Violation of the Iraqi Constitution by the central government of Baghdad
Since the First World War, the Kurdish people have been forced against their will to become part of Iraq and subject to the interests and conflicts of the great regional and international powers, although they have an independent political-cultural identity that is alive by thousands of years in the territory of Kurdistan.
The various Iraqi governments that have succeeded have adopted over the years discriminatory policies towards the Kurdish people, violating their rights and freedoms. Among the major crimes we can remember: the Anfal operation ordered and conducted by Saddam Hussein's regime, the extermination of thousands of Kurds with the widespread use of chemical weapons, particularly in the city of Halabja, deportation and forced transfer of thousands of families .
In spite of this, the Kurdish political leadership played a leading role in the process of the liberation of Iraq in 2003 and in the subsequent democratic transition process as well as in the creation of a new constitution for Iraq, voted through a constitutional referendum in 2005 .
Unfortunately, the ruling political class in Baghdad has systematically violated the Constitution, pursuing a policy of exclusion and marginalization of the various components of the Iraqi people. The central government, instead of supporting the rights of all Iraqi members, threatened the use of force, commencing an economic war against the Kurdish people, and excluding the Sunni component to the point of favoring the emergence of terrorist formations, such as Da 'esh in 2014.
Because of misleading sectarian policies, Iraq has become the battlefield for regional conflict in the Middle East, millions of displaced people, thousands of people have been killed, many cities destroyed, resulting in destruction of historical-cultural heritage site and examples of civilization.
In this note, we want to illustrate how the Iraqi constitution of 2005 was emptied of content and of its democratic and federal essence by the government of Baghdad through the systematic violation of its articles.
For this reason, the people of Kurdistan have decided freely to exercise once and for all the right to self-determination through a democratic and peaceful referendum.
Violation of the principle of federalism and partnership
The principle of partnership and pluralism at the base of the federal system must be ensured by a set of institutions and constitutional procedures in order to preserve the unity of the country.
The principle of partnership is based on respect of any ethnic, religious or sectarian , and geographic - historical identity, expression of any federal region, so that it is taken into account in the decision-making process.
The application of the partnership principle in a federal state contemplates two dimensions:
1. Institutional: the creation of institutions to apply this principle. One of the most important institutions to ensure the rights of regions in a federal state's decision-making process is the federal parliament, which is composed by representatives of all federation regions.
2. Processual: ensuring the effective participation of regions in the decision-making process. That said, in order to avoid damaging the principle of partnership and not to take simple or absolute majority decisions, which often lead to impose the opinion and interests of large regions or federal authorities on the opinion and interests of small regions or provincial authorities.
Although the Kurdistan region has respected the principle of partnership, the Iraqi authorities since 2005 have violated this principle, undermining the democratic and federal system of the Iraqi state, not fully applying the Constitution, which reads:
Article 1
"The Republic of Iraq is a single, independent, federal state, with full sovereignty. Its system of government is republican, representative, parliamentary and democratic. This constitution guarantees the unity of Iraq”.
Sadly, after more than twelve years after the entry into force of the Constitution, the Iraqi State is far from being a true federal state due to the failure to apply the principles underlying the federal system such as the principle of shared legislative power, the principle of partnership and the principle of the existence of several regions.
Article 4
"the Arabic and Kurdish languages are the two official languages of Iraq".
This article has guaranteed a genuine partnership between the two key components of the Iraqi state, but in practical terms the central government has never considered the two languages at the same level. For example, the Kurdish language is still absent on the national currency.
Article 9
Paragraph 1, letter a) "The Iraqi armed forces will be composed of the components of all Iraqi people without any discrimination or exclusion (...) it shall defend Iraq and shall not be used as an instrument of oppression against the Iraqi people, shall not interfere in the political affairs (...)" In letter b) "it is forbidden the formation of military militia outside the framework of the armed forces".
There is currently a lack of balance in the Iraqi army components and the presence of a number of military militias outside the army, such as Hashd al Shaabi militaries who have entered into country political affairs.
Article 12
"The flag, national anthem, and emblem of the Iraq shall be fixed by law in a way that represents the components of the Iraqi people."
The legislator has never legislated in this regard.
Articles 48 -65-137
"The federal legislative power shall consist of the Council of Representatives and the Federal Council"
A legislative council shall be established named the "Federation Council," to include representatives from the regions and the governorates that are not organized in a region (...)
"the application of the provisions of the articles concerning the Federal Council shall be postponed until until the Council ofRepresentatives issues a decision by a two-thirds majority vote in its second electoral term that is held after this Constitution comes into force.”
