ITS ALL ABOUT THE CONSTITUTION

17 NOVEMBER 2017

No Iraqi Constitution, No Iraq

According to Prophets Google and Wikipedia, a constitution is a set of principles on

which a state is governed. Governance is to be by the whole set of principles, not part;
its all or nothing.

The constitution is not a restaurant menu. Unlike a restaurant menu, national

constitutions are not documents of choice. If the constitution were a restaurant menu,
we would be obligated to eat everything on it, all the time.

It is the supreme law of the land. As citizens of a country with a constitution, we are not
allowed - we do not have the option - to abide by this article and violate that article.

Erbil and Baghdad each uses the Iraqi Constitution to justify its position and the action it
takes. The manner in which both sides stand on the Constitution, however, is like
standing together on thin ice.

Will the 2005 Iraqi Constitution finally receive the attention it deserves? Can it be made
to work in the interest of all citizens of Iraq? If the Constitution works as it could and
should, all Iraqis would benefit. But, as only words on paper, it won't work by itself.

In his NYT op-ed of 18 October 2017, Iraqi Prime Minister Abadi delivered a manifesto,
a statement of policy and aims, which misinterprets the Constitution and misleads
readers. https://www.nytimes.com/2017/10/18/opinion/iraq-will-remain-united.html

The KRG has published a report asserting the federal government has violated 55 of
the Constitution's total 144 articles, and failed to fulfill or fully implement another 12
articles. http://cabinet.gov.krd/a/d.aspx?s=040000&l=12&a=55856

If sincere efforts were made to promote and implement the Iraqi Constitution, and apply
the country's immense natural and human resources in a transparent and accountable
manner to serve the best interests of all its citizens, regardless of their ethnic or
religious backgrounds, the potential would be exceptionally high for all Iraqis to become
among the happiest, and most fulfilled and satisfied people in the world. And Iraqis
would have by now put a woman on the moon.

If the Iraqi Constitution were upheld, the Referendum would not have been held. The
Referendum was held because rights were not being protected and the Constitution
was not being respected.

The Iraqi Constitution did not prohibit the Referendum. In fact, the Constitution
guarantees freedom of expression using all means. The Referendum was, thus,
legitimate and legal. Notably, conducting the Referendum changed nothing.
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What is indeed illegitimate and illegal is the federal government's rush to violence that
followed the Referendum. This aggression clearly contravenes the Constitution and
disunites the country by exacerbating political differences among communities.

The aggression following the Referendum has caused hundreds of casualties, tens of
thousands of families are displaced, homes have been looted and burned, atrocities
committed, with continuing threats, intimidations, and humiliations. This violence, a
throwback to the Saddam era, was totally unnecessary and avoidable.

According to the Iraqi Constitution, the Kurdistan Region is a recognized federal entity,
Iraqi armed forces are not allowed to be used against Iraqis for political reasons, oil and
gas fields are to be jointly managed and revenues fairly distributed, and only the
Federal Supreme Court, which has yet to be established, can settle disputes between
the federal government and the Kurdistan Region. As required by the Constitution, a
second chamber in the Iraqi Parliament, the Federation Council, composed of
representatives of the regions and governorates, was also to be established.

The Iraqi Constitution is quite readable, with only 144 articles, written in a language
for moderately intelligent high school students to understand.
Click on Text of 2005 Iraq Constitution
Or insert the following link into your browser and click
https://www.constituteproject.org/constitution/Iraq_2005.pdf?lang=en

The Iraqi Constitution builds on and supersedes the Transitional Administrative Law
(TAL), an interim constitution drafted by a team that included prominent Iraqis.
Click on Transitional Administrative Law (TAL)
Or insert the following link into your browser and click
http://www.cesnur.org/2004/iraq_tal.htm

The TAL was Iraq's provisional (interim) constitution signed in March 2004 by the Iraq
Governing Council. It went into effect in June 2004 following the official transfer of
power from the US-led Coalition Provisional Authority (CPA) to the sovereign Iraqi
government. The permanent 2005 Iraqi Constitution superseded the TAL when the
permanent (non-interim) Iraqi government assumed office in May 2006.

