Blog of the International Journal of Constitutional Law

Iraq’s Constitutional Review Committee Delivers its Final Report to Parliament

The Iraq Constitutional Review Committee (CRC) submitted its final report to the Iraq Parliament on July 27 with little notice or fanfare – over two and half years after it began its constitutionally mandated comprehensive review, the report comes in at 68 pages (in English) and represents dozens of proposed amendments to the 2005 Constitution. It is now up to the Council of Representatives (CoR) to vote on the package. If it passes it goes to national referendum.

The report contains a number of important substantive recommendations that should enjoy widespread support, including:

• fleshing out the form and character of Iraq’s second chamber of Parliament, the Federation Council;
• addressing 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);
• providing 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;”
• providing greater clarity on the relationship between independent commissions (such as a Human Rights Commission, an Independent Electoral Commission, and a Commission on Public Integrity) and other organs of state; and
• retaining the current Presidency Council (a three-person office of the president) 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 Iraqi 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 its treatment of the provisions concerning the relationship between the central and regional governments. The report takes the notable step of adding several competencies to the exclusive powers of the federal government. It also makes explicit the federal government’s right to use the military to maintain order and security within a region’s boundaries. And the report clarifies that implementing legislation called for in the Constitution is federal and not regional legislation.

However, the report retreats from a series of important amendments that appeared in a draft as recently as this past June. The June draft revised the treatment of Iraq’s natural resources (oil and gas) empowering the federal government with the responsibility of collecting all oil and gas revenue (and then charging it with automatically and transparently distributing it proportionally among the provinces and regions), and making the federal government “together” with the relevant regions and provinces responsible for managing all reserves (under the current Constitution the federal government is responsible for managing on “present fields” – managing non-existing fields is left to regions. It also made federal law supreme to regional law with regard to the critical matters of oil, natural gas, water, customs, and ports. Instead of these proposed changes the report sheepishly notes, “Articles 111-115 [the articles relating to the distribution of powers and natural resources] are still under discussion.”

The CRC removed these recommendations because of the controversy they were sure to cause with the Kurdistan Regional Government (KRG). In fact, the KRG had already rejected these recommendations when they were first presented in May 2007 as part of the CRC’s interim report. What is confusing is why the CRC removed some controversial proposals but kept others – the additional exclusive federal powers, for example, were also contained in the interim agreement and rejected by the Kurds. Even more curious is that the final report contains new provisions sure to inflame the Kurds as much as those that were removed – the interim report did not have a provision on the use of armed forces in the region.

The “half full” reflection on the constitutional review is the extent to which Shia and Sunni interests aligned. 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. This failure is not surprising – such is the political climate in Iraq today where rhetoric reigns and political paralysis is the norm. But it is still regrettable.

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 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 agreed upon ones as well. In other words, two and half years of constitutional revision could 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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