they can devise sound policy? Is this too much to ask?

  22. observer said

    bb, i will humor you and assume that you really have no idea what the program of iraqia is all about….

  23. bb said

    Thanks. That was very good. Substantial. No did not know the detail of Iraqiyya’s program, that why I have been asking you about it. I don’t read or speak arabic, but google translation has now made that possible, if only in the rough.

    Reading the platform took me back to the election in Jan 05. During the campaign ran an interactive quiz. It went through each policy issue and listed each party’s policy without identifying the party concerned. You could tick a box for every policy you agreed with and at the end discover which party you would be voting for if you were in Iraq. It turned out my policy preferences were aligned with the Kurds, closely followed by Accord and then a smaller party – think it was Alusi’s. I was a bit surprised to discover how much the Kurdish alliance and Accord seemed to have in common, at least in their policy pitches.

  24. bb said

    Sorry, my ageing braincells are getting mixed up – I mean’t allawi’s party in 05, not accord!

  25. observer said

    allawi’s party in 05 wat National Iraqia (a smaller version of todays Iraq that included the communists!).

    You would be surprised at how close Barazani and Allawi are on how Iraq is to be governed and how they see the future.

    Barazani and Allawi of course are seculars and are fiercely independent (do not mind the “opinions” here and elsewhere that Allawi is a Saudi or Qatari stooge).

Sorry, the comment form is closed at this time.

%d bloggers like this: