10 October 2002
KurdishMedia.com - By Dr Nouri Talabany
Chapter Two
The Executive Authority
Section One
The Region’s Chief Executive
Article (69)
The Iraqi Kurdistan Region’s Parliament shall choose a Chief Executive for the Region who shall serve for a period of four years after taking the oath of office. His term of office cannot be renewed more than once.
Article (70)
In addition to the provisions of Article 50 of this Constitution, the candidate for the post of the Region’s Chief Executive must meet the following requirements:
1. He/she must be a citizen of Iraqi Kurdistan and permanently resident there.
2. He/she must be accorded all civil and political rights and must have reached forty years of age.
Article (71)
1. The date of the election of the Region’s Chief Executive shall be set by Parliament and announced through the media.
2. Every citizen of the Region who meets the requirements specified in Article 70 above has the right to stand as a candidate by submitting a written application to the Speaker of Parliament within fifteen days of the announcement of the date of the election. It must be signed and endorsed by ten members of Parliament and supported by the appropriate legal documents.
3. A Commission appointed by Parliament at the time of its announcement of the date of the election for the Chief Executive shall make a decision on the applications within five days of their submission and shall notify the applicants of its decisions within two days.
4. An applicant has the right to challenge the Commission’s decision before the Iraqi Kurdistan Region’s High Court within two days of being notified of it.
5. The High Court will make a definitive decision about the challenge within two days. All candidates will be considered to have been notified of the above-mentioned decisions as from the date of their announcement on the court’s bulletin board.
Article (72)
1. Gaining a two-thirds majority in a secret ballot shall elect the Region’s Chief Executive by the Region’s Parliament.
2. In the event of a failure to elect the Chief Executive on the first ballot, and where there are two or more candidates standing for election, the second and subsequent ballots will be limited to the two candidates who received the most votes on the first ballot.
3. In the event of a failure to gain the required two-thirds majority on the second, third, fourth, and fifth ballots, which must be held within fifteen days, Parliament shall elect the Chief Executive on the sixth ballot, within three days, by a simple majority.
Article (73)
The Region’s Chief Executive shall take the oath of office before Parliament within two days of his election in the following manner: “I do solemnly swear by God that I will protect the unity of the people and territory of Iraqi Kurdistan, and that I will protect the vital interests of the people and uphold the Constitution and the law.”
Article (74)
The salary of the Region’s Chief Executive shall be set by Parliament.
Article (75)
The Region’s Chief Executive shall assume the following responsibilities:
1. Commander-in-chief of the Region’s armed forces.
2. Summoning the Region’s Parliament for regular, as well as extraordinary, sessions.
3. Appointing the Region’s Prime Minister from the majority party in Parliament in accordance with the Constitution.
4. Issuing of Decrees regarding the appointment of the Region’s Prime Minister and his Cabinet.
5. Endorsing any Regional Laws passed by Parliament within ten days of receiving them.
6. Signing death sentences or commuting such sentences to life imprisonment with hard labour.
7. Issuing special clemencies after consultation with the Region’s Supreme Legal Council.
8. Issuing Decrees, with the approval of the Region’s Cabinet, to deal with emergency situations requiring immediate action when Parliament is not in session. These Decrees have the force of law and must be presented to Parliament for ratification as soon as it reconvenes.
9. Calling general elections to elect the Region’s Parliament within fifteen days of the end of its term, or of a decision to dissolve itself.
10. Issuing Decrees regarding the appointment, dismissal, or acceptance of the resignation of high-ranking officials, judges, members of the public prosecutor’s office, or those of equal rank.
11. Selecting, appointing, dismissing, and accepting the resignation of his advisors.
Article (76)
The Prime Minister’s approval is necessary for Decrees issued by the Chief Executive.
Article (77)
The provisions of Article 56 of this Constitution are applicable to the Region’s Chief Executive while he remains in office.
Article (78)
Parliament shall elect a new Chief Executive of the Region no earlier than thirty days before the expiry of the current Chief Executive’s term of office.
Article (79)
1. If, for any reason, the Chief Executive’s position falls vacant, Parliament shall elect a new Chief Executive within thirty days. The Prime Minister shall assume the Chief Executive’s responsibilities during this period.
2. In the case of the Chief Executive’s absence or disability, the Prime Minister shall act for him for a period not exceeding three months.
3. If the Chief Executive is unable to resume his work at the end of the period specified in section two above, Parliament has the right, either to extend the time for a further three months, or to elect a new Chief Executive in accordance with the provisions of the Constitution.
Section Two
The Cabinet (The Government)
Article (80)
1. After consultation, the Region’s Chief Executive will appoint a member of the majority party in Parliament to form the Cabinet.
2. The Prime Minister designate shall present to Parliament the names of his Cabinet, together with his Government’s programme and policies, within a period of not more than fifteen days from the date of his appointment, to win a vote of confidence by Parliament.
Article (81)
Within seven days of winning a vote of confidence in Parliament, a Regional Decree shall appoint the Prime Minister and the Cabinet to their positions.
Article (82)
Any member of the Cabinet must be a citizen of the Region, at least thirty years of age, and must be accorded all his civil and political rights. He must not have been convicted of a non-political crime or misdemeanour, in addition to meeting all the requirements mentioned in Article 50 of this Constitution.
Article (83)
The Cabinet is the Region’s supreme executive and administrative authority and is responsible for enforcing the laws, protecting the rights and liberties of the citizens and maintaining peace and stability in the Region. It is responsible specifically for:
1. Deciding the overall policy of the Region.
2. Preparing draft legislation and introducing them to Parliament for passage into Regional Law.
3. Issuing rules and regulations in accordance with the Law.
4. Making executive and administrative decisions in accordance with the law and ensuring their enforcement.
5. Overseeing the appropriateness of the directives issued by individual ministers to facilitate the enforcement of laws and regulations.
6. Preparing the Region’s General Budget and monitoring its implementation after its approval by Parliament.
7. Preparing the economic development plan for the Region and monitoring its proper implementation after its approval by Parliament.
8. Nominating advisors and high-ranking officials, directors general, judges, and members of the public prosecutor’s office, and presenting their names to the Region’s Chief Executive to ratify their appointments by Regional Decrees.
Article (84)
Before taking office, members of the Cabinet shall take the following oath before the Region’s Chief Executive: “I do solemnly swear by God that I will protect the unity of the people and territory of Iraqi Kurdistan, and that I will protect the vital interests of the people and uphold the Constitution and the law.”
Article (85)
The provisions of Article 56 of this Constitution shall apply to the Prime Minister and the members of his Cabinet while in office.
Article (86)
1. The Prime Minister shall direct and co-ordinate the work of the ministries and monitor their performance.
2. The ministers share the responsibility to Parliament for the Cabinet’s general policies and each minister is personally responsible for his actions.
Article (87)
The minister has overall responsibility for his Ministry. He sets the policy of his Ministry within the Region’s general policy and implements it.
Article (88)
It is possible for one quarter of the members of Parliament to request a vote of confidence in the Cabinet or in one of the ministers. No vote can be taken on the issue of confidence before one week has elapsed since the introduction of it to Parliament. The voting will be public and held within two days of the completion of discussion of the issue. A vote of no confidence shall not be conclusive unless it is by a simple majority of all the members of Parliament. A vote of no confidence in the Cabinet will result in the resignation of the entire Cabinet, and a vote of no confidence in a minister will result in the resignation of that minister.
Article (89)
In the event of the death of the Prime Minister, or in other circumstances, which would render his post vacant, his deputy shall assume his responsibilities until such time as a new Prime Minister is appointed in accordance with the provisions of the Constitution.
Article (90)
Ministers are accountable for any felonies or misdemeanours they commit whilst discharging, or as a result of, their responsibilities.
Article (91)
Parliament has the right to bring charges against a minister before a Special Tribunal for crimes he commits whilst discharging, or as a result of, his responsibilities. These charges must be based on a proposal by at least one-quarter of the members of Parliament. The verdict to convict shall be by a simple majority of the members of Parliament.
Article (92)
A minister who is accused shall be suspended from his post until a decision is made. He shall not be dismissed without a formal charge or the instigation of legal proceedings. A minister’s trial, the procedures of the trial, its safeguards and the punishments, shall be in accordance with the law. The provisions of this law shall also apply to the deputy ministers and others of equal rank.
Chapter Three
The Judiciary
Article (93)
No one is above the law and the judiciary must be allowed to administer justice without interference. Judges are free to make their decisions in a manner that would enable them to discharge their duties in the best way possible.
