QUESTIONS & ANSWERS : Kurdistan Region’s Draft Constitution / WHO WANTS WHAT ?

11. 6. 2013 – MESOP & KURDISTAN INSIGHT – Kurdistan Region President Barzani, MPs & Speaker sworn into office before an audience that included Iraqi President Jalal Talabani at the Erbil Convention Centre, 20 August 2009, two months after the approval of the draft constitution by the previous parliament. The fate of Kurdistan Region’s draft constitution has been dominating the political scene for some months now, triggering the deepest political controversy and a first major rift between the two ruling parties. But it was not all unexpected, as numerous key matters hinge on this important document, chiefly the political career of the regional president.

The contentious draft constitution of the semi autonomous region was approved by an outright parliamentary majority in 2009; except that was weeks before the birth of the opposition Gorran (Change) Movement.

Meanwhile, a power-sharing deal between the two ruling parties signed in 2007 has been called for a full review since the charter was approved in parliament. And at the heart of the disputes between the two allies now lies the draft constitution, which rather than becoming a uniting force, it has evolved into what some labelled a “political time bomb”.

The major political parties are divided into two camps over the constitution: those wanting to recall it to parliament for amendment; and those calling for an immediate referendum on it – with any possible amendments postponed until after the vote.

The opponents of the constitution argue that the current draft will establish a presidential system, giving excessive powers to the president, regardless of the charter’s description of the region’s system as parliamentary. And it is only with the ratification of the constitution that Massoud Barzani will be able to run for another term.

The constitution needs to be ratified in a referendum before it takes effect, but it is unlikely for this to happen any time soon, at least not before 30 June, when the deadline for the registration of presidential candidates is due to expire – as per an announcement by the Iraqi Independent High Electoral Commission (IHEC). Normally, the IHEC needs months to prepare for an event such as referendum. Resignations will begin today, 11 June.

The opposition groups, meanwhile, are due to decide on a presidential candidate by 22 June, officials said.

Who wants what?

The four parliamentary opposition parties – the Change Movement, the Kurdistan Islamic Union, the Kurdistan Islamic Group and the Kurdistan Future Party – insist on amending the draft constitution before it is put to a vote.

Kurdistan Region President Massoud Barzani’s Kurdistan Democratic Party (KDP) wants a referendum on the current draft.

However, the KDP’s coalition partner, the Patriotic Union of Kurdistan (PUK), has taken an interesting position by simply calling for a “consensus”. While – like the opposition – several leading PUK figures called for a direct parliamentary amendment, the party’s numerous official statements on the matter stuck to the use of national consensus.

Why is the referendum being mooted now?

This is intriguing.

The current parliament and government had nearly four years, the entire lifespan of both bodies, to tackle this.

One theory connects the timing with the presidential elections, which is due to take place simultaneously with the parliamentary poll on 21 September.

Incumbent Kurdistan Region President Massoud Barzani has already served two terms and therefore is not eligible to stand again according to current laws – but his supporters have argued that the law is open to interpretation.

This constitution – if approved – gives the 66-year-old Barzani a chance to be re-elected for a further two terms, as his previous times in office will not be counted. Although this possibility has also been contested by the opposition.

How did we get here?

We can identify three major developments.

First: The three opposition parties won 35 seats in the last elections, the Change Movement (25 seats), the Kurdistan Islamic Union (six) and the Kurdistan Islamic Group (four). The joint KDP-PUK bloc won 59 seats, down from 75 in the previous parliament. The new outspoken opposition has consistently called for the amendment of the constitution as well as for other reforms.

Second: The amendment of the constitution was one of the key demands of the anti-government protests in Sulaymaniyah lasting from mid February to mid April 2011. Under pressure from the protests, which were compared by some to government-toppling revolts in the Middle East, the regional parliament in March 2011 issued a decision agreeing to amend the constitution. The decision was not implemented.

Third: Voices of dissent within the PUK, both at grassroots and leadership levels, started to rise against the constitution, labelling it as “undemocratic”, and believing that it strengthens the KDP at the expense of the PUK. This triggered a kind of “agreement” between PUK leader Jalal Talabani and his Gorran counterpart Nawshirwan Mustafa in September 2012. The two issued a memorandum calling for a raft of reforms, including an amendment to the constitution. However, the memorandum has not been pushed forward, partly because Talabani was taken ill a few months later after suffering a stroke and he continues to receive treatment in Germany. In his absence, the divided PUK, has been dithering as it does not want to upset its ally, the KDP, but also seems unwilling to back it on this issue. Nevertheless, senior KDP officials, including its spokesman, have engaged in somewhat heated exchanges with PUK officials over the matter — and it is the first time the two allies take their issues public.

How was the constitution drafted?

The previous Kurdistan Region parliament approved it in controversial circumstances in June 2009 with 96 MPs votes of a total attendance of 97. There are 111 MPs in the parliament.

This happened at a time when the KDP and the PUK dominated the parliament with 75 MPs and there were no opposition parties in the house.

The draft bill was also approved after the parliament completed its tenure.

Gorran, which dented the ruling parties’ duopoly on its debut elections in July 2009, came to the scene at the time the draft was being discussed. A call by the group and leading civil society organizations and intellectuals to postpone the vote on the draft to the next parliament was not heeded.

What do the two camps say?

The opposition believes that the Kurdistan Region’s political system must be parliamentary, as is Iraq’s. According to the current draft, the president will act as the commander in chief of the region’s armed forces (Kurdish Peshmerga); the top security agency reports to him; he is elected by a popular vote, rather than in parliament. They argue that a strong parliamentary system is more suited to the region’s fledgling democracy and that the president should be accountable to parliament. They claim that the constitution is “tailored” to Barzani, whose son Masrur heads the region’s top security and intelligence organization, the National Security Council, which was established in 2012.

The KDP says that full consultation was made when the constitution was written, in a process that lasted seven years. The party maintains that the bill has gone through all its legal stages, and won an overwhelming majority in parliament and all the key political parties agreed on it. It has accused the opponents of the constitution of depriving the public of having a say in the debate by refusing to agree to a referendum. It has said that the constitution can be amended after its adoption.

What happens next?

It is not clear. But the opposition is claiming that Massoud Barzani will not settle for anything less than a chance to be re-elected, an allegation Barzani has denied, although his party officials have repeatedly made it clear that the president cannot abandon the post at the peak of his success and after all the achievements he had secured for the nascent region, including his success in placing the Kurdish oil industry on the world energy map – seen as a major factor for Kurds’ independence.

However, while Barzani is calling for a referendum, his opponents have said that the decision to put the document to the vote is not within the president’s powers. The opposition camp say that the parliament (headed by a PUK official) and the government (headed by KDP deputy leader Nechirvan Barzani) are responsible for setting a date for the referendum. Apparently, a difference in the Arabic and Kurdish versions of the constitution has caused this final disputation.

For now, the clock is ticking as the parties get ready for the September’s parliamentary elections, but whether a presidential election will also be taking place seems heavily dependent on the fate of the charter.