By Bashdar Pusho Ismaeel
The Transitive Administrative Law of 2004 was followed by a new constitution in October 2005, on the back of months of grueling negotiations, intense jockeying and fervent pressure from the U.S., the result of the arduous tasks of satisfying Iraq’s vast socio-ethnic mosaic.
Significance of a constitution
Just why is a constitution perceived with so much significance? A constitution is a set of decrees, principles and ideals that govern a country. It is the blueprint of the governance of the country and the essential building block for all political, democratic and legislative particles that form a part of that country. As the political heartbeat or DNA of the governance of any country, the constitution is the hallmark and distinction of a country. In other words, if any aspect of a constitution is denied or overridden then the basis for the existence of the political and official governing entity in that country is also denied.
For this reason, across the Middle East, from Egypt to Libya, Syria and Turkey, real reform is synonymous with popular demands for fundamental changes to the respective constitutions. For example, the real acceptance of the Kurds in Turkey is not through electoral manifestos or mere political rhetoric, it can only be achieved by changing the legal blueprint of that country.
Clear roadmaps in place
For all its critics, the Iraqi Constitution is comprehensive and provides a roadmap for many of the major aspects that continue to fuel dispute and animosity today. There is a guideline for the extent of federal powers, regional authority, and powers afforded to executive entities, the sharing and development of Iraq’s immense hydrocarbons and, above all else, dealing with the issues of disputed territories.
Article 140 clearly outlines time lines, formulas and responsibility for resolving the status of Kirkuk and other associated disputed territories. This made the basis and the method for resolving the Kirkuk dilemma a clear building block of the new Iraq. It is contained in the constitution of the country, the essential framework of its existence, so there can be no clearer argument for the legality and prominence placed on this issue.
This makes the reasons behind the non-implementation of a legal, valid and key component of the make up of the country all the more pertinent.
Simply Arab factions, particularly the Sunnis and neighboring powers, have put more obstacles than solutions to prevent these articles from being implemented and thwart what they see as a strategic strengthening of Kurdish hands. It is now almost six years since the constitution was voted in, and clearly the appetite for resolving Kirkuk is as lacking as ever.
You may dislike or disagree with articles of the constitution, but this doesn’t make the articles any less legal, clear or enshrined in the make up of the country.
Baghdad foot-dragging over Article 140 was designed to ensure the deadline for its implementation by Dec. 31, 2007 would be missed. Yet the same entities that prevented its implementation, now, ironically, complain that the article is void as the deadline has passed.
While the Kurds have patiently persisted with the status quo, the Kurdistan Regional Government would be unwise to let constitutional articles fester indefinitely and see articles that potentially benefit them to be at a constant source of obstruction by the Arab and Turkmen sections of the population.
Limiting of Kurdish gains has been the same theme for the lack of a national hydrocarbon law in Iraq and the successive postponement of the census.
The fear of approving Kurdish oil contracts and resolving the status of disputed territories is that Baghdad would lose the little sway it has remaining over Kurdistan and Kurdistan could develop economic, foreign relations and politics unilaterally.
However, the breaking of the constitution is akin to cutting an artery to the heart. Iraq currently has a voluntary union, underpinned by constitutional principles. Without these, the legal basis for tying all parts of Iraq is effectively eroded.
Once the deadline for the implementation of Article 140 inevitably passed at the end of 2007, and without much progress, the UN was tasked with the responsibility of diffusing tensions, or in the words of former U.N. Special Envoy to Iraq, Steffan di Mistura, “stopping the ticking time bomb.”
More than three years later, the U.S. and U.N. continue to highlight the dangers that Kirkuk entail to Iraqis future but their commitment has been lacking in breaking the deadlock. The U.N., in particular, was tasked to look at solutions and alternatives to resolving disputed territories. The continued insistence of an international body to bypass a country’s constitution is remarkable. The mechanism for resolving the status of Kirkuk has long been decided. Ultimately, like any true democracy, it’s the people that should decide their fate, not Ankara, Baghdad, the U.N. or the like.
With the Kurdistan government growing increasingly tired and frustrated, top Kurdish leaders have recently warned of the dangers of any bypassing of the constitution.
Kurdistan Region President Massoud Barzani recently stated, “If this article is dead, it means the constitution is dead. And if the constitution is dead, it means Iraq is finished.” Such similar sentiments were echoed by Nechirvan Barzani and Kurdistan Parliament Speaker Kamal Kirkuki in recent weeks.
Successive Kurdish warnings must be matched with key time lines and actions. Waiting for Baghdad and regional powers to bolsters their aims and proactively resolve issues that favor them will only end in disappointment. If the constitution is ignored by Baghdad, then the very foundations of the state are in turn ignored.
The Kurds have been persistently pressured by Washington and the U.N., among others, to compromise. While 250,000 Kurds were kicked and beaten without remorse from their historical homes, “compromise” was not a word uttered by Baathist forces. Now those same Kurds, wishing to return home, are been told their legally enshrined demands constitute overreaching and they must compromise.
For the Kurds, this is a historical juncture. This is a chance to correct the wrongs of the past in a democratic and legal manner. If Kurds were unwilling to compromise in 1975 over Kirkuk, then any deal in the “new” Iraq of 2011 not involving its rightful return would represent a huge setback.
Dispute over oil contracts
The issue over Kirkuk has only been matched by the highly contentious disputes over oil sharing and the rights of regional administrations to develop their own oil fields. The Kurdistan Region has signed more than 35 Production Sharing Agreements and Production Sharing Contracts with foreign oil exploration companies in recent years in what they deem as a natural right under the constitution. This has been hotly contested by Baghdad and particularly former Oil Minister Hussein Shahristani who has frequently labeled such deals as illegal.
Only recently has the deadlock been broken, with Baghdad endorsing the oil contracts and authorizing limited exports through Iraqi national pipelines. However, the bottom line remains that Baghdad does not want to see the Kurds drive on unhindered with their own national program. The recent pact by Shahristani with the EU to export gas through the southern corridor to Kurdish surprise is testament to this. Kurdistan was long earmarked as a pivot to the proposed Nabucco pipeline in the north, which would have guaranteed it strategic standing and lucrative returns.
Simmering political tension in Baghdad
The 19 post-electoral demands of the Kurds were explicitly accepted as a condition for their support of the new government. Furthermore, a number of other critical points were agreed between Kurds, Shiites and Sunnis that allowed several months of bickering and jockeying to end.
However, the problem in Iraq is that often the agreements are not worth the paper they are printed on. The lack of implementation of the Erbil agreement of last autumn, has led to entrenched camps of Iyad Allawi and Nuri al-Maliki, with relations all but beyond repair. Key points in the agreement including the formation of Higher Strategic Policies Council that was to be headed by Allawi and the naming of key ministries has continued to falter.
Recent heated exchanges between Allawi and Maliki underpin the common mistrust and animosity that continues to blight the new Iraq. Allawi accused Maliki of being “a liar, hypocrite and misleading,” who came to power with “Iranian support,” in retaliation for the “State of Law of Maliki,” aiming to reprimand Allawi for abstaining from parliamentary sessions.
The labored progress in Baghdad and the ongoing sectarian battles that impinge progress is all the more reason for Kurdistan not to wait, to be held back and destabilized by the south, but to continue in the interests of Kurds and Kurdistan unabated.