The TAL was principally drafted by a ten-man (no women!) committee of prominent
Iraqis including Feisal al-Istrabadi and Adnan Pachachi. Both served as Iraqi
Ambassador to the United Nations. Adnan Pachachi also served as Iraq's foreign
minister. Al-Istrabadi earned his SJD (Doctor of Juridical Science, a research doctorate
in law degree) from the United States.

As Iraqis drafted the TAL, so, too, was the 2005 Iraqi Constitution drafted by Iraqis for
Iraqis. To a major extent, the Constitution incorporated the TAL.
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The Preamble to the Iraqi Constitution is worth reading a few times. Inter alia (among
other things), the Preamble refers to sectarian oppression, Halabja, Barzan, and Anfal.
It talks of a new Iraq free from sectarianism and exclusion, of building a nation of law,
with the just distribution of resources, by casting aside the politics of aggression, to
spread the culture of diversity, and to defuse terrorism.

Part of the Preamble to the permanent Iraqi Constitution states,

"We, the people of Iraq . . . have taken upon ourselves to decide freely and by
choice to decide our future . . . and to enact this permanent Constitution . . ."

"The adherence to this Constitution preserves for Iraq its free union of people, of
land, and of sovereignty."

This says the Kurdistan Region's union with Iraq is voluntary, and non-adherence to the
Constitution dissolves the union of people who freely joined Iraq. The union was agreed
to by Iraqi Kurdistan on the condition the federal government would respect the new
constitution.

US Ambassador Robert Ford, who was an advisor along with UN officials at the time the
Iraqi Constitution was drafted, has confirmed this was the approach. He informs that
Masoud Barzani " . . . finally answered us clearly in October 2005: if the Baghdad
central government respects the new constitution, the Kurdish regional government will
remain in a united Iraq."

Recent rulings pertaining to the Kurdistan Region by a Baghdad court are questionable
because the standing of the court itself is questionable. The court is a holdover from the
transitional period and, thus, its mandate expired in May 2006 when the Iraqi
Constitution came into force and, thus, superseded the TAL. This court was also
misused by the Maliki administration to eliminate the independence of certain
government commissions. Further, this court is politicized and the age of the current
chief justice exceeds the permissible limit.
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Articles to know and understand better

Of the total 144 articles in the Iraqi Constitution, here are twenty-six (26) of particular
relevance to Iraqi Kurdistan at this time. These articles are important to read and study,
know and understand, and commit to memory:

Article 117(1) states, "This Constitution, upon coming into force, shall recognize
the region of Kurdistan, along with its existing authorities, as a federal region."

The Iraqi Constitution was approved in a countrywide referendum in October 2005 and,
following elections in December 2005, came into force in May 2006 upon the seating of
the new government. The Kurdistan Region is composed of the whole or parts of six
(not three) governorates, as they existed in 1991 at the time the Region was forcefully
established by the regime of Saddam Hussein.

Article 1 states, The Republic of Iraq is a single federal, independent and fully
sovereign state in which the system of government is republican, representative,
parliamentary, and democratic, and this Constitution is a guarantor of the unity of Iraq.

In todays Iraq, the primary key words are federal, representative, democratic, and
guarantor. The Constitution is only words on paper until it is put into practice. For the
Iraqi Constitution to be practiced, we rely on observable behavior reflected in law and
action that effectively promotes federalism, which pulls the country together through fair
and active representative participation in democratic state institutions. These
institutions include the independent judicial Federal Supreme Court and the
parliamentary legislative Federation Council.

The Constitution itself is the guarantor of unity, not the federal government. Only if the
Constitution is respected, seriously upheld, and made fully operational can it guarantee
the unity of Iraq. Constitutional practice requires acute attention to the modalities of
implementation.

Article 4 states,

(1) "The Arabic language and the Kurdish language are the two official
languages of Iraq."

This article further states the official languages shall be applied to:

(2A) "Publication of the Official Gazette, in the two languages"

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(2B) "Speech, conversation, and expression in official domains, such as the

Council of Representatives, the Council of Ministers, courts, and official
conferences, in either of the two languages"
(2C) "Recognition and publication of official documents and correspondence in
the two languages"
(2D) "Opening schools that teach the two languages, in accordance with
educational guidelines"
(2E) "Use of both languages in any matter enjoined by the principle of equality
such as bank notes, passports, and stamps"

Article 5 states, "The law is sovereign. The people are the source of authority and
legitimacy . . ."

