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