It was just under four years ago that the semi-autonomous region of Iraqi Kurdistan passed the draft of the Constitution that was supposed to guide legislative and political goings-on in the area, which has its own parliament and legal system. A public referendum was supposed to be held shortly afterward to ratify the Constitution. But that was then, in August 2009. And this is now - and not much more has happened to make the Iraqi Kurdish Constitution a reality.
But in early May 2013, a statement posted on the Iraqi Kurdish President’s website has raised the topic again. The president of the region, Massoud Barzani, has said, once again, that the public referendum on the Constitution should be held because “only the people have the right to accept or reject the Constitution”.
“It’s not acceptable that political forces decide the fate of the draft Constitution on behalf of the people,” Barzani argued. “This is against the law and it contradicts our belief in popular power. It’s also against our democratic principles.”
Which sounds good – but, his critics say, may actually be Barzani’s way of staying in the presidential seat when in fact, his term is almost up.
The Iraqi Kurdish Constitution has 122 articles and was prepared over a period of seven years. It was then approved by the Iraqi Kurdish parliament on August 24, 2009. Of the 97 MPs attending that session, 96 of them approved that draft.
However due to the timing – many consider that parliament something of a caretaker government with a lack of opposition at the time – many critics of the current Constitution think that the approved draft isn’t appropriate. The approved draft, they say, gives security forces too much power and it also changes the Iraqi Kurdish system from one with a parliamentary focus to one with presidential power as a focus.
Over the past few years heated debate on the draft Constitution finally saw the Iraqi Kurdish parliament, complete with opposition parties this time, decide to send the Constitution back to the drawing board for amendments before any public referendum was held. That decision was made in March 2011. But even though this decision – to resubmit the Constitution for amendments – was agreed upon by most of parliament, including Iraqi Kurdistan’s two major political parties, the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK) – nothing further has happened.
Recently President Barzani announced that parliamentary elections would be held in Iraqi Kurdistan in September and his party, the KDP, has demanded that the long-planned public referendum on the Constitution be held at the same time.
However their closest political ally, the PUK – the two parties, former enemies turned allies, generally share power throughout the region – does not agree. Together with Iraqi Kurdistan’s opposition parties, the influential Change Movement, or Goran, and various Islamic parties, the PUK has suggested the Constitution be amended first.
Many of Barzani’s critics believe the pressure he is applying for a referendum has more to do with rules around whether he can remain President of the region for another term. According to current laws in the semi-autonomous region, the President of the region may only remain in power for two terms. A term is four years. And Barzani will complete his two terms in the middle of this year.
And while his own KDP party may like the idea of Barzani staying on as president, the PUK isn’t so keen. “There should be a national consensus on these amendments,” Azad Jindiyani, the spokesperson for PUK, told NIQASH. “The Constitution should not become another reason for disturbing the political environment and it shouldn’t lead to more fragmentation and disturbance.”
For years, the PUK and KDP have split the political power between themselves; Barzani’s desire to remain President threatens the peace of this partnership. Jindiyani said his party supported the Constitution going back to parliament for amendments, and that these needed to be approved by the majority. Out of 111 seats in the Iraqi Kurdish Parliament, 35 are held by opposition parties.
“The Constitution should be a reason to bring all parties closer,” Jindiyani said. “A true Constitution can only be achieved by national consensus.”
“Most of the political forces in Iraqi Kurdistan, including the PUK, believe that the Constitution should be re-submitted to Parliament and they all agree that the system should be a parliamentary one,” Barzo Majid, a leading member of the Change Movement in Erbil, told NIQASH.
By itself, the KDP won’t be able to change the Constitution anyway, Majid pointed out. “If it tries, it will fail," Majid explained. “The KDP is using this issue to exert pressure on other parties to accept Barzani’s presidential nomination for a third term, or for them to accept an extension of the current term. But this is against the law and we strongly oppose it," he concluded.
The Kurdistan Islamic Union, which holds 6 seats in the Iraqi Kurdish Parliament, making it the second biggest opposition party in the region, is taking the same track. They also want the Constitution to go back to parliament for amendments – and that’s despite the fact that all their MPs voted for it back in 2009.
“It’s true that our MPs voted for the Constitution at that time and it’s true we wanted a referendum held on it,” Bakir Halandi, a member of the Kurdistan Islamic Union, said in a statement to NIQASH. “However, the situation has now changed and we are determined to re-submit the Constitution to parliament. It is not acceptable to have a parliamentary government in Iraq and a presidential system in the Kurdish region,” he explained.
However the KDP also has its own apparently reasonable arguments. The party believes that a Constitution passes through various stages on its way to ratification and that none of those stages should be ignored. The Constitution had already been voted on by parliament back in 2009 and was ready for a referendum then. That shouldn’t be ignored, they say.
Countering this, opposition parties argue that the Constitution was endorsed during a caretaker government period; they also say that, while the Constitution took years to research and draft, some of the Constitution\'s articles were changed within a matter of days.
The latter issue could lead to legal challenges. Nouri Talabani was the only MP who voted against the Constitution in 2009 - despite the fact that he was part of the committee that drafted it. “The Constitution contains many legal flaws,” he says. “And the drafting committee actually changed around 22 articles and paragraphs within two months, and while one third of its members were not present.”
Talabani explained that other articles were also changed just one month before Parliament voted on the Constitution. “Those articles related to the nature of the system, the powers of the region\'s president, conditions related to his election and the region\'s borders. These articles are obviously controversial today,” Talabani said.
Former minister Chnar Saad Abdullah, a leading member of the KDP, says she doesn’t agree with claims that the KDP wants this version of the Constitution to further its own ends. “The Constitution of any country could never be drafted to serve the interests of certain people or certain political entities,” Abdullah argued. “A few things - the conflict in the Kurdistan region, the problems some political parties have with the KDP and anti-Barzani feelings – just mean that everyone is blaming the KDP unfairly.”
“If all the political parties can’t agree, then surely the best mechanism to resolve this issue is the holding of a referendum?” Abdullah suggests. “This is a widely accepted and democratic mechanism.”