The Federal Council representing all the components present in Iraq has never been established. Moreover, to date, the Iraqi parliament operates in accordance with the principle of a simple or absolute majority, without taking into account the opinion of the regions or governors. Consequently, the interests of the regions and provinces are at the mercy of the larger parties and parliamentary blocs (especially the Shiites, which represent most of the Iraqi people and therefore have the majority in parliament) without considering the interests of Sunni and Kurdish members. This is the demolition of the principle of partnership and there is no signal that the Iraqi parliament begins to discuss a law about the formation of the Federal Chamber.
Article 92
(I) "the Federal Supreme Court is an independent judicial body, financially and administratively"
(II) " The Federal Supreme Court shall be made up of a number of judges, experts in Islamic jurisprudence, and legal scholars, whose number, the method of their selection, and the work of the Court shall be determined by a law enacted by a two-thirds majority of the members of the Council of Representatives"
The presence of a Supreme federal court is vital to the proper functioning of a federal state, as it should ensure the implementation of the constitution and settle disputes between the regions and the central government. However, the Iraqi parliament has never followed the provisions of Article 92. In addition, the central government, particularly during Noori Al Maliki's presidency, operated in a way that this court did not function independently, with particular reference to the distribution of the seats (the Court is made up of a number of Shariah scholars) and the various interventions by the federal executive authority in the work of the Court, which have undermined its reputation and neutrality.
Article 105, 106, 107
The correct implementation of the partnership principle, with the aim of guaranteeing the rights of regions and governatorates, as provided for in article 105 "a public Commission will be set up to guarantee the rights of the regions and governatorates" 106 "the Commission shall be composed by expert from the federal government, the regions and the governorates (...) to verify the fair distribution of grants, aid and international loans (...) to ensure transparency and fairness in appropriating of funds " article 107 "A council named the Federal Public Service Council shall be established and shall regulate the affairs of the federal public service ", was dismissed by the central government that has made no move towards the establishment of the organs described above.
Article 117,118,119
It is evident the lack of real a intention of the federal government to implement the Iraqi constitution as a whole, in particular with regard to the application of article 117: "this Constitution shall recognizes the Region of Kurdistan together to its existing authorities, as a federal region"; article 118: "The Council of Representatives shall enact , in a period not to exceed six months from the date of its first session, a law that defines the executive procedures to form regions, by a simple majority of the members present"; article 119: "One or more governorates shall have the right to organize themselves into a region (...) ". An example was the former Prime Minister Noori al-Maliki's intention to block the formation of the Salahaddin and Basra provinces in regions.
Article 121
"Regions and governorates shall be allocated an equitable share of the national revenues sufficient to discharge their responsibilities and duties, but having regard to their resources, needs, and the percentage of their population." and in paragraph 4 states that "Offices for the regions and governorates shall be established in embassies and diplomatic missions, in order to follow cultural, social, and developmental affairs".
The planned share of the national revenues for the Kurdistan Region before 2014 has been drastically reduced and subsequently completely cut. Regarding the creation of foreign regions and governatorates offices, there are still a number of countries where there are no Representative Offices of Kurdistan Regional Government.
Article 141
The Federal Government hindered the application of art. 141 "legislation enacted in the region of Kurdistan since 1992 shall remain in force, and decisions issued by the government of the region of Kurdistan, including court decisions and contracts, shall be considered valid unless they are amended or annulled pursuant to the laws of the region of Kurdistan by the competent entity in the region, provided that they do not contradict with the Constitution."
11. The Iraqi Parliament has approved an electoral law by an absolute majority vote without taking into account the minorities present, according to which Iraq is divided into a number of electoral colleges equal to the number of provinces (contrary to the 2005 elections where all the provinces of Iraq represented a single electoral college).
This represented a clear violation of the principle of partnership, as the various minorities were deprived of many seats, leading to a distorted and unrepresented parliamentary composition of the entire Iraqi people. Indeed:
- (a) the allocation does not take account of the percentage of population present in each province;
- (b) it is not possible to verify the exact number of the population due to the lack of an official census (a Federal Government's exclusive task according to article 110);
- (c) the lack of a Federal Chamber, despite the fact that Article 65 imposes the creation of this body, has the effect of influencing the principle of consensus within the legislative power, thereby undermining the principle of a genuine partnership.
12. In order to obtain effective partnership in the management of federal state institutions, several political agreements have been concluded between the Kurdistan region and the successive federal governments, including:
- · The 2005 agreement to form a government under the direction of PM Ibrahim al Jafferi
- · The 2010 Erbil agreement to form a government under the leadership of PM Noori al-Maliki
- · The 2014 agreement to form a government led by the PM Haider al Abadi
The successive federal governments have never followed any of these agreements, with the consequent loss of credibility and confidence.