Article (94)
The rule of law applies to everyone in its general and particular terms.
Article (95)
The right to a fair trial is guaranteed to all. The law defines the procedures necessary for exercising this right
Article (96)
The law shall determine the manner of establishing courts, their types, their hierarchy, and the areas of their responsibility.
Article (97)
Court sessions shall be public unless public welfare dictates, in the opinion of the court or at the request of the prosecution, that they be held in secret to preserve of public order or to maintain decorum.
Article (98)
The courts’ decisions and verdicts shall be pronounced in the name of the people.
Article (99)
Extraordinary Tribunals shall not be established unless there is the threat of an external attack on the Region or a serious threat to its internal security. They will be established by a Regional Decree from the Region’s Chief Executive at the suggestion of the Cabinet. The work of these Tribunals shall cease with the end of the unusual situation that necessitated them. Law will regulate all this.
Article (100)
The Public Prosecutor’s office shall represent the public in defending justice and in protecting individual and family freedoms and property in the Iraqi Kurdistan Region.
Part Four
The Supreme Legal Council
Article (101)
The Supreme Legal Council of the Region is the body that the Region’s Chief Executive and the Prime Minister will consult on matters relating to the Constitution and its provisions. Specifically, it looks into:
1. Proposals concerning the amendment of one or more of the Articles of the Constitution.
2. The drafting of bills, rules and regulations.
3. Legal matters referred to it by the Region’s Chief Executive, Prime Minister, and ministers.
Article (102)
The Council shall be composed of five members of senior rank appointed by a Regional Decree based on a proposal by the Region’s Cabinet. They will be chosen from among the outstanding jurists of the Region known for their competence, honesty, integrity, and dedication.
Article (103)
Holding membership of the Council and membership of Parliament or the Cabinet concurrently is prohibited.
Part Five
General Provisions
Article (104)
This Constitution shall be effective after its enactment by Parliament by a two-thirds majority vote.
Article (105)
The Region’s Cabinet or one-third of the members of Parliament have the right to request the amendment of one or more articles of this Constitution provided that the number of articles to be amended, and the reasons, are mentioned in the request.
Article (106)
The proposal to amend the Constitution shall be presented to the Region’s Supreme Legal Council for its views, before being presented to Parliament.
Article (107)
Any amendment to the Constitution requires the approval of a two-thirds majority of members of Parliament.
Article (108)
The provisions of the legislation in effect before the adoption of this Constitution remain in effect in the Region until abolished or amended by a decision of Parliament, with the exception of any legislation shown to be incompatible with the provisions of this Constitution.
Article (109)
The laws, rules and regulations shall be published in the Region’s official register/gazette and will be effective as from the date of their publication, or as from the date specified in those same laws, rules and regulations.
Concerning the Proposed Constitution
For the Iraqi Kurdistan Region (*)
Federalism is regarded as the best system for democratic states, which are made up of a multiplicity of nations. This principle of federalism was unanimously endorsed by the elected parliament of the Iraqi Kurdistan Region (IKR) on the 4th October 1992. The decision was supposed to have been followed by the complementary and necessary step of a legal constitution for the Iraqi Kurdistan Region.
However, this poses the question of whether it is possible to draw up a constitution for the Iraqi Kurdistan Region before there is a federal constitution for Iraq as a whole. This would be a reasonable question even for a country which had not suffered the harrowing events and brutal tragedies which have prevailed in Iraq, where a succession of military coups d’etat have ensured the continuing power of dictatorial regimes. For decades, the Kurdish people have borne a far greater share of oppression and racist atrocities than the rest of the Iraqi population.
This has been particularly true since Saddam Hussein’s regime intensified its oppression by the use of chemical weapons, and by the implementation of the genocidal Anfal Campaign in which more than 182,000 innocent Kurds perished and more than 4,000 villages and dozens of small Kurdish towns were razed to the ground. This was accompanied by the enforced, mass expulsion of Kurdish populations from their homelands and by the ethnic cleansing of their areas, as occurred in that part of Kurdistan which still remain under the control of the dictatorial regime of Iraq.
The Kurdish Parliament adopted the principle of federalism for two main reasons: firstly, to safeguard the people of Iraqi Kurdistan from further atrocity, as the federal system contains provisions available in neither decentralized nor autonomous systems and, secondly, to emphasize the desire of the people of Iraqi Kurdistan to maintain the integrity of Iraq, alongside the Iraqi Arabs, whilst exercising their right to self-determination. For this reason, the Parliament has demanded neither independence nor confederation.
In its demand for the establishment of a democratic, federal state which fully protects human rights, the Parliament of Kurdistan was inspired by the examples of some federal systems in the West, whilst taking into account the specific issues relating to Iraq and the particularity of the Kurdish people as a distinct nation with its own language, culture and heritage, and its legitimate ambition to enjoy the right of self-determination. These principles should form the basis of any future Constitution of a federal, democratic Iraq in which the Iraqi political parties are clearly defined. The establishment of such a state must be based on a contractual agreement between Kurdistan and the Arab Iraqi Region.
As the legally authorized representative of the people, the Parliament of the Iraqi Kurdistan Region has adopted the principle of federalism and has proposed it to Arab Iraq. If the authorized Arab representative body were to adopt this principle, it would represent a major and positive step towards a bright future for Iraq. However, should they refuse it, no other arrangement could be imposed on the Iraqi Kurdistan Region by the Central Government, since it holds no mandate to enforce any measures on the Iraqi Kurdistan Region. It would be contrary to the right to self-determination for the Kurdish people in Iraq, which is an inviolable entitlement that should, and must, be exercised by the Kurds alone.
In an important development in the recent political history of Iraq, this principle of federalism and the right to self-determination as a constitutional framework for post-Saddam Iraq, was accepted and endorsed in October 1992, by the Iraqi National Council (INC) which was, at that time, the umbrella organization representing all the main politically effective factions of the Iraqi opposition. There are, of course, other groups in the Iraqi opposition who do not accept it and who object either directly or indirectly. They do not, however, represent active of effective parties amongst the Iraqi opposition and, in any case, they are a minority. Democracy accepts the views of the majority.
It is important to emphasize that the establishment of federalism as a legal, contractual agreement between two parties, Kurdistan and the Arabic part of Iraq, would mean that both Regions would have equal rights, irrespective of geographic or demographic size or economic capabilities, and must enjoy extensive powers. The concept of federalism implies complete equality on both sides of the federal union, including equal participation in the central administration of the Federal State and equal membership of the Upper House. The latter would form one of two main pillars of the central legislative authority with wide powers to decide common policies of the Federal State.
The administration of the Federal State must be based on democratic elections and on the protection of all aspects of human rights. To ensure this, a High Court must be created, accessible to all parties, groups and individuals and its decisions must be binding on all. All these points, as well as a definition of the boundaries of the two Regions, must be clearly specified in any future Iraqi Constitution.
Here we must return to the question: is it possible to legislate a Constitution for the Iraqi Kurdistan Region, though now free of the regime, before there is a new Constitution for Iraq, especially since the Ba’ath party is still in power? Should we wait until this regime is removed and replaced by another, which believes in democracy and federalism? If so, then for how long should the Parliament of Iraqi Kurdistan wait before legislating a Constitution for the Region, especially since there is nothing clear on the political horizon to suggest that the regime is likely to fall, even though several years have elapsed since the Gulf War and despite its internal, regional and international isolation and the economic embargo imposed on it? Is it logical that every institution of the Iraqi Kurdistan Region, including the Parliament, Regional Government and judicial bodies, should remain without a Constitution to regulate their authority and power on the pretext that no Constitution exists for the whole of Iraq? It should be remembered here, that the power to legislate a constitution for the Iraqi Kurdistan Region belongs to the Regional Parliament and the people of Kurdistan alone, and not with the Federal Parliament or the whole population of Iraq.
For all the foregoing reasons, we believe that we must proceed with legislating such a Constitution without further delay. This is now being urged by all Kurdish lawyers and legal and judicial authorities, as well as by a large number of members of the Kurdish Parliament. The sad events of May 1994 and later, which led to the armed conflict between the two main Kurdish political parties, served only to prove that the lack of a Constitution for the Region ensured that only the dictatorial regime in Baghdad and other neighbouring states, benefited. It seems that the fear of being accused of separatism - an accusation made against the Kurds for decades by the Iraqi Regime and other neighbouring countries, as well as from certain sections of the Iraqi opposition - has caused the Kurdish leaders to abandon the idea of a Constitution despite the pressure by Kurdish jurists mentioned before.
