–Matthew Schweitzer, University of Chicago
Iraq’s Kurds have long struggled to control their destiny. Since the 2003 US-led invasion, the Kurdistan Regional Government (KRG) has enjoyed stability, security, and prosperity — in 2014 the region boasted the world’s second-fastest growing economy. This unprecedented economic boom helped create conditions for a more pluralistic and free society than that which developed in Arab Iraq. From their capital in Erbil, Kurdish leaders have proven powerful US allies since Saddam’s ouster, and continue to play a critical role in the fight against the Islamic State (IS). For many American and Kurdish analysts, the KRG is the “other Iraq.”
However, the Kurdish miracle is threatened today by a serious leadership crisis that is undermining the region’s unity and legitimacy. On August 20, 2015 President Masoud Barzani’s term of office supposedly ended. In fact, the Kurdish Parliament had already extended it two years earlier in the face of fierce dissent from opposition parties and civil society. Although this period has ended, Barzani refuses to step down. His Kurdistan Democratic Party (KDP) demands a second extension until 2017, when presidential elections are next due. Carnegie’s Kawa Hassan thus describes the dispute as Kurdistan’s “most severe and…decisive crisis” since the end of the Kurdish civil war in 1998.
On 10 October three protestors were killed in Sulaimaniya province. The incident came nine days and two civilian deaths after demonstrations erupted across the KRG. Ostensibly sparked by rising economic stagnation — oil prices have dropped, and government salaries remain unpaid — the recent outpouring of dissent has become distinctly partisan. Four main parties — Gorran (Movement for Change), the Patriotic Union of Kurdistan (PUK), the Kurdistan Islamic Union, and the Kurdistan Islamic Group — demand Barzani step down. They seek stronger parliamentary mechanisms whereby the president, elected by the parliament, remains accountable to it.
The KDP and its allies, on the other hand, seek an additional two-year extension. They say that Barzani (who has been President since 2005) is the only leader with enough experience to manage current security emergencies — and an eventual Kurdish state. They envision a presidential system that bestows immense power on the executive. This arrangement would give Barzani increased autonomy over critical foreign policy and economic portfolios.
The current security crisis has given new impetus to this strategy. Although the IS front line has stabilized, few Kurds forget the moment in August 2014 when jihadist militants advanced to Erbil’s outskirts. Likewise, the President’s failure to transfer power has received tacit support from powerbrokers — most importantly, the United States, Turkey, and Iran — who value stability over legality in the anti-IS context. Under this political cover Barzani’s party seeks to “threaten away” its opposition. After accusing Gorran of organizing attacks on its offices, KDP security forces blocked Gorran parliamentarians — including the Speaker of Parliament Yousif Mohammed Sadiq — from entering Erbil. The party has since intimidated journalists, sacked opposition MPs, and threatened to establish separate governments in the KRG, which would mean de facto partition.
These issues revolve around the fact that the region lacks a ratified constitution or constitutional court. On 24 June 2009 the Kurdistan Parliament approved a draft constitution, but has since failed to hold the referendum required to bring it into force. The Parliament itself, whose elected members have managed the region since the 1990s, remains unmandated under Iraqi law. The 2009 draft represented an attempt to reduce the KRG’s reliance on the 2005 Iraqi Constitution and cement the region’s autonomy. Ratifying the formal Kurdish constitution, however, has proved problematic. A 21-member committee is currently working to create a permanent constitutional framework, but its efforts have stressed Kurdistan’s political fault lines and undermined pan-Kurdish unity, with few positive results.
Iraqi Kurdistan’s political future hinges on reconciliation between executive and legislative power. In a land with no constitution, how can policymakers address this constitutional crisis? The KDP insists that Barzani can legally maintain his responsibilities in lieu of an acceptable alternative. They base their claim on a 17 August 2015 decision issued by the Kurdistan Consultative Council (KCC) — an entity within the KRG Ministry of Justice authorized to mediate legal disputes between government agencies — that approved an additional two year extension. Barzani solicited KCC opinion through the Deputy Speaker of Parliament, a senior KDP official, bypassing the Gorran-affiliated Speaker.
Opposition parties claim this decision contradicts Kurdistan Law No. 19, Article 1, passed on 30 June 2013, which specified the original term extension: “The term of the president that expires on 20 August 2013, will be extended until 19 August 2015, and cannot be extended for a second time.” However, in the absence of national elections, the KDP insists Barzani must retain his post (He was last elected in 2009, with 70 percent of the popular vote). Although Barzani asked the Kurdish electoral commission in June 2015 to organize elections, the body said it would need six months to plan. So far, no process has been forthcoming.
Barzani’s political acrobatics skirt the boundaries of legality according to the KRG’s draft constitution. Article 64 stipulates: “The President of the Kurdistan Region shall be elected for a term of four years…. He may only be reelected once for a second term.” Article 68, paragraph 2, continues: “When the office of President of the Kurdistan Region becomes vacant, the President of the Kurdistan Parliament [Speaker of Parliament]…shall assume the duties of the presidential office.…” However, Barzani’s allies invoke the fourth paragraph in the same article: “If the President’s term comes to an end, but the holding of new presidential elections is impossible because of war or natural disasters, the President of the Region shall continue to perform his duties until the aforementioned obstacles have been removed.…” In an interview with Al-Jazeera, Vala Farid, KDP member and chairwoman of the legal affairs committee in the Kurdish parliament, said: “When the country is going through war and elections can’t be held on time, based on the principle of continuity, the president will continue running his office with full powers.” Without a Constitutional Court, the KRG lacks an impartial arbiter to resolve such contradictions.
Meanwhile opposition parties have remained relatively powerless to counter the KDP’s maneuvers. An emergency parliamentary session scheduled for 19 August was canceled after only 53 MPs attended — at least 56 of the 111 members must be present to achieve a legal quorum. The KDP has effectively stifled debate about the President’s legitimacy, and prevented any legislative change that might complicate their justifications.
Erbil’s unwillingness to address its growing governance crisis highlights the limits of democratic development in the KRG. Without a clearly-defined judiciary to mediate between conflicting legalities, Iraqi Kurdistan will remain politically gridlocked. Barzani’s power grab ignores the limits to his executive power enshrined in the draft constitution. The President must not turn his back on the miraculous progress over which he has presided. A democratic Kurdistan represents the best chance to defeat IS and stabilize a region at the forefront of the fight against violent extremism. If Barzani cannot foster a sense of ownership amongst all political parties over the Kurdish project, he ultimately risks its future.
Suggested citation: Matthew Schweitzer, A Constitutional Crisis in a Land Without a Constitution: Presidential Terms and Iraqi Kurdistan, Int’l J. Const. L. Blog, Nov. 27, 2015, at: http://www.iconnectblog.com/2015/11/a-constitutional-crisis-in-a-land-without-a-constitution-presidential-terms-and-iraqi-kurdistan/