–Hassan Mustafa Hussein, Ph.D. in Constitutional law, Soran University, KRI
August 1 is observed worldwide as World Constitution Day. On such significant occasions, it is common for major civilized nations to celebrate their greatest political achievements, usually reflected in a written or other form of constitution. This event, which may involve many historical reflections, promotes sustainable awareness and civic literacy at both collective and individual levels. It embodies the ultimate goal of fostering democratic values, good governance, liberty, the rule of law, and cultural diversity, which originate and flow into society to be invested in. As a result, the dominance of these principles will eventually be codified and preserved through constitutions.[1]
Related to this, an academician in the political philosophy of the constitution has argued that “The Constitution is one of the great achievements of political philosophy; and it may be the only political achievement of philosophy in our society.“[2] Influenced by pre-modern political thought, social contract theories, and Enlightenment ideals, the founding fathers introduced constitutions that illuminated the path for other nations.[3] These constitutional documents served as blueprints for political organization grounded in justice, the rule of law, and the common good. They became influential models for emerging democracies across the world.
Although U.S. constitutional thought has influenced many sovereign states and regions operating within federal systems—primarily through the adoption of national or subnational constitutions—this political framework has yet to be fully embraced by Kurdish society, which continues to face significant obstacles in reaching this critical stage of constitutional development.
Nearly three decades have passed since the establishment of de facto Kurdish self-governance in the Kurdistan Region of Iraq. The legal foundation for this autonomy was laid with Election Act No. 1 of 1992, enacted on April 8, 1992, following a political agreement among the Kurdistan Front—a coalition of diverse parties operating under the banner of Baray Kurdistane. This legislation served as the basis for the establishment of legislative, executive, and judicial institutions that functioned in a de facto capacity until the adoption of Iraq’s permeant constitution in 2005.
In 2002, the Kurdistan Parliament established a committee composed of ten members and legal experts to draft a constitution for the Kurdistan Region. On November 7, 2002, the committee produced a draft consisting of 78 articles.[4] However, the draft was not approved due to political instability in Iraq and external pressure from neighboring countries, particularly concerning the inclusion of Kirkuk as the capital of the Kurdistan Region. Additionally, the absence of a clear vision and a lack of expertise in the political philosophy of constitutionalism contributed to the failure of the draft’s adoption. Following the collapse of the dictatorial regime in Iraq in 2003, and amid efforts to rewrite the permanent Iraqi constitution, the 2002 draft constitution of the KRI became a historical footnote. However, the absence of a social contract—one that reflects the general will of the people and fosters shared political and social memory among the diverse groups in the Kurdistan Region—has allowed political power to persist in the form of traditional authority and partocracy. This partocratic model has triggered numerous political crises, including the failure to fully institutionalize the legislative, executive and Judiciary branches of the Kurdistan Region (KRI).
With the adoption of the 2005 Iraqi Constitution, a new political era began for both Iraq and the Kurdistan Region. Influenced by the liberal U.S. constitutional model, the 2005 Constitution introduced principles of federalism, separation of powers, and the recognition of diversity.[5]
Crucially, it granted the Kurdistan Region constitutional legitimacy and acknowledged its existing authorities—legislative, executive, and judicial—along with the civil and political rights of the Kurdish people as a main community in Iraq. This marked a historic opportunity to transform the Kurdistan Region from a de facto to a de jure constitutional entity.
Article 117 (1) of the 2005 Iraqi Constitution affirms: “This Constitution, upon coming into force, shall recognize the region of Kurdistan, along with its existing authorities, as a federal region.” Furthermore, Article 120 authorizes regions to adopt their own constitutions: “Each region shall adopt its own constitution that defines the structure of powers of the region, its authorities, and the mechanisms for exercising such authorities, provided that it does not contradict this Constitution.”[6]
In 2009, a new constitutional committee—comprising experts from both within the Kurdistan Parliament and abroad—was convened. A second draft constitution was prepared, consisting of 122 articles, and based on the constitutional rights of regions as outlined article 120 in the 2005 Permanent Iraqi Constitution. Although this draft was approved by Parliament[7], persistent political disagreements among the major parties—particularly regarding the nature of the political system, whether semi-presidential or parliamentary—prevented it from being submitted to a popular referendum. As a result, the draft was effectively shelved, representing yet another unfulfilled constitutional initiative. This impasse reflects an enduring lack of political will among the ruling parties, who fear that constitutional reform could curtail entrenched familial rule and lead to the institutionalization of democratic governance.
Despite the demands of the people and the intellectual elite of Kurdish society, as well as the international desire for reform, institutionalization of power and the establishment of a constitutional democratic system, the Kurdistan Region continues to operate without a written Subnational-Constitution. Governance remains largely based on laws passed by the Kurdistan Parliament, which lacks a higher constitutional framework. This has given rise to numerous unresolved political challenges:
- Weak Effectiveness of the Kurdistan Parliament: As a democratic institution representing the will of the people, the Parliament should play a central role in legislative oversight. However, it is frequently overshadowed by dominant political parties and the executive branch, undermining its independence and oversight capacity.
- Lack of a Periodic Electoral Culture: In the absence of a binding constitution mandating timely elections and legal transitions of power, parliamentary terms are often extended, diminishing accountability and democratic renewal.
- Inadequate Civilian Control of Armed Forces: Civilian control or constitutional control of the military is a cornerstone of constitutional democracy. Yet in the Kurdistan Region, security forces remain divided between the two major ruling parties. While efforts have been made to unify them, full civilian and constitutional oversight remains elusive. A written constitution could play a vital role in depersonalizing governance and ensuring institutional, civilian control of security forces.
- Absence of Judicial Oversight and Constitutional Adjudication: Constitutional government relies on the separation of powers and a system of checks and balances, a principle advanced by Montesquieu and enshrined by many democratic systems. However, the Kurdistan Region lacks a constitutional court to review legislation or executive actions for conformity with a foundational legal document, thereby weakening the rule of law and legal certainty.
To conclude, on this World Constitution Day, I want to remind the political parties in the region that it is imperative to reflect on the foundational importance of a written constitution in securing democratic governance, institutional accountability, and the rule of law, without which the survival of the Region is doomed, let alone its growth.
Suggested citation: Hassan Mustafa Hussein, Three Decades Without a Social Contract: A Call for Constitutional Adoption in the Kurdistan Region of Iraq, Int’l J. Const. L. Blog, Aug. 3, 2025, at: http://www.iconnectblog.com/three-decades-without-a-social-contract-a-call-for-constitutional-adoption-in-the-kurdistan-region-of-iraq
[1] World Constitution Day Website, https://worldconstitutionday.org, accessed 26 July 2025.
[2] Donald H Regan, ‘Philosophy and the Constitution’ (1987) 32 Law Quadrangle (formerly Law Quad Notes), 33.
[3] Andrew J Reck, “The Philosophical Background of the American Constitutions” (Cambridge University Press 2010) 273–93.
[4] The process of writing the Kurdistan Regional Constitution, Station 1, “The first proposed draft constitution, Decision No. 26 of 2002”, https://legislation.krd/constitution. accessed 2 August 2025.
[5] Hassan Mustafa Hussein, “The 2023 International Review of Constitutional Reform”: Iraq (30 September 2024) https://ssrn.com/abstract=5085956 or http://dx.doi.org/10.2139/ssrn.5085956 accessed 26 July 2025.
[6] Iraqi Constitution 2005, art 117(1) and art 120.
[7] The process of writing the Kurdistan Regional Constitution, Station 2, “Draft Constitution of the Kurdistan Region of Iraq 2009”, https://legislation.krd/constitution. accessed 2 August 2025.
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