The federal authorities did not respect the principle of separation of powers, the principle of a democratic system enshrined in Article 47 "The federal powers shall consist of the legislative, executive, and judicial powers, and they shall exercise their competencies and tasks on the basis of the principle of separation of powers."
This principle has never been applied. The executive power is predominant on the judicial and legislative ones.
Article 140
(1) " The executive authority shall undertake the necessary steps to complete the implementation of the requirements of all subparagraphs of Article 58 of the Transitional Administrative Law" which requires: the return of the population forced to leave the contended areas; reintegrating into the workplace of those who have been dismissed; to correct the nationality and ethnic affiliation of the population of the contended areas, arbitrarily changed from previous governments; the restoration by the government of the borders in the controversial areas. In case of impossibility, you will need to contact the UN Secretary General who will indicate an international neutral figure; proceed with the census of the population in all contended areas, including the city of Kirkuk. At paragraph two it decides to proceed with a referendum "which expresses the will of the citizens to determine under which administration to be regulated", no later than 30 December 2007.
It is clear from the text of the article that the legislature delegated the federal government to take the necessary steps to complete the implementation of Article 58 and to take the necessary measures to eliminate the effects of injustice caused by racist practices leading to a population change in the province of Kirkuk and other provinces.
Governments that have succeeded since 2005 have never made a real implementation of Article 140, except for a few irrelevant initiatives.
Reduction in federal budget allocation expected for the region
One of the obligations of a modern country is to ensure, within the general budget, the coverage of operating expenses ، Since the constituent units of a Federal State (provinces and regions) enjoy financial autonomy, part of the general revenue is devolved to these entities.
Following the entry into force of the Constitution of the Federal Republic of Iraq in 2005, it was decided to allocate to the Kurdistan Region a 17% share of current expenditure, running costs and investment project costs.
However, federal governments that have succeeded since 2005 have violated these constitutional obligations by adopting an economic policy to suppress the Kurdistan Region through:
- 1. Reducing the share to be allocated to the Region (11% or 12% at best); since February 2014 this share has been completely cut off;
- 2. Reduction in the share of health care. We went from 60/65% in 2005 to 25/30% in 2016.
- 3. Failure to send the budget to be used for general representation expenses, for the payment of Peshmerga forces and for dam maintenance projects.
The cut in the share of the general budget destined for the Kurdistan region did not come as a retaliation for the launch of independent oil export (May 2014), as the cut began earlier (February 2014).
Therefore, these arbitrary policies are in clear violation of the Iraqi Constitution and further undermine the concrete possibility of the region to remain within the Iraqi state.
- The most important constitutional articles that were violated due to the federal government's policy can be summarized as follows: Article 14: The Iraqi government has distinguished between the citizens of the region and the rest of the citizens of Iraq by cutting their salaries and sources of livelihood, while the article states that "Iraqis are equal before the law without discrimination of sex, race, nationality or origin ".
- 2. Article 25: "The Iraqi economy must be developed on a modern economic basis, guaranteeing diversification of sources and economic resources, encouraging the development of the private sector”.
- 3. Article 26: "The State must guarantee and encourage the development of investments in various sectors".
- 4. Article 29, paragraph 1 and article 30, paragraphs 1 and 2: these articles protect the family as the basis of society, its integrity, its ethical, religious and national values. The state must also provide the essential elements for a free and dignified life.
- 5. Article 31, paragraph 1, 2: “Every citizen has the right to health care. The state must provide public assistance by building different types of hospitals and medical institutions. Under the supervision of the state, individuals and entities have the right to build hospitals, clinics or private health care centers.”
- 6. Article 32: "The State must take care of people with disabilities and ensure their integration into society"
- 7. Article 33: “The right of the individual to live in a safe environment and the duty of the state to protect biodiversity and the preservation of the environment”.
- 8. Article 34: “the right to education and the fight against illiteracy, the state must encourage scientific research and promote excellence, creativity, innovation”.
Violation of the partnership principle with respect to the exploitation of natural resources
Taking the exploitation of oil resources an important place in the Iraqi economy, the Constitution in Article 111 declares oil to be the property of the people. Article 112 establishes the division of this wealth on the basis of the partnership principle.
It was necessary to implement these articles through a supplementary law, for three reasons:
- There was no unified law on oil and gas in Iraq before the fall of the old regime
- The old economic system was based on the direct control of the economy by the totalitarian system. The new economic order, in the period following the entry into force of the Iraqi Constitution, was based on the philosophy of the free and open economy to foreign investments. It was necessary to have a new law then.
