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:
"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.
"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.
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.
"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.
(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.
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.
"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.
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.