In April, the Parliament in northern Iraqi kurdistan decided that the Constitution of the semi-autonomous region should be re-drafted. When this decision was made, a committee was formed to re-draft the seminal laws and to hold a referendum on it within 90 days.
That process is now underway. A committee – the Constitution Drafting Committee - was created in late May with 21 members, all of whom represent a variety of political interests in Iraqi Kurdistan.
However it quickly became clear that the birth of the new Iraqi Kurdish Constitution would not be an easy one. When it comes to matters of national importance, Iraq's Kurds tend to focus on their shared ethnicity. However when it comes to more regional matters, like a new Constitution, each political party involved has its own agenda. And as the work to re-draft the Constitution goes on, it is becoming apparent that each of the parties want to leave a mark upon it.
And there are several areas that require work before Iraqi Kurdistan can go further with the new Constitution.
Rows Over Religion
The political parties with an Islamic bent are focussed on parts of the legislation that make Islamic religious law, or Sharia law, the basis of the region's legal system.
On June 28, members of the Constitution Drafting Committee met with the Kurdistan Clerics' Federation. “Religion is very important because the Constitution covers all aspects of society,” a senior member of the group, Jafar al-Kawani, told NIQASH. “Given that the majority of this society is Muslim, the issue of religion and co-existence between religions should be mentioned clearly in the Constitution.”
The Clerics' Federation believes the Muslim identity of most of Iraqi Kurdish society needed to be noted and that Sharia law should underpin all laws, including new laws, in Iraqi Kurdistan.
Obviously this emphasis on religion is not desired by secular parties in Iraqi Kurdistan and their first request to the Constitution Drafting Committee was that Article 6 of the current Constitution should be cancelled – this says that Sharia law is the main source of law in Iraqi Kurdistan.
“Keeping Article 6 in the Constitution paves the way for a male-dominated society that oppresses females,” says Bahar Munther, a women's rights and civil society activist from the Kurdistan Secular Centre, or KSC, which works to separate church and state and which recently launched a campaign to collect 50,000-signatures to abolish Article 6.
Munther says that the KSC believes that Article 6 not only prolongs sexism but that it also allows the violation of rights of minorities and other religions, as well as encouraging differences between the citizens in Iraqi Kurdistan.
The KSC, Munther says, wants, “the source of legislation to be the Universal Declaration of Human Rights and international laws and treaties”.
Despite this Kawani says that he believes that the religious parties will win this particular battle. “If this requires public pressure, we could organise this because the majority of people in Kurdistan are Muslim,” Kawani told NIQASH. “We can gather hundreds to demonstrate in front of the drafting Committee's offices to push them to enshrine Islamic law in the new Constitution.”
Members of the Constitution Drafting Committee say that religion has been one of the most heated and topical debates. “During the last three weeks we have met with dozens of political parties and different people and we are now familiar with a wide range of opinions,” says Adnan Othman, a member of the Constitution Drafting Committee and representative from the opposition Change movement. Othman noted that he and his colleagues were under a lot of pressure from all sides. “All of these opinions will be taken into account but in the end,” he explained, “the Constitution does not have to be acceptable to every single party. That's not a condition for its existence.”
His own personal opinion on this contentious topic? “This is a civil Constitution and as such it should be based on principles of equal citizenship and equal duties. This means it shouldn't be religious.”
However, Othman also adds that the religious nature of society here must also be taken into account, as it has been elsewhere in the world.
Power and the Presidency
The other very controversial topic has to do with power sharing in the region and the future of Iraqi Kurdistan's leadership. These topics have seen the region's two major political parties – the Kurdistan Democratic Party, or KDP, and the Patriotic Union of Kurdistan, or PUK - facing off. The KDP wants a presidential system where the people of the region elect their president, rather than the Parliament. However the PUK favours a parliamentary system, where MPs choose a president.
Farsat Sofi is a senior member of the KDP and he heads the Constitution Drafting Committee. “We at the KDP place great importance on our principles and we believe that the President of a region should be elected by its people,” Sofi told NIQASH. “We believe that this is a more democratic process and gives voters more rights. The voters gave Parliament the right to pass laws and ensure the laws are implemented but it didn’t give Parliament the task of electing the President. That is the people's right,” he argues.
“The members of the [Constitution Drafting] Committee will discuss this issue but if they do not agree, then the people will be asked to decide in a referendum,” Sofi explained.
Logistical Road Blocks
Should some kind – indeed, any kind - of consensus be reached, then there are further logistical roadblocks the would-be Constitution needs to get past.
Firstly, the tenets of the Iraqi Kurdish Constitution should not violate any tenets of the federal, or Iraqi, Constitution. On the other hand, there are many people in Iraqi Kurdistan who believe that their Constitution should be completely independent of the federal one. Included in this is the idea of independence for Iraqi Kurdistan.
The second problem is concerned with the so-called disputed areas in Iraq. These are areas that Iraq says belong to the federal state whereas the Iraqi Kurdish believe they should be part of their semi-autonomous region. For example, current debate centres on Kirkuk. This area, with a diverse population that includes Iraqis of both Kurdish and Arab ethnicity, is a disputed one. But it is currently controlled by Iraqi Kurdish military after the Iraqi army deserted the area thanks to attacks by the extremist group known as the Islamic State. Opinions on whether the Iraqi Kurdish should give Kirkuk back to Iraq once the security crisis is over are split.
And the third and final roadblock to the realisation of Iraqi Kurdistan's own Constitution is voting. If the draft Constitution is approved by two-thirds of Iraqi Kurdish MPs, then a referendum will be held that asks the people of the region for their approval too. However the way the security situation stands at the moment, this would be very difficult.
“If the Constitution Drafting Committee can reach a consensus and Parliament approves of it then I believe the people of Iraqi Kurdistan would also vote for the new Constitution,” says Nouri Talabani, a former member of an earlier Constitution Drafting Committee and constitutional expert. “The Constitution creates stability, builds democracy and pluralism and leads to a separation of powers and a respect for the rule of law.”
“Such a Constitution would gain Iraqi Kurdistan legitimacy,” adds Talabani, who hopes that the Constitution will have been completed before the end of this year, “and it will lead the region to more active participation in Middle Eastern development, reflecting Iraqi Kurdistan's political status.”