Article 9 states,

(1A) "The Iraqi armed forces and security services . . . shall not be used as an
instrument to oppress the Iraqi people, shall not interfere in political affairs . . ."

The Iraqi armed forces and security services were used in Baghdads recent rush to
violence to oppress Iraqi people in a matter pertaining to political affairs.

A related Kurdistan Region law says Iraqi armed forces cannot enter the Kurdistan
Region without the permission of the Kurdistan Parliament. This law was passed in
accordance with the provisions of the 2005 Iraqi Constitution.

(1B) "The formation of military militias outside the framework of the armed forces
is prohibited."

The Hashd al-Shaabi (PMF/PMU) is an umbrella organization composed of many

sectarian Shia militias formed outside the framework of the armed forces. They are
irregular forces operating under a questionable command and control structure separate
from that for the Iraqi military. Prominent units are supported by, and operate with the
blessings of, both the Iraqi and Iranian governments, with American weaponry, with
embedded Iranian forces, and are led by Iranian advisors.

Article 13(1) states, "This Constitution is the preeminent and supreme law in Iraq and
shall be binding in all parts of Iraq without exception."
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Article 14 states, "Iraqis are equal before the law without discrimination based on
gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or
economic or social status."

Article 15 states, "Every individual has the right to enjoy life, security, and liberty . . ."

Article 16 states, "Equal opportunities shall be guaranteed to all Iraqis . . ."

Article 19(2) states, "There is no crime or punishment except by law."

Because there is no law prohibiting referendums, this says there is no crime or

punishment for participating in the Referendum.

Article 38 states, The State shall guarantee . . .

(1) Freedom of expression using all means.

(2) Freedom of press, printing, advertising, media, and publication.
(3) Freedom of assembly and peaceful demonstration . . .

The Referendum honored freedom of expression. Since the Referendum, the federal
government has curtailed freedom of the press.

Article 42 states, Each individual shall have the freedom of thought, conscience, and
belief.

Those who participated in the Referendum honored freedom of thought, conscience,

and belief.

Article 65 states, "A legislative council shall be established named the "Federation
Council" to include representatives from the regions . . ."

This council, which is a second legislative chamber in the Iraqi Parliament, is required
for federation and is to be made up of representatives of the regions and governorates.
This chamber has yet to be established.
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Article 67 states, "The President of the Republic is the Head of the State and a
symbol of the unity of the country and represents the sovereignty of the country. He
shall guarantee commitment to the Constitution and the preservation of Iraq's
independence, sovereignty, unity, and the safety of its territories, in accordance with the
provisions of the Constitution."

It would appear the President of the Republic has a critically important job to do.

Article 92 states,

(1) "The Federal Supreme Court is an independent judicial body, financially and
administratively."
(2) "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 numbers of the Council of Representatives."

No such law has been enacted. To date, the Federal Supreme Court has not been
established. The court that currently claims to decide disputes is left over from the
transitional government that functioned under the Transitional Administrative Law (TAL),
which was superseded by the 2005 Iraq Constitution. Thus, the standing of that court is
questionable and, apparently, it has no mandate to act.

Article 93 states, "The Federal Supreme Court shall have jurisdiction over the
following:

(1) "Overseeing the constitutionality of laws and regulations in effect."

(2) "Interpreting the provisions of the Constitution."
(3) "Settling matters that arise from the application of federal laws . . ."
(4) "Settling disputes that arise between the federal government and the
government of the regions . . ."
(8A) "Settling competency disputes between the federal judiciary and the judicial
institutions of the regions . . ."

Article 105 states, A public commission shall be established to guarantee the rights of
the regions . . . to ensure their fair participation in managing the various state federal
institutions, missions, fellowships, delegations, and regional and international
conferences.

This commission has yet to be established.

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Article 106 states, A public commission shall be established by a law to audit and
appropriate federal revenues.