In mid-1992, as a personal initiative, after studying most of the federal systems in the world and their development, I began to draft a Constitution for the Iraqi Kurdistan Region in the hope that it would stimulate discussion among the legal profession and political parties. This document was eventually passed to an official Legal Committee in Kurdistan, of which I was a member, before being presented to the Kurdish Government and Parliament in its final draft. Today, I will attempt to highlight some of the bases and contents of the proposed Constitution. The document contains a preamble, and five parts in 109 articles.
The Preamble summarizes the conditions prevailing in Kurdistan at the end of the First World War and explains how Kurdistan, the Arab countries and Armenia, - all part of the Ottoman Empire - were specified by the American President, Woodrow Wilson, in his proposal to the Peace Conference in Paris in 1919, in which he asked for them all to be put under an international mandate. It mentions the Sevres Treaty of 1920, which agreed, to the formation of a Kurdish state from Northern and Southern Kurdistan. It also explains how the Treaty of Lausanne excised these decisions in 1923 following the assumption of power in Turkey by General Mustafa Kemal. Britain, which at that time held a mandate on Iraq, supported the newly created Iraqi State in annexing the Mosul Wilayet to it as large quantities of oil had been discovered there. So Kurdish oil became the principal reason for the division of Kurdistan. From then on, successive Iraqi regimes have used this source of wealth to destroy, rather than to build Kurdistan. Most of Iraq’s oil is produced in Kirkuk, the town from which I come; a town which the regime has turned into an Arab settlement after the expulsion of most of its Kurdish, Turkmans and Assyrians inhabitants and the settling of tens of thousands of Arab families there, with massive financial and other privileges.
Also described in the Preamble is the joint declaration, in an official document, of the British and Iraqi governments on the 24th of December 1922, of their recognition of the right of the Kurds to enjoy wide autonomy, including the creation of Kurdish Government within the newly created state of Iraq. It now seems that this declaration, which was never acted upon, was simply a ploy to persuade the Kurds to join the Kingdom of Iraq. The tragedies and atrocities suffered by the Kurds ever since Southern Kurdistan was made part of Iraq in December, 1926, especially from 1963 onwards, mass expulsions aimed at changing the demographic character of the Region, and the systematic attempts to exterminate the Kurdish people of Iraq, are also described. It points out that the United Nations Charter supports the Kurdish people in their claim to the right to self-determination. It states also that recognition of this right does not necessarily mean its separation from Iraq, but rather reinforces the concept of participating, with the Arabs of Iraq, in a free union within a democratic, federal and non-totalitarian state. The Preamble concludes with the statement “the enjoyment by the people of Kurdistan of their constitutional rights must be regarded as a pre-requisite of the federal system”.
The main body of the Constitution consists of five parts, which deal, principally, with the nature of the political system in the IKR and its relationship with the central authorities, civil rights and freedoms, the regulation of the Regional Authorities and the remit of the Supreme Legal Council. The fifth part deals with some general provisions. I give here a brief explanation of some of its main points relating to the peculiar circumstances of the IKR and its relationship with the Central Authorities.
Definition of the borders of the Iraqi Kurdistan Region:
The first article of the draft Constitution states that the IKR includes the Governorates of Arbil, Duhok, Sulaimani and Kirkuk as recognized by its administrative borders prior to 1968, in addition to the Kurdish districts and sub-districts of Mosul, Diyalah and Kut. This definition may appear strange to those unacquainted with Iraqi affairs during the latter part of this century. For instance, the definition relating to the Kirkuk Governorate is not without good reason. Ever since the Ba’ath party assumed power in 1968, they have pursued a systematic campaign to change the demography of this Governorate where most of Iraq’s oil is produced. Their policies have included:
- Changing the name of the Governorate from Kirkuk to the Arabic name of Al Tamim (following the nationalization of the oil industry) so as to obscure its historic name.
- Annexing four of the seven districts of Kirkuk and linking them with other, adjacent Governorates so that the Kurds become a minority in the Kirkuk Governorate.
- Forcibly expelling tens of thousands of Kurdish, Turkman and Assyrian families and replacing them with Arab families brought from central and southern Iraq who enjoyed incentives and privileges in housing and employment and were given financial rewards.
- Forcibly deporting all Kurdish farmers from 779 villages in the Governorate of Kirkuk and settling Arab tribes in some of these villages who were armed and given all the agricultural land there.
The same methods were used in all Kurdish districts and sub-districts within the Governorates of Mosul, Diyalah and Kut. It is, therefore, essential that these actions should be reversed and that the Kirkuk region, as well as the other Kurdish areas stills under the control of the Iraqi regime, must become part of the IKR. We could have asked to return to the well-documented historical and geographical facts, including those from some Arab authorities, to define the borders of the IKR, but in order to avoid the charge of separatism we chose to use the official borders of the Governorate as they were before the policy of ethnic cleansing began to be practised.
In the Accord of the 11th of March 1970, between the Kurds and the Central Government, a decision on the fate of the Kirkuk Governorate, which was under the control of the regime, was postponed in order that a special Census would be taken there in a specified time. During this time, the regime implemented its policy of ethnic cleansing there, contrary to that Accord.
However, even with the demographic changes resulting from this policy, it became clear that any Census held there would not be in the regime’s favour. For this reason, the Census was never organized and this led to the armed conflict between Kurds and the regime, which re-commenced in March 1974. From that time to the present day, the regime’s policy of ethnic cleansing has been intensified in all regions under its control, which is why the Kurds refuse to accept the resulting demographic changes. The only basis for the definition of Kurdistan’s borders must be the Official Census of 1957.
Guarantees for the Continuing Existence and the Future of the IKR:
The Kurds have suffered greatly under the various Iraqi regimes, particularly since 1963. This has resulted in a lack of confidence, which will continue for a long time to come. It is, therefore, crucial that the Region should have solid guarantees, secure enough to prevent any possible attempts by the Central Government to threaten it, to interfere illegally in its affairs or even to abolish it. To this end, the proposed Constitution states that the Region, or any part of it, cannot be abolished or joined with another Region without the consent of its people. It also states that deploying Kurdish armed forces outside the Region, or sending Iraqi armed forces into the Region, without the written agreement of the Regional Government of Kurdistan, is illegal. This is to prevent the IKR being subject to threats of attempts of forced military change by the Central Government.
Definition of the Financial Status of the IKR:
Recognition of the existence of the Region and of its constitutional power will be incomplete if the IKR does not have its own financial resources by imposing its own taxes and excise duties. Therefore, Article 13 states that it is the responsibility of the Regional Parliament alone to identify the circumstances and amounts of both regional and central taxes and excise duties within the IKR. A certain percentage of these taxes collected from within the IKR must be allocated to the Regional Budget. It is also necessary to allocate a percentage of the Central Government Budget to the Regional Budget, which is to be fixed at at least 25%, which represents the ratio of the population of Kurdistan to that of the whole of Iraq. This is not excessive given the destruction suffered by Kurdistan for decades, which have resulted in virtually complete economic paralysis. In return, the Constitution states that the wealth of the IKR, including oil and minerals, will not be for the Region alone but will be shared equally between it and the Central Government. This demonstrates clearly that the Kurds wish to base their relationship on mutual co-existence and not on economic gain.
The Iraqi regime and some of the so-called Iraqi opposition who persist in claiming that these resources of oil in the Region must be allocated solely to the Central Government, are, in fact, attempting to base the relationship between Kurds and Arabs on economic domination. This is also the reason for their insistence that the Kirkuk region must remain under the control of the Central Government or have special status, contrary to the historical and geographical evidence that it is part of Kurdistan.
Definition of Remits and Responsibilities of Central and Regional Authorities:
Most federal constitutions are inclined to define these for the central authorities, leaving the rest as regional remits, and this is what the proposed Constitution does. For central authorities, these were defined as matters relating to foreign policy, international relations, defence, issuance of national currency, citizenship, customs and excise and the administration of ports, international airports, postage and central telecommunications.
This is a summary of the main content of the proposed Constitution for the IKR. The remaining articles do not differ from those of similar constitutions in the civilized world, particularly those relating to civil rights and the regulation of the relationship between legislative, executive and judicial authorities in the Region.
