IRAQ - The Kurdish demands: Some Legal and Constitutional Hurdles

The Kurdish Demands: Some Legal and Constitutional Hurdles

Posted by Reidar Visser on Monday, 18 October 2010

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.

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 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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