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To The Rescue:
Can The Iraqi Constitution Save Kirkuk?

Mustafa Habib
Iraqi politicians are invoking the Constitution to potentially solve problems in northern Iraq. They seem to have forgotten that they have been trying to change the flawed document since it was written.
25.10.2017  |  Baghdad
Iraqi members of Parliament being sworn in. PM Haider al-Abadi sits at the far right.
Iraqi members of Parliament being sworn in. PM Haider al-Abadi sits at the far right.

During the recent crisis over who should be in charge of what in northern Iraq, there is one potential saviour that is mentioned repeatedly, and by both sides to the dispute: the Iraqi Constitution.

Whether Kurdish or Arab, politicians and locals have been invoking the Constitution, suggesting that it is being breached and then suggesting that any further discussion take place, according to constitutional guidelines.

Iraqi Prime Minister Haider al-Abadi has said his forces were acting in accordance with the Constitution when they took control of parts of northern Iraq. After this tense moment, Iraqi Kurdish officials said they were ready to negotiate in accordance with the Constitution.

Some politicians have even suggested that problems with the current Constitution are so ingrained that it would be better to scrap this version and come up with a whole new one.

Although intentions may – or may not be - be good, there’s one big problem with this idea: The Iraqi Constitution itself has shortcomings and has had for years. It is almost like all these politicians have forgotten that the Constitution, written in haste and adopted in 2005, contains clauses that say the Constitution is flawed and needs amendment.

Legal experts have pointed out a lack of clarity in the document as well as a number of serious contradictions and ambiguities. At the end of some of the articles, it says, “to be organized by a law”. Unfortunately, some of those laws don’t even exist yet.

Iraqi politicians have tried to change this. However, despite many attempts, they have been unsuccessful in making any changes.

“There is a reality that we must acknowledge,” MP Ibtisam Hashim al-Hilali, a member of the Iraqi Parliament’s legal committee in Baghdad, told NIQASH. “The Constitution was written hastily over a period of six months and it contains contradictory legal provisions which require clarification.”

In June 2016, the current parliament decided to form a special committee to look into these issues. But, as is often the case in Iraq when it comes to the most important issues, the various feuding political blocs failed to agree on the members of the proposed committee. Then the issue was shelved due to its controversial nature.

But it is also true that right now these amendments are more important than ever, as the Constitution has been mentioned several times as the basis upon which officials from the semi-autonomous region of Iraqi Kurdistan could negotiate with the federal government in Baghdad to work out what happens next.

The current parliament has six months to go before the next federal elections are scheduled. But given the division inside the parliament and even inside the different political blocs and parties, any sort of progress on this issue seems unlikely.

“The Constitution has points within it that relate to the current political crisis,” al-Hilali agrees. “But it needs to be amended due to the various conflicts that have taken place over the past ten years.”

The history of constitutional amendments in Iraq is long and troubled. In fact, Article 142 of the Constitution states that MPs should form a special committee and come up with a report on necessary amendments within a period of four months. After a decision was made on the recommendations, the committee would then be dissolved.

In fact, a committee was formed and existed between 2005 and 2009; it was headed by senior Shiite Muslim politician, Hammam Hammoudi, and members represented all sectors of Iraqi society. On May 22, 2007, the committee submitted a list of suggested amendments and its work should have been finished within four months. Ten years have passed and there has been no action on those amendments.

According to the committee’s report, which remains in the government’s archives, the main points of contention, which impede any sort of constitutional reform, are the same ones that cause trouble in Iraq over and over again. Perhaps not surprisingly, Article 140 remains at the top of this list.

This article deals with the so-called disputed territories. The disputed territories are areas that the officials in Iraqi Kurdistan say belong to the Kurdish region but which the Iraqi government says belong to Iraq proper. Part of the problem around these areas is so-called Arabization – a process started by former Iraqi leader Saddam Hussein as he tried to eliminate the Kurdish people and force Kurds off land they had always occupied; he brought in Arab Iraqis to take their place.

Amending some of the articles may be nigh on impossible, given current rules for making a change.

Article 140 sets out to resolve this by outlining a series of steps that should be taken to resolve who exactly the disputed territories belong to – these are, firstly, normalization - a return of Kurds and other residents displaced by Arabization – followed by a census taken to determine the demographic makeup of the province's population and then finally, a referendum to determine the status of disputed territories. Obviously whether a territory is home to mainly Kurds or mainly Arabs will have an effect on who can lay claim to the area.

After the extremist group known as the Islamic State began to take control of territory in the north of Iraq, the Iraqi Kurdish military took the initiative and took control of nearby Kirkuk, a disputed area they had long wanted via Article 140. In fact, Iraqi Kurdish politician Massoud Barzani went as far as to say that Article 140 had now been implemented and that there was no point discussing it anymore.

However as recent events indicate – when the Iraqi military took back control of Kirkuk – his supposition was wrong.

Of course, there are also other controversial articles in the Constitution. These include Article 115 which looks at the powers the provinces and regions may have and Article 41 which covers personal status laws – these are the laws around marriage, inheritance, birth and so forth. Other articles defining how oil wealth is distributed and how much real power the country’s president should have, are also troublesome.

The reasons for inaction on these articles are clear. The Kurds don’t want to see Article 140 amended, the Shiite Muslims don’t want to see presidential powers expanded, because this post is traditionally held by a Kurd, and the Sunni Muslims and Shiite Muslims squabble regularly about personal status laws.

In fact, some politicians have even suggested that problems with the current Constitution are so ingrained that it would be better to scrap this version and come up with a whole new one.

In fact, amending some of the articles may be nigh on impossible, given current rules for making a change, as Iraqi MP Talal al-Zubaie points out. For some of the changes, a special committee is required, which then submits proposals for change, which must then be voted on and achieve an absolute majority in parliament to pass. That means over two-thirds of the 328 MPS need to agree. After that the amendments need to be approved of by a public referendum, that happens two months after the parliamentary vote.

“Under current conditions it is extremely difficult to meet these conditions,” al-Zubaie argues. “Amendments are crucial but they should be made in a calm atmosphere. Right now, disagreement is the most prominent feature of the political scene here. Political blocs usually take several months to pass one simple law. You can imagine how much time they would need to make actual constitutional amendments.” 

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