(*) Speech presented to the Iraqi Constitutional Studies Project at Princeton University (USA), on September 17th, 1994
Thursday, 10 October 2002
The Kurdish view on the constitutional future of Iraq - Part I
10 October 2002
By Dr Nouri Talabany
A draft Constitution for the Iraqi Kurdistan Region was prepared by me and later adopted, with some amendments, by an official High Legal Committee in 1992. It was presented, in its revised version, to the elected Parliament of that Region after it had unanimously adopted the federal system on 4th October 1992. About one-third of the members of that Parliament (33/105), from both main political parties, presented a written request to the Speaker for the project to be discussed and, later, adopted. Not only those members of Parliament, but also most members of the legal profession, supported it.
This proposed Constitution suggests ways in which the relationship between the Region of Iraqi Kurdistan and the Central Government in Baghdad can be developed.
I have added the text of a speech which I gave to a Constitutional Conference at Princeton University in September 1994, which explains clearly the ideas proposed in it in the hope that, together, they will explain the Kurdish view on the constitutional future of Iraq when its present dictatorial regime is no more.
The Parliament of the Iraqi Kurdistan Region proposed a federal system, which must be agreed by the Arab people of Iraq. The Kurdish view of how this system would apply to the Iraqi Kurdistan Region is explained in the text of this proposed Constitution. Such a system must be based, also, on democracy and freedom and on the respect of all aspects of human rights, including the rights of ethnic minorities and religious groups in the whole of Iraq. This would happen if the representative body of Arab Iraq accepted this proposal. If, however, this proposed system is not agreed, the Central Government cannot impose any other system on the Kurdistan Region, as it is contrary to the will of the Kurdish people.
This new, peaceful, federal, democratic Iraqi state, composed of two regions, i.e. Kurdistan and Arab Iraq, would play a vital role in maintaining peace and stability in the Middle East where it has previously been marginalized as a result of its failure to respect the wishes of its people.
London, 18th June 1999
The Draft Constitution
Preamble
Every society requires the existence of an authority that sets down general rules that are binding on the members of that society, and that authority is not legitimate unless exercised by the people or their representatives. Therefore, any government that does not come to power through election by the people is not a legitimate government. The exercise of power is determined by legal principles set down by peoples’ representatives and thus the constitution is considered as the highest legal standard, superseding all other laws. The government’s exercise of power is not legitimate unless it is exercised in the way prescribed by the constitution.
The people of Iraqi Kurdistan, too, have the right to govern themselves through a legitimate, elected body. They were exercising this right when, on May 19, 1992, they elected their first Regional Parliament.
Kurdistan was among the countries that were part of the Ottoman Empire until the end of the First World War. It was mentioned by name, together with the Arab countries and Armenia, by the American President Woodrow Wilson, in his plan submitted to the Peace Conference in Paris in 1919, which created the League of Nations. He asked that they all be put under an international mandate. The Sevres Treaty was concluded between the Allies and the Ottomans on August 10, 1920, and stipulated in articles 62-64 that preparations be made for the establishment of a Kurdish state which was to be, initially, Northern Kurdistan, to be joined later by Southern Kurdistan which comprised the greater part of the Ottoman Mosul Wilayet. Subsequent to the suspension of the articles of the Sevres Treaty dealing with the future of the Kurdish nation, and after the signing of the Lausanne Treaty between the Allies and the new regime in Turkey on July 24, 1923, Southern Kurdistan was annexed to the Iraqi Kingdom which was created by the British from the two Wilayets of Basra and Baghdad in 1921. The newly created Iraqi State and the British government, which had a mandate over Iraq, issued a joint declaration on December 24, 1922 which was communicated officially to the League of Nations by the mandatory power. In it, they stressed the right of the Kurdish people to a broad measure of autonomy within the new Iraqi State, including the formation of a Kurdish government.
It called on the Kurds to form this government themselves and to define their political and economic relations with both the new Iraqi State and the British government through negotiations with them. This joint declaration constitutes an official recognition of the right of the Kurdish people to establish a Kurdish entity within the newly created Iraqi State. Therefore, this joint Iraqi-British declaration constitutes a legal and historic basis for the demand by the people of Southern Kurdistan for a federal system after their annexation to the new Iraqi State in 1926. Under such a system, the Kurdistan Region will have sufficient safeguards to avoid any repetition of the tragedies that have befallen it for decades, especially since 1963, including the large scale relocation of the people in order to alter the ethnic composition and national identity of Kurdistan, and the systematic and total annihilation of its people by every type of lethal weapon, and the destruction of thousands of Kurdish villages and scores of small towns. All these acts can be considered as crimes of genocide, which are covered by the International Agreement on the Prevention of Genocide, adopted in Paris by the United Nations on December 9, 1948.
At a time when great changes have taken place in the world concerning the achievement of national rights, the reaffirmation of respect for human rights and basic freedoms for all people regardless of race, gender, language, or religion, the Kurdish people are still subject to crimes of genocide. The United Nations’ Charter was designed to save humanity from the tragedies of war and destruction and to reaffirm this international body’s belief in basic human rights and dignity and in equal rights for men and women and of all nations, great and small. The Kurdish people’s demand for self-determination, following the example of all other nations of the world, is a legitimate demand and is in accordance with Paragraph two of Article two of that Charter.
While suffering the greatest hardship during the latter part of this century, and being forced to carry arms against the successive dictatorships that have ruled Iraq since September 1961 in order to defend their very existence, tens of thousands of Kurds have been martyred. They have also been the victims of the notorious “Anfal” campaign, in which an estimated one hundred and eighty thousand Kurds, including men, women and children, young and old, have died. In March 1991 they courageously rose and liberated most of Kurdistan in a few days, but were then forced to abandon their homes and homeland in a mass exodus unprecedented in history when it was subjected to brutal retaliation by the dictatorship of Baghdad, which temporarily regained control of Kurdistan.
Since then, they have stoically resisted the hardships caused by the withdrawal of the civil administration from much of Kurdistan, and the imposition of an arbitrary economic blockade on it since October 1991 which caused starvation and suffering in the winter cold. Finally, by their impressive participation in the first free election in the history of Kurdistan to elect a Kurdish Parliament, they have expressed their commitment to freedom and their insistence on attaining and safeguarding their legitimate rights, including the right to self-determination.
The recognition of the right of the people of the Iraqi Kurdistan Region to self-determination does not necessarily mean its inevitable separation from Iraq, but it means living with the Arab people of Iraq in a voluntary federation, in a democratic system that recognizes the right of the Kurdish people to self-determination, and that guarantees basic human rights and freedom of expression and a multiplicity of political parties and organizations which will ensure the existence of such a federation and its survival.
History has shown that there can be no peace and stability in a multi-national state unless each nation feels that its rights are protected and that it governs itself by itself. Federalism is nowadays considered to be the best and most suitable system for multinational states provided that they adopt democracy, as this system not only protects the national rights of the member Regions, but also attempts to strengthen the Central Government with regard to the fundamental policies of the country and consolidates the foundations of the state.
In the light of the foregoing, and in order that the people of Kurdistan may enjoy their constitutional rights, which is one of the basic conditions of the federal system, and in order, also, to define the constitutional authority of the Kurdistan Region and to explain how the executive, legislative, and judicial authorities in Region can carry out their responsibilities, this Constitution was adopted for the Kurdistan Region by its Parliament
PART ONE
The Iraqi Kurdistan Region’s Political System
Article (1)
Iraqi Kurdistan, which comprises the governorates of Arbil, Dohuk, Sulaimani, and Kirkuk (with its pre-1968 administrative boundaries), and the Kurdish administrative districts of the Mosul, Diyala, and Koot governorates, is a Region of the Federal Republic of Iraq, which will have a democratic, parliamentary system.
Article (2)
1. All power rests with the people of the Iraqi Kurdistan Region, who will determine their future unilaterally.
2. The people exercise their power through their representatives or, in exceptional cases, through a plebiscite, according to the provisions of this Constitution or according to a decision by the Iraqi Kurdistan Region’s Parliament.
Article (3)
The people of Iraqi Kurdistan enter into a voluntary federation with the Arabic part of Iraq within the framework of a Federal Iraqi Republic that will include two Regions enjoying equal rights guaranteed by a Federal Constitution to be enacted by the legislatures of the two Regions and the elected Federal Legislative Assemblies.
Article (4)
The population of Iraqi Kurdistan is comprised of Kurds, who are in the majority, and Turkmans, Assyrians and Arabs permanently resident in Kurdistan. This Constitution will establish the legitimate national rights of these minorities and law will regulate these rights.
