Comment: Flawed Charter Beyond Repair

Those who voted in favour of the constitution because they felt there was no alternative were mistaken.

Oct 27, 2005

By Rebaz Mahmood in Sulaimani

Kurdish leaders told us that the constitution they drafted was the best they could present to the Iraqi Kurdish voters. Not all of our demands were satisfied, but for now nothing more could be done, the leaders admitted.

We must build the Iraqi house from the beginning with different rooms for different groups and windows shining light into each room. But what is the purpose of building a house when you know from the start that you will need to make major improvements? The constitution I voted against on October 15 requires too many repairs.

Among its problems are the provisions that no law can contradict Islam or democracy may prove contradictory in itself. The issue as to who will administer Kirkuk, a traditionally Kurdish city, is delayed until 2007. Kurdish rights to self-determination are not clear enough. And I worry that the Kurdish language will be, in practice, secondary to Arabic.

We demand as Kurds that Iraq be an open and democratic country. The legislators who drafted the constitution said they tried their best to achieve this by including an article that states, "No law that contradicts the principles of democracy may be established." 

If this point stood alone we would have said Amen. But this is not compatible with the provision above, which states, "No law that contradicts the established provisions of Islam may be established."

A friend of mine cited a very simple example: If a person in Najaf wanted to open a liquor store, would he be allowed to do so? Thus the supporters of democracy and those of Islam may collide.

The Kurds fought hard to make Kurdish an official language in the constitution. And in Kurdish Iraq today, official documents are published only in Kurdish, and few young people speak or read Arabic.

Article 4, Item 1, names Kurdish an official government language used side by side with Arabic. But it comes with restrictions. A provision within Article 4 states that Kurdish or Arabic may be used in official speeches and writings. It does not require both languages. Yet the article states explicitly, "The federal institutions and agencies in the Kurdistan region shall use both languages." Is this equal?

Another point I cannot support is the constitution’s stance on Kirkuk.

The document postpones normalising the city and surrounding areas until December 31, 2007. The original residents of this once-majority Kurdish city should be able to return to Kirkuk immediately and receive compensation in order to correct an injustice.

The Arab settlers Saddam’s government sent to Kirkuk need to return to their places of origin and be compensated, as was promised under Article 58 of the Transitional Administrative Law. This issue was supposed to be resolved under the interim government, but it remains postponed.

I doubt this will be resolved in 2007, because the government refuses to make it a priority.

Another “great achievement” our leaders tout is that the Kurdish peshmerga force is kept as is, even though the peshmerga are never directly mentioned. Article 117, Item 5, states that regional governments can have their own internal security forces. Kurdish leaders who helped draft the constitution interpret "guards of the region" to mean peshmerga. But there is undoubtedly a big difference between the duties of the army and internal security forces, which will be part of the interior ministry or federal government. 

The peshmerga forces historically were the only ones to defend Kurdistan. We were besieged on all sides by enemies, including the Iraqi army. We still cannot trust the Iraqi army because they used chemical weapons against us and tortured our people in the past.

Iraqi leaders amended Article 1 to include the sentence, “This constitution is a guarantee for the unity of Iraq."

I believe in a unified Iraq if there is total equality among all groups. But this constitution does not ensure that.

Thus we require that self-determination be an option. Our leaders claimed they achieved the right to Kurdish self-determination, citing the last line of the preamble, “The adherence to this constitution preserves for Iraq its free union, its people, its land and its sovereignty.”

Kurdish leaders interpret the declaration to mean that if the Arab Iraqis do not adhere to the constitution, we will have the right of self-determination.

But if there is murkiness over whether or not the preamble is to be abided by as part of the constitution, the federal supreme court will have the power to interpret and explain it.

For us, the Kurds, the concern is: How will the federal supreme court be formed?

According to Item 2 of Article 89, this court will consist of judges and experts in Islamic jurisprudence and law. A law passed by a two-thirds majority of national assembly members will decide how many experts are chosen and the method of their selection.

The Kurds are minorities in Iraq. Therefore, we will not have as many representatives in parliament and will not have the political weight of Iraq's Arab majority.

If the Kurds demand the right to self-determination, the federal supreme court may reject the demand with the legal justification that the preamble is not part of the constitution.

Under Article 62, a federation council will be formed that includes representatives from governorates, of which there are 18 in Iraq. The governorates will not have individual representatives if they are part of a federation.

The three Kurdish governorates currently make up the only federation in Iraq. That means if it were formed now, Kurdistan would have one representative and the governorates one each, limiting the power of the Kurdish federation.

The federation council’s main objective is to protect the rights of the federations, not the individual governorates.

There are those who believed that they needed to vote in favour of the constitution, because there was no alternative. But in my view, any alternative would have been better than this.

Rebaz Mahmood is an IWPR trainee journalist in Sulaimani.