MESOP MIDEAST WATCH : The Iraqi Constitution – A Scapegoat for Corruption 

Washington Kurdish Institute – By: Dr. Saman Shali August 10, 2022

The fall of the al Ba’ath regime and its dictator Saddam Hussein provided the opportunity for Iraq to rebuild itself as a new state. A hopeful notion for most of its people, including the Kurds.

Iraq faced many challenges, mainly security, but politically the Shia, the Kurds, and some Sunni reached a consensus and drafted a constitution that was later approved in 2005 by 79% of constituents. The constitution is not perfect by any means; it has several issues and vague articles. However, it was the best product that could be reached at the time to converge the decades of disagreements among the regions diverse ethnic and religious groups and overcome the complications of al Ba’ath regime’s rulings.

Since the most recent Iraqi elections, held on October 10, 2021, the country has been faced with turmoil as two major coalitions are duel to form a government. The first coalition led by the Shia Cleric Muqtada al Sadr, allied with the Kurdistan Democratic Party (KDP) and a Sunni party led by Speaker Mohammed al Halbousi. However, al Sadr withdrew from the parliament after failing to form a majority government: a condition he did not concede to his rivals in the Coordination Framework, an Iranian-backed coalition consisting of the Shia parties.

Unable to form his majority government, and despite enjoying 73 seats in the parliament alongside nearly 80 seats by his Kurdish and Sunni allies, al Sadr withdrew his lawmakers from the process. Indeed, the massive resignation by Sardist lawmakers resulted in a gain for the Coordination Framework, which did not hesitate to nominate a prime minister and launch negotiations with Kurds and Sunni to form a government. As the Coordination Framework nominated Mohammed Shia’ al-Sudani, al Sadr declared a “revolution,” and his supporters took the street across the country, occupying the parliament building, preventing the formation of the new government led by the Coordination Framework.In a recent appearance, Al Sadrst called for reforms, the demolition of the current parliament, and snap elections. However, alongside al Sadr’s calls are odd voices, especially among the “Imtidad” bloc, calling for the “system change” and demolition of the constitution.

Since 2003, corruption has been a real issue Iraqis have struggled with, and many of the younger generation lawmakers blame the way the constitution is allocating power. For example, several lawmakers of the independent bloc are calling for the return to a presidential system, which other criticize as a recipe for creating a new dictatorship.

Baghdad-Erbil disputes – I’ll see you in court

The disputed territories remain a major point of contention between Erbil and Baghdad. Baghdad lacks the ability to implement article 140 of Iraq’s constitution, which calls for the normalization of the areas fusing Arabization under the Ba’ath regime. Moreover, the federal government in Baghdad has not yet allocated a budget for the Peshmerga forces, which is a clear violation of the constitution. Likewise, the political parties failed to adopt an oil and gas law to end the deadlock regarding its production in the Kurdistan Region. Instead, the government in Baghdad took advantage of the international courts to target energy companies working in the Kurdistan Region.

Since 2021, political parties in Iraq began referring more and more to the Supreme Court, to settle disputes. The court has issued several rulings, including the “illegality” of the Kurdistan Regional Government’s (KRG) oil production and sale. However, the Supreme Court itself has was not established by legislation as article 92 of the constitution calls for it. The existing court is from the transitional period from June 2004 to October 15, 2005. In other words, the current Supreme Court is unconstitutional.

Another way the Iraqi government and the political parties overcome their disputes with the KRG is the creation of a “federation council” to represent regions and provinces in Baghdad. Article 65 of the constitution class two-thirds of the parliament voted to pass the law. However, since 2005 no government or party has pushed for it.

The federal government also neglected to compensate the victims of the massacres and genocides by the former regime against the Kurds, alongside support for victims of more recent massacres at the hands of ISIS (Da’esh) including Yazidi, Christians, and other minority groups. The inability to implement already agreed to relief efforts, such as those outlined in the passing of the Yazidi Female Survivors Law, have ignored a good opportunity for Baghdad to revitalize confidence in their government. The number of diverse civil society organizations working together in calling for humanitarian support is indeed unheard of in the region and a wise government would seize this opportunity to build unity.

The Iraqis should have supported the thousands of Kurdish families who have long suffered the atrocities by the former regime, including mass displacement and destruction of their villages and towns. In contrast, the Iraqi government continued its Arabization policies in the disputed territories” and undermined the Kurdish rights.

Iraq is facing a profound problem imposed by militias of the political parties. The creation of the Popular Mobilization Units (PMU) was mainly to fight ISIS terrorism when Iraq’s military deteriorated. However, Iraq currently has dozens of armed groups backed by regional powers, used to launch attacks and become a tool for destabilization and civil war. The Iraqi constitution forbids militias as article 9 reads, “The formation of military militias outside the framework of the armed forces is prohibited.” In contrast, the Iraqi government did not legislate a law, making the PMUs an official entity outside the Iraqi armed forces.

Additionally, the Iraqi government has stalled in adopting a law for article 80, which calls for approval for top military officials and diplomatic positions in the parliament. Likewise, article 84 clearly defines the “duties and authorities of the security institutions and the National Intelligence Service.”

The core issue in Iraq is the inability or unwillingness to implement the constitution, not the constitution itself. Since 2005, consecutive cabinets have failed to implement the articles of the constitution. On the contrary, they delayed the issues and accepted the status quo, which deepened the disagreements to a dangerous level that could spark a civil war.

So, what’s the take-away? Iraq has the scaffolding it needs to build a stable, unique society, inclusive to all its parts. The constitution should not be tossed aside. The solution in Iraq is to implement the constitution and all the good legislation that is passed under its governing spirit. If the next government takes practical steps to implement the articles, especially those that address Baghdad-Erbil disputes, containing militias, reconciliation to non-Arab groups and peaceful transitions of power, Iraq will overcome its issues. Indeed, the first Iraqi Government to do so will have the eyes of the world upon it – for the better.

Finally, Iraq is desperate for peace with all countries in the region without exception to ask for their help to build Iraq again. Peace in Iraq will bring stability and security to the region.