Article (5)
1. Kurdish is the official language of Iraqi Kurdistan. In addition, Arabic will be an official language in matters concerning communications with the Federal Government.
2. Instruction at all levels of education will generally be in Kurdish. Arabic and one foreign language will be taught towards the end of the elementary level and in the higher levels. Minorities in Iraqi Kurdistan have the right to use their own language until they reach higher education.
Article (6)
The capital of Iraqi Kurdistan is Arbil (Hawler). Another city, when necessary, may be chosen as temporary capital by the Regional Government and with the approval of the Region’s Chief Executive.
Article (7)
Law shall determine the flag, the national anthem and the emblem of the Iraqi Kurdistan Region. A Federal law shall determine the Iraqi Republic’s flag, national anthem and emblem.
Article (8)
1. Nawroz, which falls on March 21 of each year, is the Iraqi Kurdistan Region’s National Day.
2. The Kurdish calendar will be used in the Region in addition to the Gregorian calendar.
Article (9)
The status of Iraqi Kurdistan cannot be abolished by any means whatsoever; neither can any part of it be annexed to another Region except with the approval of two-thirds of the Kurdistan Region’s Parliament and that of the people of the Region by a referendum.
Article (10)
1. Twenty five percent (25%) of the General Federal Budget and other Central Government budgets shall be allocated to the Kurdistan Region. This percentage shall not be reduced by the decisions of the Federal Legislature or Government.
2. Fifty percent (50%) of the revenues from oil and minerals extracted from the Kurdistan Region’s soil shall be allocated to the Region itself.
Article (11)
The approval of the Kurdistan Region’s appropriate authorities must be obtained for the ratification of any financial or other treaties or agreements that the Federal Government wishes to conclude with other countries and international organizations, which may limit or decrease the authority of the Regional Government or affect its borders.
Article (12)
1. The legislative, judicial, and executive authorities in the Iraqi Kurdistan Region shall hold all powers, except those vested in the Federal Government, i.e. those relating to defence matters, international relations, issuance of national currency, citizenship, tariffs and customs, international airports, and central telephone and mail services.
2. The Kurdistan Region shall have the right to conclude treaties and agreements with foreign and international organizations and entities in humanitarian, cultural, and commercial fields.
Article (13)
The Kurdistan Region will be divided into administrative districts and governed on a decentralized basis.
Article (14)
The Kurdistan Region’s armed forces shall not be deployed outside the Region, nor shall the Federal armed forces be permitted to enter the Region without the written approval of the Region’s Government.
Article (15)
The citizens of the Iraqi Kurdistan Region shall perform military service only within the Region itself.
Article (16)
The citizens of the Iraqi Kurdistan Region shall serve proportionate to the Region’s population in all the Federal Ministries and institutions and international bodies in which Iraq participate.
PART TWO
Civil Rights and Freedoms
Chapter One
Civil Rights
Article (17)
1. All citizens are equal before the law with regard to their rights and responsibilities and all are accorded its protection equally and without discrimination.
2. Equal opportunity is guaranteed to all citizens of the Region.
Article (18)
Human dignity, honour and privacy are protected. A person’s privacy, honour and reputation shall not be violated arbitrarily or illegally.
Article (19)
1. An accused is presumed innocent until proven guilty in a court of law.
2. No one shall be sentenced to death for a crime committed for political reasons.
3. No one shall be sentenced to death for a crime committed while less than twenty years of age.
Article (20)
Punishment is personal; no one shall be punished for another person’s crime.
Article (21)
The right to defence is sacrosanct. The law guarantees an accused the right to defend himself personally or through a lawyer.
Article (22)
1. Law determines crimes and punishments.
2. No act shall be punishable unless it is considered a crime at the time of its commission.
3. When more than one penal code applies to a crime, the one more favourable to the accused shall be applied.
Article (23)
Anyone convicted of a crime is entitled to compensation as prescribed by law if it is discovered that a serious miscarriage of justice has occurred.
Article (24)
1. Any attack on a public service official during the performance of his duties, or as a result of them, is considered a crime.
2. Any attack by a public service official on a citizen’s personal freedom, privacy, or other rights and freedoms guaranteed by law and the Constitution, is considered a crime.
Article (25)
1. No one shall be detained, arrested, or imprisoned without a warrant from a judicial authority or any other authority authorized by law.
2. Under no circumstances shall anyone be tortured physically or psychologically for any reason whatsoever during his arrest, detention, or imprisonment.
3. A person is entitled to claim fair compensation for any damage incurred as a result of a violation of sections one and two of this Article.
4. A person is entitled to fair compensation for any material or psychological damage he suffers as a result of his arrest or detention, if proven innocent.
5. A person who is apprehended or arrested has the right to contact his family and his lawyer before he is interrogated, unless it is impossible to do so or there is convincing or compelling reason to speed up the interrogation.
Article (26)
Peoples’ homes are sacrosanct and cannot be entered or searched except within the limits and the procedures prescribed by law.
Article (27)
Work is the right and responsibility of every citizen and a source of pride. It is required by the necessity of contributing to the rebuilding, protection and development of Kurdistan. The Regional Government shall make every effort to provide employment for everyone able to work. No one shall be forced to work without pay.
Article (28)
By law the Kurdistan Regional Government provides the citizens with social security and other safeguards against illness, disability, and old age.
Article (29)
The Kurdistan Regional Government guarantees the Region’s citizens the right to an education. Elementary education shall be compulsory and the Regional Government shall seek to combat illiteracy by all legal means.
Article (30)
The Kurdistan Regional Government shall guarantee the freedom of scientific and academic research and shall provide the means for its advancement. It will develop and encourage excellence, creativity, and ingenuity in scientific, cultural, and intellectual areas.
Article (31)
1. Private property shall be protected by the Kurdistan Regional Government and regulated by law.
2. Private property cannot be taken away unless it is in the public interest to do so, in which case there will be fair compensation.
Article (32)
1. A citizen’s right to travel within and without the Kurdistan Region is guaranteed and his movement or residency cannot be restricted except in cases prescribed by law.
2. No citizen shall be banished from the Kurdistan Region, or barred from returning to live there, except in cases prescribed by law.
Article (33)
The right of citizenship is the most basic right and cannot be taken away for any reason whatsoever.
Article (34)
1. The right of political asylum is guaranteed to anyone persecuted in his own country and especially to those of Kurdish origin. The law shall regulate the conditions of political asylum and the rights and responsibilities of anyone who is granted such asylum.
2. The extradition of political refugees for any reason whatsoever is prohibited.
Article (35)
Every adult citizen, whether man or woman, residing permanently in the Iraqi Kurdistan Region has the right to elect, and to be elected, and to participate in plebiscites and in public life in accordance with the provisions of the Constitution and the law.
Chapter Two
Liberties and their Regulation
Article (36)
1. Religious freedom is guaranteed to all, provided it is not incompatible with the provisions of the law.
2. The right to perform religious rites is guaranteed.
Article (37)
The right of peaceful assembly and demonstration is guaranteed within the limits of public law and order, and so long as it does not violate the rights and liberties of others. Law will regulate this right.
Article (38)
The right to strike and to withhold labour is guaranteed within the limits of the law.
Article (39)
Freedom of thought, and the right of expression by means of cultural and mass media is guaranteed. Law will regulate these freedoms.
Article (40)
Freedom of the press, printing and publishing is guaranteed within the law. There will be no censorship of newspapers and other publications except within the provisions of the law.
Article (41)
The media shall operate freely within the provisions of the law and without any violation of individual freedoms and privacy.
Article (42)
The right to form political parties and the freedom to join them are guaranteed to all. Law will regulate this.
Article (43)
The right to form organizations, associations and trade unions and the freedom to join them are guaranteed by law.
Article (44)
Forming political parties, associations, and organizations whose charters, programmes, methodology and conduct are undemocratic is prohibited. Political parties, organizations and associations must conduct their activities openly and without the use of force or violence. They are prohibited from possessing weapons under any circumstances.
Article (45)
Political parties, organizations and associations are prohibited from engaging in racial or sectarian propaganda or in any other act that might inflame racial or religious hatred.
Article (46)
Political parties are forbidden to engage in political or partisan activities in the armed forces and the security forces and among the members of the judiciary.
Article (47)
Political parties, trade unions, organizations and associations are not allowed to receive any domestic or foreign assistance or any movable or immovable property, in violation of the law.
