The Kurdish view on the constitutional future of Iraq - Part II

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