- The Constitution envisages applying the principle of partnership in oil and gas management between the federal government and the provincial governments, and the distribution of oil imports equally, as well as the allocation of the quota to the regions. Such aspects are not governed by a law, which is why a new law is needed.
In the successive years, Iraqi governments have hindered the adoption of a law on oil and gas, following the introduction of a bill to the House of Representatives on 4/7/2007. The articles and paragraphs of this project underline the principle of the adoption of powers by the provincial authorities in the area of oil and gas management. After 12 years of the new Iraqi constitution, federal Iraq has a legal void in the most important sector of the national economy, due to the reluctance of federal governments to recognize the principle of partnership with the Kurdistan Regional Government (the only region in Iraq). Therefore, a whole series of legal problems stem from the conclusion of oil contracts with foreign countries.
Violation of rights and freedoms
Iraqi governments have violated most of the provisions concerning the rights and freedoms of the person, including:
1. Article 2, paragraph 2, which cites "... This constitution guarantees the freedom of religious belief and worship to all individuals, such as Christians and Yazidis, and Mandei." The subsequent Iraqi governments were not able to defend the freedom of religion of minorities such as Yazidi, Christians, Mandei and Kakai, whose followers are unable to exercise their freedom of worship safely.
2. Article 14 states that: “Iraqis are equal before the law without distinction of race, nationality, origin, etc. ". Federal governments have violated this constitutional article by practicing a racial discrimination policy against the various components of Iraqi society. In particular, there has been a predominance of the Shiite community on the rest of the communities in the various areas of public life and also on the distribution of postgraduate scholarships and diplomatic missions. There is no equality between the various communities; rather, it has encouraged forced exodus towards the campaigns of all religious minorities except for the followers of the Shiite component.
3. Article 15 states that: "Everyone has the right to life, security and liberty, he cannot be deprived of these rights or limited unless he is in compliance with the law and on the basis of a decision issued by the competent judicial authority” as well as Article 37 provides that "No one can be detained or questioned, except for a court decision." The Iraqi government acted in full opposition to this article, supporting stalemate campaigns against the Sunni component; hundreds of kidnappings and murders have been reported against the children of the Sunni community.
4. Article 28 (2) provided for a series of personal, social and economic rights of the Iraqi people (such as tax reduction for limited-liability owners, maternity protection, childhood and old age, young people's care, prevention of sexual exploitation of children, prevention of domestic violence, social and health insurance. The Iraqi government has failed to secure these rights. Thousands of children are denied the right to education and the right to live a dignified life.
5. Articles 31 and 32 regulate a number of Iraqi health rights (such as the right to health care and the creation of hospitals and health institutions, and care for people with disabilities and persons with special needs). Federal government has cut the share of medicines and medical supplies destined for the region despite hosting more than 1.8 million displaced persons and refugees from Iraqi governorates.
6. Article 33 states that "the state should provide a healthy environment for its citizens". The government was unable to fulfill this important commitment directly linked to the lives of citizens.
7. Article 41 states that "Iraqis are free to respect their personal status based on their religions, sects, beliefs, or choices, etc." Iraqi governments have violated this article by not respecting the principle of freedom of religion, the basis of peaceful coexistence among the faithful of the different religions in the country.
8. Article 44 states that "the Iraqi people enjoy freedom of movement and residence in and out of Iraq”. The Iraqi government has acted in opposition to this article.
9. Article 37 (3) concerns the prevention of trafficking in women. However, the phenomenon of the marriage of minors is widespread.
10. Article 132 (1) and (2) provide that "the State shall ensure the care of families of martyrs and political prisoners ... and compensation for the families of martyrs and wounded as a result of terrorist acts". Iraqi governments have never been able to assure the rights of political prisoners, especially the martyrs of the Kurdistan region, which was a duty of the Government to offset the families of the martyrs of Halabja and the Anfal Campaign. The government has never even compensated political prisoners and compensated families of martyrs and wounded as a result of terrorist acts.
9. Article 113 provides that the management of archaeological heritage is a national competence. This is why the Central Government is in charge with the governments of the Region and governorates. This has never been done.
10. Customs management is bankrupt. According to Article 144, paragraph 1, customs administration ought to have been the responsibility of the central government in co-operation with the governments of the region and the governorates, and a law had to be issued for this. It has never been produced.
11. Article 123 provides for the adoption of a law for the regulation of competences between the central government and the governments of the region and governorates. It has never been produced.
12. Article 124 provides for the adoption of a Law on Baghdad Capital Management. It was never released.