Part Three
The Regional Authorities
Chapter One
The Legislative Authority (The Parliament)
Article (48)
The Iraqi Kurdistan Region’s Parliament represents the people of the Region and it alone has the right to pass Regional Laws, to decide the overall policies of the Region, to approve the Region’s Budget and to plan for economic development. It also maintains supervision over the Government. This will all be done in the manner stated in this Constitution.
Article (49)
The members of Parliament shall be elected by secret ballot by the citizens of the Region, according to law.
Article (50)
The law shall determine the requirements to be met by the parliamentary candidates. Anyone who participated in the planning of the crimes of the oppressive, dictatorial regime of Iraq, or who co-operated in the implementation of those plans, shall not be eligible for candidacy.
Article (51)
A Member of Parliament shall devote his time to his parliamentary work, and his previous job will be kept for him.
Article (52)
A Member of Parliament shall take the following oath before taking office: “ I do solemnly swear by God that I will protect the unity of the people and territory of Iraqi Kurdistan, and that I will protect the vital interests of the people and uphold the Constitution and the law.”
Article (53)
Members of Parliament will receive a salary set by law.
Article (54)
The term of office of Parliament shall be four years from the date of its first session. Preparations will be made during its final forty days of the election for a new Parliament.
Article (55)
Parliament shall arbitrate in the authenticating of the membership of its members. The Kurdistan Region’s High Court shall investigate the legitimacy of any challenges to Parliament after the Speaker refers those challenges to it. The result of the investigation and the court’s decision will be presented to Parliament. Membership will not be invalid except by a decision of a two-thirds majority of the members of Parliament.
Article (56)
A Member of Parliament is prohibited from buying or renting public property and from selling, bartering, or renting out his property to the state, or concluding a deal with the Regional Government as an importer, concessionaire, or contractor.
Article (57)
No Member of Parliament shall be stripped of his membership unless he fails to meet any of the requirements or to carry out the duties of membership. A decision to strip away membership requires a two-thirds majority in Parliament.
Article (58)
Parliament is the only authority able to accept the resignation of its members.
Article (59)
Opinions or ideas expressed by members of Parliament during the performance of their parliamentary duties, or whilst serving on its committees, cannot be held against them.
Article (60)
Unless apprehended in the commission of a crime, no criminal proceedings can be taken against a Member of Parliament except by prior permission of Parliament. If Parliament is not in session, the Speaker’s permission must be obtained and Parliament will be notified of any measures taken at its first meeting on reconvening.
Article (61)
The Region’s Chief Executive must call Parliament to its regular annual sessions before the second of October. If not called to session, it will convene in accordance with the Constitution on the above-mentioned date and will continue its regular sessions for a minimum period of eight months. Parliament will not adjourn before passing the Region’s General Budget.
Article (62)
In exceptional circumstances, the Region’s Chief Executive shall call Parliament to an extraordinary meeting at the request of the Region’s Cabinet, or by a request signed by no less then one-third of the members of Parliament.
Article (63)
The Region’s Cabinet, or ten members of Parliament, may introduce a bill. No bill can be discussed by Parliament before being examined by the appropriate Committee. Any bill, once rejected by Parliament, cannot be reintroduced in its current session.
Article (64)
The Region’s Annual Budget must be submitted to Parliament within one year from the end of the fiscal year. Likewise, a final annual report and the observations of the Region’s auditors must be submitted to Parliament who may request from them additional reports or information. In case of delay in the approval of the General Budget, monthly expenditures shall not exceed one-twelfth of the previous year’s General Budget.
Article (65)
The Region’s Government is not permitted to borrow money or to commit itself to a project that would incur further expenditure by the Treasury at a future date without the approval of Parliament.
Article (66)
Every Member of Parliament has the right to address questions to the Prime Minister and the members of the Cabinet within their areas of competence. Such questions shall be answered by the Prime Minister, or the members of the Cabinet, or by persons appointed to represent them. Members of Parliament also have the right to cross-examine them and to hold them accountable.
Article (67)
The deputy Prime Minister and ministers may be members of Parliament. Those who are not members may attend its meetings and Committees.
Article (68)
Once having taken the oath of office, a Member of Parliament shall devote all his time to his parliamentary work.
Please read Part II now:
The Kurdish view on the constitutional future of Iraq - Part II
By Dr Nouri Talabany
A draft Constitution for the Iraqi Kurdistan Region was prepared by me and later adopted, with some amendments, by an official High Legal Committee in 1992. It was presented, in its revised version, to the elected Parliament of that Region after it had unanimously adopted the federal system on 4th October 1992. About one-third of the members of that Parliament (33/105), from both main political parties, presented a written request to the Speaker for the project to be discussed and, later, adopted. Not only those members of Parliament, but also most members of the legal profession, supported it.
This proposed Constitution suggests ways in which the relationship between the Region of Iraqi Kurdistan and the Central Government in Baghdad can be developed.
I have added the text of a speech which I gave to a Constitutional Conference at Princeton University in September 1994, which explains clearly the ideas proposed in it in the hope that, together, they will explain the Kurdish view on the constitutional future of Iraq when its present dictatorial regime is no more.
The Parliament of the Iraqi Kurdistan Region proposed a federal system, which must be agreed by the Arab people of Iraq. The Kurdish view of how this system would apply to the Iraqi Kurdistan Region is explained in the text of this proposed Constitution. Such a system must be based, also, on democracy and freedom and on the respect of all aspects of human rights, including the rights of ethnic minorities and religious groups in the whole of Iraq. This would happen if the representative body of Arab Iraq accepted this proposal. If, however, this proposed system is not agreed, the Central Government cannot impose any other system on the Kurdistan Region, as it is contrary to the will of the Kurdish people.
This new, peaceful, federal, democratic Iraqi state, composed of two regions, i.e. Kurdistan and Arab Iraq, would play a vital role in maintaining peace and stability in the Middle East where it has previously been marginalized as a result of its failure to respect the wishes of its people.
London, 18th June 1999
The Draft Constitution
Preamble
Every society requires the existence of an authority that sets down general rules that are binding on the members of that society, and that authority is not legitimate unless exercised by the people or their representatives. Therefore, any government that does not come to power through election by the people is not a legitimate government. The exercise of power is determined by legal principles set down by peoples’ representatives and thus the constitution is considered as the highest legal standard, superseding all other laws. The government’s exercise of power is not legitimate unless it is exercised in the way prescribed by the constitution.
The people of Iraqi Kurdistan, too, have the right to govern themselves through a legitimate, elected body. They were exercising this right when, on May 19, 1992, they elected their first Regional Parliament.
Kurdistan was among the countries that were part of the Ottoman Empire until the end of the First World War. It was mentioned by name, together with the Arab countries and Armenia, by the American President Woodrow Wilson, in his plan submitted to the Peace Conference in Paris in 1919, which created the League of Nations. He asked that they all be put under an international mandate. The Sevres Treaty was concluded between the Allies and the Ottomans on August 10, 1920, and stipulated in articles 62-64 that preparations be made for the establishment of a Kurdish state which was to be, initially, Northern Kurdistan, to be joined later by Southern Kurdistan which comprised the greater part of the Ottoman Mosul Wilayet. Subsequent to the suspension of the articles of the Sevres Treaty dealing with the future of the Kurdish nation, and after the signing of the Lausanne Treaty between the Allies and the new regime in Turkey on July 24, 1923, Southern Kurdistan was annexed to the Iraqi Kingdom which was created by the British from the two Wilayets of Basra and Baghdad in 1921. The newly created Iraqi State and the British government, which had a mandate over Iraq, issued a joint declaration on December 24, 1922 which was communicated officially to the League of Nations by the mandatory power. In it, they stressed the right of the Kurdish people to a broad measure of autonomy within the new Iraqi State, including the formation of a Kurdish government.
It called on the Kurds to form this government themselves and to define their political and economic relations with both the new Iraqi State and the British government through negotiations with them. This joint declaration constitutes an official recognition of the right of the Kurdish people to establish a Kurdish entity within the newly created Iraqi State. Therefore, this joint Iraqi-British declaration constitutes a legal and historic basis for the demand by the people of Southern Kurdistan for a federal system after their annexation to the new Iraqi State in 1926. Under such a system, the Kurdistan Region will have sufficient safeguards to avoid any repetition of the tragedies that have befallen it for decades, especially since 1963, including the large scale relocation of the people in order to alter the ethnic composition and national identity of Kurdistan, and the systematic and total annihilation of its people by every type of lethal weapon, and the destruction of thousands of Kurdish villages and scores of small towns. All these acts can be considered as crimes of genocide, which are covered by the International Agreement on the Prevention of Genocide, adopted in Paris by the United Nations on December 9, 1948.
