Blog of the International Journal of Constitutional Law

The Iraq Constitutional Review Committee (CRC) just submitted its final report to Parliament – over two and half years after it began its constitutionally mandated comprehensive review, the report comes in at 65 pages (in English) and represents dozens of amendments to the 2005 Constitution.

The report contains a number of important substantive recommendations that should enjoy widespread support. The report fleshes out the form and character of Iraq’s second chamber of Parliament, the Federation Council; addresses the paralysis regularly faced by the Council of Representatives by reducing the quorum requirement to a third (but retains the absolute majority threshold for decisions); seeks to provide greater status to the Council of Ministers, as opposed to the Prime Minister alone, by making the Council the “supreme executive and administrative branch” and charging it with “develop[ing] the strategies and policies of the country and overs[ing] the implementation of laws and regulations and manag[ing] the work of the government and its institutions;” provides greater clarity on the relationship between independent commissions and other organs of state; and contains a proposal to retain the current Presidency Council (a three-person office) until such time as the Federation Council is constituted (currently, the Presidency Council, considered by many to be the body best suited for resolving sectarian and ethnic disputes, is set to expire at the end of this legislative term and be replaced by a single President).

On the controversial matter of personal status (family law), the report provides that Iraqis “shall have the right to commit to the provisions of his religion and sect in his personal status and the personal status law shall ensure its regulating.” (Please excuse the rough translation). While in Baghdad a senior member of the CRC informed me that by explicitly mentioning the “personal status law,” the revised language is intended to alleviate concerns that the current Constitution allows Islamic law to override the existing secular code. Personally, I don’t see it. It might be the translation, but women’s rights leaders in Baghdad expressed to me great frustration that the revised text does nothing to protect women from what they perceive as inequality under some aspects of Islamic personal status law.

On citizenship the report takes a step backwards. Whereas the current Constitution makes clear that anyone born to an Iraqi father or mother is an Iraqi citizen the report replaces the “or” with an “and” — children born to one Iraqi parent are citizens only in accordance with future regulations.

But the real consequence of the document is in its treatment of the provisions concerning the relationship between the central and regional governments. The report adds several competencies to the exclusive and shared powers of the federal government and makes federal law supreme with regard to the critical matters of oil, natural gas, water, customs, and ports. It also makes the federal government responsible for collecting all oil and gas revenue (and then charges it with automatically and transparently distributing it proportionally among the provinces and regions), and removes the present/future distinction with regard to management of oil and gas reserves — the federal government “together” with the relevant regions and provinces would now manage all reserves. It also makes explicit the federal government’s right to use the military to maintain order and security within a region’s boundaries. And finally, the report clarifies that legislation called for in the Constitution is federal legislation.

These alterations to the balance of power between the central and regional governments are sure to provoke the Kurdistan Regional Government. In fact, the KRG already rejected most of these proposals when they were first presented in May 2007 as part of the CRC’s interim report. Over two years later the proposed amendments show no signs of compromise and have actually been revised in ways to further anger the Kurds (the interim report did not have a provision on the use of armed forces in the region).

The “half full” observation is the extent to which Shia and Sunni interests aligned during the constitutional review. Indeed, one would be hard pressed to find areas where the two do not share a common vision of the state. Unfortunately, this was the case in May 2007 as well. So instead of trumpeting the synergies between Sunni and Shia, one must read the CRC’s report with regret that the last two years were not used to bridge the gap between Arabs and Kurds.

While it is not known when (if) the Council of Representatives will consider the CRC’s final report (most predict it will not occur until after the national elections scheduled for 2010) it is certain that Kurdish politicians will attempt to block the amendments in parliament and if they fail there will call upon their residents of the Kurdistan region to reject them at referendum (a rejection by the three predominantly Kurdish provinces would alone be sufficient to prevent their passage). Such a rejection of the controversial amendments would mean a rejection of the uncontroversial ones as well. In other words, two and half years of constitutional revision will amount to nothing unless Iraq’s political leaders seriously take up the matters in the CRC’s report that go to the heart of the federal character of Iraq.


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