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Federalism But One Safeguard for Kurdish Liberty

By: D. Jason Berggren

Florida International University

Miami, Florida, USA

djberggren@hotmail.com

Aug 28, 2005

With sagging approval ratings, growing sentiment against the President’s handling of the war, daily casualty reports, and midterm congressional elections next year, President Bush certainly needs good news to come from Iraq; his presidency and Republican Party fortunes are riding on it. 

But there is a growing sense that the Kurds are getting a constitution they do not want or one they are going to soon regret.

Though Kurdish negotiators appear ready to submit a constitutional proposal to the voters, many news sources have reported that the constitutional process is being hurried to meet presidential and electoral considerations back in Washington and that an Iranian-style Islamic state may be the end result.  Quoted in the Washington Post (August 20), Kurdish negotiator Mahmoud Othman expressed his dismay at Washington’s approach and its approval of Islamic constitutional provisions.  “Really, we are disappointed with that.  It seems the Americans want to have a constitution at any cost.”

Sunnis negotiators are opposed to the currently drafted constitution.  Among other things, the Sunnis want a consolidated, unitary state. The Associated Press (August 27), for instance, reported that Sunni negotiators have “requested a categorical omission of the term federalism from the constitution.”

In “the spirit of compromise,” will U.S. Ambassador Zalmay Khalilzad and the Bush Administration now ask Kurds to abandon federalism too?  Already, the Kurds have compromised on the inclusion of Islamic language to satisfy Shiites.  Already, the Kurds have dropped demands for explicit language on the right to secede to satisfy both Sunnis and Shiites.  Already, the Kurds have dropped outright independence (at least temporarily) to join an Iraqi federal union to satisfy the Bush administration.  Already, the Kurds have agreed to share oil revenues. What more can the Kurdish people give?        

A line must be drawn: federalism cannot be sacrificed.  As the Preamble of Kurdish Constitution notes, “The federalism formula is seen as an ideal solution for the ethnically pluralistic Iraqi society that would safeguard its unity and would, to a large degree, satisfy the legitimate aspirations of the people of Iraqi Kurdistan.”

Federalism is indeed a constitutional framework designed to limit the powers of central governments through the division of power.  Not only is the central government to have a multiple branches sharing power, but power is to be shared with the center and periphery.  True federalism has dual sovereignty—the central government has sovereignty in those areas it has been delegated and the regional/state government have sovereignty in those areas not delegated. Federalism only works if subfederal entities, such as states, regions, or provinces, have reserved spheres of power that cannot be usurped by the central government.  That is, if certain powers are not expressly delegated to the central government, they are reserved to the regions.  In the United States, we call this “states’ rights.”     

In our case here, federalism means power-sharing between Kurdistan and the Iraqi central government.  If the Kurdish people are to preserve their identity, heritage, language, land, and right to govern themselves and prevent future atrocities like those committed by the central government under Saddam Hussein, federalism is one essential bulwark.  Without federalism, Kurdistan will quickly become a place in name only.  The Kurdish people will be overrun and their traditions forced underground, in the name of Iraqi unity and the Iraqi people, by the inevitable centralizing tendencies.   

However, federalism is not sole guarantor of Kurdish liberty.  In addition, the Kurdish people must maintain their collective right to nullification.  Article 74 of the Kurdish Constitution reads, “Any law, regulation, decision, or decree that undermines or sets a limit to the legitimate national rights of the Kurdish people or the citizens of the Kurdistan Region or if they contradict the terms of this Constitution shall be null and void.” [Emphasis added]       

Even with federalism and the separation of powers, a central government, usually if all branches are controlled by the same party, may pass unconstitutional laws.  But what is a region to do if the separated branches of a central government (the president, legislature, and the courts) act unconstitutionally in concert?  That region (Kurdistan) must invoke its right to nullify such acts; the Kurds must invoke Article 74.  This is necessary because the central government cannot be the sole, unfettered interpreter of what is constitutional.  If so, it will most assuredly assume powers it does not possess.  To paraphrase Donald Livingston, a philosophy professor at Emory University in Atlanta, Georgia, unconstitutional activism on the part of a central government must be countered with state or regional activism.

To be constitutional, federal law must have the consent of the parties that formed the federal compact and formed the federal government.  The federal government is a creation of the contracting parties; the federal government did not create the parties.  Kurdistan is a contracting party.  It is neither a creation of nor a mere administrative unit of the federal government.  As the Preamble of the Kurdish Constitution begins, “The Kurds are an ancient people who have lived in their homeland of Kurdistan for thousands of years, a nation with all the attributes that entitle it to practice the right of self-determination similar to other nations and peoples of the world.”  [Emphasis added]  Kurdistan is a place with a sovereign people and a sovereign government with reserved powers.

Finally, to maintain their identity and collective liberties, the Kurdish regional government, Kurdish parties, Kurdish schools, and Kurdish homes must continue to instill in its people that their highest loyalties are to God and Kurdistan.  Loyalty to Iraq must be secondary.  For once provincial loyalty fades away, once loyalty to Kurdistan is made second, the federal government in Baghdad will increasingly centralize power.  Centralization feeds on the diminishment of such ties, and the central government will try to diminish those ties over time.  It happened in the United States. 

Prior to our so-called Civil War, the states held the highest esteem and loyalty from the people.  Americans thought of themselves first as Virginians, South Carolinians, New Yorkers.  After the war and the defeat of the eleven Southern states that tried to secede, the power of the central government grew immeasurably and its ambition to consolidate other peoples, such as the Native Americans in the western territories, the Mormon Christians in Utah, and the independent peoples of Hawaii, Puerto Rico, and the Philippines, only intensified.  The power of and loyalty to the states has never been the same.  “These United States” became “the United States,” the states have been virtually impotent, and no issue is beyond the scope of the federal government.  In a country deemed “one and indivisible,” we all became Americans. 

It is this author’s plea that the Kurds jealously maintain their identity, utilize all measures necessary to preserve their nationhood and collective liberties, and teach their children in homes and schools to put God and Kurdistan first in their hearts.  Teach them their God-given rights and duties as Kurds, their national heroes, their national stories, their days of remembrance and celebration.  Help them find their legitimate place in Iraq and the world as Kurds.  Wave and fly the Kurdish flag as an emblem of what is most dear, even if it offends other Iraqis or U.S. diplomats.  Federalism is but one safeguard to Kurdish liberty.  Nullification and the continued instillation of national self-consciousness are just as important, if not more so.  And most certainly, if all else fails, secession would be the only and legitimate course to pursue.