At a time when great changes have taken place in the world concerning the achievement of national rights, the reaffirmation of respect for human rights and basic freedoms for all people regardless of race, gender, language, or religion, the Kurdish people are still subject to crimes of genocide. The United Nations’ Charter was designed to save humanity from the tragedies of war and destruction and to reaffirm this international body’s belief in basic human rights and dignity and in equal rights for men and women and of all nations, great and small. The Kurdish people’s demand for self-determination, following the example of all other nations of the world, is a legitimate demand and is in accordance with Paragraph two of Article two of that Charter.
While suffering the greatest hardship during the latter part of this century, and being forced to carry arms against the successive dictatorships that have ruled Iraq since September 1961 in order to defend their very existence, tens of thousands of Kurds have been martyred. They have also been the victims of the notorious “Anfal” campaign, in which an estimated one hundred and eighty thousand Kurds, including men, women and children, young and old, have died. In March 1991 they courageously rose and liberated most of Kurdistan in a few days, but were then forced to abandon their homes and homeland in a mass exodus unprecedented in history when it was subjected to brutal retaliation by the dictatorship of Baghdad, which temporarily regained control of Kurdistan.
Since then, they have stoically resisted the hardships caused by the withdrawal of the civil administration from much of Kurdistan, and the imposition of an arbitrary economic blockade on it since October 1991 which caused starvation and suffering in the winter cold. Finally, by their impressive participation in the first free election in the history of Kurdistan to elect a Kurdish Parliament, they have expressed their commitment to freedom and their insistence on attaining and safeguarding their legitimate rights, including the right to self-determination.
The recognition of the right of the people of the Iraqi Kurdistan Region to self-determination does not necessarily mean its inevitable separation from Iraq, but it means living with the Arab people of Iraq in a voluntary federation, in a democratic system that recognizes the right of the Kurdish people to self-determination, and that guarantees basic human rights and freedom of expression and a multiplicity of political parties and organizations which will ensure the existence of such a federation and its survival.
History has shown that there can be no peace and stability in a multi-national state unless each nation feels that its rights are protected and that it governs itself by itself. Federalism is nowadays considered to be the best and most suitable system for multinational states provided that they adopt democracy, as this system not only protects the national rights of the member Regions, but also attempts to strengthen the Central Government with regard to the fundamental policies of the country and consolidates the foundations of the state.
In the light of the foregoing, and in order that the people of Kurdistan may enjoy their constitutional rights, which is one of the basic conditions of the federal system, and in order, also, to define the constitutional authority of the Kurdistan Region and to explain how the executive, legislative, and judicial authorities in Region can carry out their responsibilities, this Constitution was adopted for the Kurdistan Region by its Parliament
PART ONE
The Iraqi Kurdistan Region’s Political System
Article (1)
Iraqi Kurdistan, which comprises the governorates of Arbil, Dohuk, Sulaimani, and Kirkuk (with its pre-1968 administrative boundaries), and the Kurdish administrative districts of the Mosul, Diyala, and Koot governorates, is a Region of the Federal Republic of Iraq, which will have a democratic, parliamentary system.
Article (2)
1. All power rests with the people of the Iraqi Kurdistan Region, who will determine their future unilaterally.
2. The people exercise their power through their representatives or, in exceptional cases, through a plebiscite, according to the provisions of this Constitution or according to a decision by the Iraqi Kurdistan Region’s Parliament.
Article (3)
The people of Iraqi Kurdistan enter into a voluntary federation with the Arabic part of Iraq within the framework of a Federal Iraqi Republic that will include two Regions enjoying equal rights guaranteed by a Federal Constitution to be enacted by the legislatures of the two Regions and the elected Federal Legislative Assemblies.
Article (4)
The population of Iraqi Kurdistan is comprised of Kurds, who are in the majority, and Turkmans, Assyrians and Arabs permanently resident in Kurdistan. This Constitution will establish the legitimate national rights of these minorities and law will regulate these rights.
Article (5)
1. Kurdish is the official language of Iraqi Kurdistan. In addition, Arabic will be an official language in matters concerning communications with the Federal Government.
2. Instruction at all levels of education will generally be in Kurdish. Arabic and one foreign language will be taught towards the end of the elementary level and in the higher levels. Minorities in Iraqi Kurdistan have the right to use their own language until they reach higher education.
Article (6)
The capital of Iraqi Kurdistan is Arbil (Hawler). Another city, when necessary, may be chosen as temporary capital by the Regional Government and with the approval of the Region’s Chief Executive.
Article (7)
Law shall determine the flag, the national anthem and the emblem of the Iraqi Kurdistan Region. A Federal law shall determine the Iraqi Republic’s flag, national anthem and emblem.
Article (8)
1. Nawroz, which falls on March 21 of each year, is the Iraqi Kurdistan Region’s National Day.
2. The Kurdish calendar will be used in the Region in addition to the Gregorian calendar.
Article (9)
The status of Iraqi Kurdistan cannot be abolished by any means whatsoever; neither can any part of it be annexed to another Region except with the approval of two-thirds of the Kurdistan Region’s Parliament and that of the people of the Region by a referendum.
Article (10)
1. Twenty five percent (25%) of the General Federal Budget and other Central Government budgets shall be allocated to the Kurdistan Region. This percentage shall not be reduced by the decisions of the Federal Legislature or Government.
2. Fifty percent (50%) of the revenues from oil and minerals extracted from the Kurdistan Region’s soil shall be allocated to the Region itself.
Article (11)
The approval of the Kurdistan Region’s appropriate authorities must be obtained for the ratification of any financial or other treaties or agreements that the Federal Government wishes to conclude with other countries and international organizations, which may limit or decrease the authority of the Regional Government or affect its borders.
Article (12)
1. The legislative, judicial, and executive authorities in the Iraqi Kurdistan Region shall hold all powers, except those vested in the Federal Government, i.e. those relating to defence matters, international relations, issuance of national currency, citizenship, tariffs and customs, international airports, and central telephone and mail services.
2. The Kurdistan Region shall have the right to conclude treaties and agreements with foreign and international organizations and entities in humanitarian, cultural, and commercial fields.
Article (13)
The Kurdistan Region will be divided into administrative districts and governed on a decentralized basis.
Article (14)
The Kurdistan Region’s armed forces shall not be deployed outside the Region, nor shall the Federal armed forces be permitted to enter the Region without the written approval of the Region’s Government.
Article (15)
The citizens of the Iraqi Kurdistan Region shall perform military service only within the Region itself.
Article (16)
The citizens of the Iraqi Kurdistan Region shall serve proportionate to the Region’s population in all the Federal Ministries and institutions and international bodies in which Iraq participate.
PART TWO
Civil Rights and Freedoms
Chapter One
Civil Rights
Article (17)
1. All citizens are equal before the law with regard to their rights and responsibilities and all are accorded its protection equally and without discrimination.
2. Equal opportunity is guaranteed to all citizens of the Region.
Article (18)
Human dignity, honour and privacy are protected. A person’s privacy, honour and reputation shall not be violated arbitrarily or illegally.
Article (19)
1. An accused is presumed innocent until proven guilty in a court of law.
2. No one shall be sentenced to death for a crime committed for political reasons.
3. No one shall be sentenced to death for a crime committed while less than twenty years of age.
Article (20)
Punishment is personal; no one shall be punished for another person’s crime.
Article (21)
The right to defence is sacrosanct. The law guarantees an accused the right to defend himself personally or through a lawyer.
Article (22)
1. Law determines crimes and punishments.
2. No act shall be punishable unless it is considered a crime at the time of its commission.
3. When more than one penal code applies to a crime, the one more favourable to the accused shall be applied.
Article (23)
Anyone convicted of a crime is entitled to compensation as prescribed by law if it is discovered that a serious miscarriage of justice has occurred.
Article (24)
1. Any attack on a public service official during the performance of his duties, or as a result of them, is considered a crime.
2. Any attack by a public service official on a citizen’s personal freedom, privacy, or other rights and freedoms guaranteed by law and the Constitution, is considered a crime.