(1) To verify the fair distribution of grants, aid, and international loans pursuant
to the entitlement of the regions . . .
(2) To verify the ideal use and division of the federal financial resources.
(3) To guarantee transparency and justice in appropriating funds to the
governments of the regions . . .

This commission has yet to be established. Iraq is one of the most corrupt countries in
the world. Of 176 countries on Transparency Internationals Corruption Perceptions
Index (CPI) 2016, Iraq ranks 166, the 11th most corrupt country in the world.

Article 109 states, "The federal authorities shall preserve the unity, integrity,
independence, and sovereignty of Iraq and its federal democratic system."

This is the crux. By its sectarian disposition, the federal government has
alienated through violence major portions of the Iraqi citizenry yesterday
Sunnis, today Kurdistanis, which does not preserve the unity and integrity of Iraq.

Article 110 states, "The federal government shall have exclusive authorities in the
following matters:

(2) "Formulating and executing national security policy, including establishing

and managing armed forces to secure the protection and guarantee the security
of Iraq's borders and to defend Iraq."

As there is no security threat from any neighboring country, the current situation does
not require federal forces to secure border areas bordering the Kurdistan Region unless
the security situation warrants and no other forces are available. It is a matter of law
that Iraqi security forces cannot enter the Kurdistan Region without the approval of the
Kurdistan Parliament.

Article 112(1) states, "The federal government, with the producing governorates and
regional governorates, shall undertake the management of oil and gas extracted from
present fields, provided that it distributes its revenues in a fair manner . . ."

The key operative words are "with" and "provided". Control of Iraq's oil and gas industry
is NOT an exclusive authority of the federal government."
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Article 114 states, "The following competencies shall be shared between the federal
authorities and regional authorities:

(1) To manage customs, in coordination with the governments of the regions . .

."

Article 115 states, "All powers not stipulated in the exclusive powers of the federal
government belong to the authorities of the regions and governorates . . ."

Article 121 states,

(1) "The regional powers shall have the right to exercise executive, legislative,
and judicial powers . . . except for those authorities stipulated in the exclusive
authorities of the federal government."
(2) "In case of contradiction between regional and national legislation in respect
to a matter outside the exclusive authorities of the federal government, the
regional power shall have the right to amend the application of the national
legislation within that region."
(3) "Regions and governorates shall be allocated an equitable share of national
revenue sufficient to discharge their responsibilities and duties, but have regard
to their resources, needs, and the percentage of their population."
(5) "The regional government shall be responsible for all the administrative
requirements of the region, particularly the establishment and organization of the
internal security forces for the region such as police, security forces, and guards
of the region."

Article 140 states,

(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."
(2) "The responsibility placed upon the executive branch of the Iraqi Transitional
Government stipulated in Article 58 of the Transitional Administrative Law shall
extend and continue to the executive authority elected in accordance with this
Constitution, provided that it accomplishes completely (normalization and census
and concludes with a referendum in Kirkuk and other disputed territories to
determine the will of their citizens), by a date not to exceed the 31st of December
2007."
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Article 143 states, "The Transitional Administrative Law and its Annex shall be
annulled upon the seating of the new government, except for the stipulations of Article
53(A) and Article 58 of the Transitional Administrative Law."

TAL Article 53(A) states, "The Kurdistan Regional Government is recognized as

the official government of the territories that were administered by that
government on 19 March 2003 in the governorates of Duhok, Erbil, Suleimani,
Kirkuk, Dyala, and Nineveh. The term "Kurdistan Regional Government" shall
refer to the Kurdistan National Assembly, the Kurdistan Council of Ministers, and
the regional judicial authority in the Kurdistan region."
TAL Article 58 states, The Iraqi Transitional Government ". . . shall act
expeditiously to take measures to remedy the injustice caused by the previous
regime's practices in altering the demographic character of certain regions,
including Kirkuk, by deporting and expelling individuals from their places of
residence, forcing migration in and out of the region, settling individuals alien to
the region, depriving inhabitants of work, and correcting nationality."

Additional paragraphs in TAL Article 58 outline steps to be followed regarding resettling

compensation, re-employment opportunities, nationality correction, restoring
administrative boundaries, and a fair and transparent census.