Article (25)
1. No one shall be detained, arrested, or imprisoned without a warrant from a judicial authority or any other authority authorized by law.
2. Under no circumstances shall anyone be tortured physically or psychologically for any reason whatsoever during his arrest, detention, or imprisonment.
3. A person is entitled to claim fair compensation for any damage incurred as a result of a violation of sections one and two of this Article.
4. A person is entitled to fair compensation for any material or psychological damage he suffers as a result of his arrest or detention, if proven innocent.
5. A person who is apprehended or arrested has the right to contact his family and his lawyer before he is interrogated, unless it is impossible to do so or there is convincing or compelling reason to speed up the interrogation.
Article (26)
Peoples’ homes are sacrosanct and cannot be entered or searched except within the limits and the procedures prescribed by law.
Article (27)
Work is the right and responsibility of every citizen and a source of pride. It is required by the necessity of contributing to the rebuilding, protection and development of Kurdistan. The Regional Government shall make every effort to provide employment for everyone able to work. No one shall be forced to work without pay.
Article (28)
By law the Kurdistan Regional Government provides the citizens with social security and other safeguards against illness, disability, and old age.
Article (29)
The Kurdistan Regional Government guarantees the Region’s citizens the right to an education. Elementary education shall be compulsory and the Regional Government shall seek to combat illiteracy by all legal means.
Article (30)
The Kurdistan Regional Government shall guarantee the freedom of scientific and academic research and shall provide the means for its advancement. It will develop and encourage excellence, creativity, and ingenuity in scientific, cultural, and intellectual areas.
Article (31)
1. Private property shall be protected by the Kurdistan Regional Government and regulated by law.
2. Private property cannot be taken away unless it is in the public interest to do so, in which case there will be fair compensation.
Article (32)
1. A citizen’s right to travel within and without the Kurdistan Region is guaranteed and his movement or residency cannot be restricted except in cases prescribed by law.
2. No citizen shall be banished from the Kurdistan Region, or barred from returning to live there, except in cases prescribed by law.
Article (33)
The right of citizenship is the most basic right and cannot be taken away for any reason whatsoever.
Article (34)
1. The right of political asylum is guaranteed to anyone persecuted in his own country and especially to those of Kurdish origin. The law shall regulate the conditions of political asylum and the rights and responsibilities of anyone who is granted such asylum.
2. The extradition of political refugees for any reason whatsoever is prohibited.
Article (35)
Every adult citizen, whether man or woman, residing permanently in the Iraqi Kurdistan Region has the right to elect, and to be elected, and to participate in plebiscites and in public life in accordance with the provisions of the Constitution and the law.
Chapter Two
Liberties and their Regulation
Article (36)
1. Religious freedom is guaranteed to all, provided it is not incompatible with the provisions of the law.
2. The right to perform religious rites is guaranteed.
Article (37)
The right of peaceful assembly and demonstration is guaranteed within the limits of public law and order, and so long as it does not violate the rights and liberties of others. Law will regulate this right.
Article (38)
The right to strike and to withhold labour is guaranteed within the limits of the law.
Article (39)
Freedom of thought, and the right of expression by means of cultural and mass media is guaranteed. Law will regulate these freedoms.
Article (40)
Freedom of the press, printing and publishing is guaranteed within the law. There will be no censorship of newspapers and other publications except within the provisions of the law.
Article (41)
The media shall operate freely within the provisions of the law and without any violation of individual freedoms and privacy.
Article (42)
The right to form political parties and the freedom to join them are guaranteed to all. Law will regulate this.
Article (43)
The right to form organizations, associations and trade unions and the freedom to join them are guaranteed by law.
Article (44)
Forming political parties, associations, and organizations whose charters, programmes, methodology and conduct are undemocratic is prohibited. Political parties, organizations and associations must conduct their activities openly and without the use of force or violence. They are prohibited from possessing weapons under any circumstances.
Article (45)
Political parties, organizations and associations are prohibited from engaging in racial or sectarian propaganda or in any other act that might inflame racial or religious hatred.
Article (46)
Political parties are forbidden to engage in political or partisan activities in the armed forces and the security forces and among the members of the judiciary.
Article (47)
Political parties, trade unions, organizations and associations are not allowed to receive any domestic or foreign assistance or any movable or immovable property, in violation of the law.
Part Three
The Regional Authorities
Chapter One
The Legislative Authority (The Parliament)
Article (48)
The Iraqi Kurdistan Region’s Parliament represents the people of the Region and it alone has the right to pass Regional Laws, to decide the overall policies of the Region, to approve the Region’s Budget and to plan for economic development. It also maintains supervision over the Government. This will all be done in the manner stated in this Constitution.
Article (49)
The members of Parliament shall be elected by secret ballot by the citizens of the Region, according to law.
Article (50)
The law shall determine the requirements to be met by the parliamentary candidates. Anyone who participated in the planning of the crimes of the oppressive, dictatorial regime of Iraq, or who co-operated in the implementation of those plans, shall not be eligible for candidacy.
Article (51)
A Member of Parliament shall devote his time to his parliamentary work, and his previous job will be kept for him.
Article (52)
A Member of Parliament shall take the following oath before taking office: “ I do solemnly swear by God that I will protect the unity of the people and territory of Iraqi Kurdistan, and that I will protect the vital interests of the people and uphold the Constitution and the law.”
Article (53)
Members of Parliament will receive a salary set by law.
Article (54)
The term of office of Parliament shall be four years from the date of its first session. Preparations will be made during its final forty days of the election for a new Parliament.
Article (55)
Parliament shall arbitrate in the authenticating of the membership of its members. The Kurdistan Region’s High Court shall investigate the legitimacy of any challenges to Parliament after the Speaker refers those challenges to it. The result of the investigation and the court’s decision will be presented to Parliament. Membership will not be invalid except by a decision of a two-thirds majority of the members of Parliament.
Article (56)
A Member of Parliament is prohibited from buying or renting public property and from selling, bartering, or renting out his property to the state, or concluding a deal with the Regional Government as an importer, concessionaire, or contractor.
Article (57)
No Member of Parliament shall be stripped of his membership unless he fails to meet any of the requirements or to carry out the duties of membership. A decision to strip away membership requires a two-thirds majority in Parliament.
Article (58)
Parliament is the only authority able to accept the resignation of its members.
Article (59)
Opinions or ideas expressed by members of Parliament during the performance of their parliamentary duties, or whilst serving on its committees, cannot be held against them.
Article (60)
Unless apprehended in the commission of a crime, no criminal proceedings can be taken against a Member of Parliament except by prior permission of Parliament. If Parliament is not in session, the Speaker’s permission must be obtained and Parliament will be notified of any measures taken at its first meeting on reconvening.
Article (61)
The Region’s Chief Executive must call Parliament to its regular annual sessions before the second of October. If not called to session, it will convene in accordance with the Constitution on the above-mentioned date and will continue its regular sessions for a minimum period of eight months. Parliament will not adjourn before passing the Region’s General Budget.
Article (62)
In exceptional circumstances, the Region’s Chief Executive shall call Parliament to an extraordinary meeting at the request of the Region’s Cabinet, or by a request signed by no less then one-third of the members of Parliament.
Article (63)
The Region’s Cabinet, or ten members of Parliament, may introduce a bill. No bill can be discussed by Parliament before being examined by the appropriate Committee. Any bill, once rejected by Parliament, cannot be reintroduced in its current session.
Article (64)
The Region’s Annual Budget must be submitted to Parliament within one year from the end of the fiscal year. Likewise, a final annual report and the observations of the Region’s auditors must be submitted to Parliament who may request from them additional reports or information. In case of delay in the approval of the General Budget, monthly expenditures shall not exceed one-twelfth of the previous year’s General Budget.
Article (65)
The Region’s Government is not permitted to borrow money or to commit itself to a project that would incur further expenditure by the Treasury at a future date without the approval of Parliament.
Article (66)
Every Member of Parliament has the right to address questions to the Prime Minister and the members of the Cabinet within their areas of competence. Such questions shall be answered by the Prime Minister, or the members of the Cabinet, or by persons appointed to represent them. Members of Parliament also have the right to cross-examine them and to hold them accountable.
Article (67)
The deputy Prime Minister and ministers may be members of Parliament. Those who are not members may attend its meetings and Committees.
Article (68)
Once having taken the oath of office, a Member of Parliament shall devote all his time to his parliamentary work.
Please read Part II now:
The Kurdish view on the constitutional future of Iraq - Part II
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