THE FEDERALISM AND THE FUTURE OF IRAQ

The nature and system of government in Iraq is responsible for most of its external and internal problems since its inception in 1921 and until the present time. A deficiency exists in the political and constitutional structure for Iraq since the first established constitution “Basic Law” of 1925 until the last constitution of 1970, characterized by excessive centralization and the rule of an individual especially since 1979 the year Saddam Hussein ascended to power.

Iraqi Kurdistan - Ten years of self-rule and future prospects
An International Conference
University of Southern Denmark, 30th November – 1st December 2002 in Odense, Denmark

Paper presented by
Munther Al Fadhal, PhD
Former Visiting professor of Middle Eastern law
International College of Law in London
Counsellor-at-law and human rights author
Stockholm, Sweden

INTRODUCTION

Principles of Federalism in Future Iraq:

The nature and system of government in Iraq is responsible for most of its external and internal problems since its inception in 1921 and until the present time. A deficiency exists in the political and constitutional structure for Iraq since the first established constitution “Basic Law” of 1925 until the last constitution of 1970, characterized by excessive centralization and the rule of an individual especially since 1979 the year Saddam Hussein ascended to power. This iron fist central authority contradicts with the establishment of a democratic society and civil society especially in a country like Iraq with a diverse ethnic and religious population and varying political parties and movements. As a result, the Kurdish population was subject to war crimes and the crime of genocide. Other ethnic groups were not spared from such crimes including the majority Arab Shiite.
In order to establish a democratic system, rule of the law and constitutional institutions it is necessary to change the type of government and nature of rule form a simple state based on centralization to a federal compound union, whereby the authorities are distributed among the regional governments and institutions. Such a set-up is compatible with Iraq’s diverse population and an introduction to resolve the Kurdish issue and to recognize their legitimate rights for which they have submitted huge sacrifices. Thus, the Kurds will have independence inside the Kurdish region, which is part of the one state of Iraq that will ensure peace, security and stability inside Iraq and outside of it. This would dispel fear of a break-up of Iraq and would emphasize the principles of democracy and freedom that cannot be obtained in a dictatorial system because federalism and democracy are interrelated.
Stability and peace cannot be secured in future federal Iraq without recognizing the following bases;

  1. Ensure respect for democratic freedoms such as freedom of opinion, expression, thoughts, assembling, belief, peaceful congregation and the likes.

  2. Ensure respect for transfer of power by peaceful means though the free and democratic elections.

  3. Respect for the principle of multi-political parties and for peaceful political opposition.

  4. Emphasize the separation of powers among the legislative, executive and judicial branches of government.

  5. Separation of state and religion.

  6. Maintain the independence of the judicial branch of government.

  7. Separate the military establishment from politics and party affiliation.

  8. Establish High federal constitutional court in charge of overseeing the application of law or the breach of law in light of the rule of law.

  9. Grant equal rights for women to that of man in rights and responsibilities, also secure the maintenance of child’s, handicapped and elderly rights.

  10. Ensure freedom of religious belief. Institute the principle of religious, ethnic and intellect tolerance. Respect for human rights in accordance to the international charter for human rights and other international declarations.


FIRST - THE KURDISH POSITION IN FUTURE IRAQ

The Kurdish position sees the solution to the Kurdish issue through their independence in managing the affairs of Kurdistan Region. The constitutional relationship between the Kurds and the Arabs ought to be regulated through a federal form of government after the simple form is dismantled and a compound federal union is established. This will ensure that the Kurds will manage the affairs of their region and participate in the political decision-making process of the central federal government based on the decentralization of authorities and policies.
The rest of the ethnic groups such as the Turkuman, Assyrian, and others enjoy full citizenship, parliamentary and judicial rights whether they lived in the Arabic regions or the Kurdish region. These rights include the use of their national language in special schools, establishing their political parties, publishing their own newspapers and fully representing and participating in the legislative, executive and judicial branches of government. These rights are regulated through the constitution and a special decree for regulating the rights and responsibilities of ethnic groups. These principles are declared in the draft presented by the Kurdish leadership.


SECOND - POLITICAL PARTIES, MOVEMENTS AND
INDEPENDENTS POSITION TO FEDERALISM

Iraqi political parties, movements and independents that participated in Salahuldeen Conference in 1992 adopted Federalism as a solution for the Kurdish issue, which has drained Iraq’s resources and affected peace and stability in the area. Moreover, many Iraqi political parties, movements and independents have openly declared the Federal option through their declarations, publications and announcements such as;

  1. Iraqi Communist Party.

  2. Supreme Council for the Islamic Revolution in Iraq.

  3. Iraqi National Coalition.

  4. Iraqi National Congress.

  5. Military Conference organized by the Military Coalition in July 2002.

  6. Free Iraq Council.

  7. Declaration for Iraqi Shiite.

  8. Many Independent Iraqi Political Figures.


THIRD - THE POSITION OF OTHER ETHNIC GROUPS
(TURKUMAN, ASSYRIAN AND OTHERS)

  1. the Position of the Turkuman; Distinction must be made between two parts of Turkuman; the first part represents the majority of Turkuman, live in peace and tolerance in Kurdistan, they are represented in the Kurdish Regional Parliament, participate in the Regional Government and enjoy full citizenship rights as mentioned above. The position of this group of Turkuman is clear and known; they respect the strong bind with Kurds, Arabs and Assyrian. They have real attachment to the soil of Iraq and have no problem with the Kurds enjoying Federalism against securing their citizenship rights. The second part represents a minority, are the Turkuman Front, which has strong ties to Turkey. This group demands self-independence within a large illegitimate geographical border.

  2. The Position of the Assyrian; this group is involved in a battle over historical identity among themselves. The Assyrian believe that they and the Chaldean are from the same ethnic origin while some Chaldean reject this notion of ethnic assimilation. This group live in the Kurdish Region and the Arabic Region. The ones in the Kurdish Region enjoy full citizenship rights similar to the Turkuman, while the ones in the Arabic Region suffer from dictatorship, which persecute all Iraqis of all ethnic backgrounds.

Risks and Hurdles;

  1. The Turkish Position; The objections made by Turkey through public announcements and the threat to enter and occupy Kurdistan-Iraq is based on the assumption that a Federal Kurdistan or a Kurdish State represents a danger to the national security of Turkey. There are grave internal problems with the Kurdish population inside Turkey whereby the Kurds human and national rights are abused. Moreover, Turkey demands ethnic rights for the Turkuman and is trying to find a self-government or a federal government for them despite the lack of legal basis for that.

  2. Some Iraqi Opposition; Some Iraqi Opposition parties may not accept the concept of Federalism presented by the Kurds as they see fit in light of their legitimate right for self-determination. The fear is that Federalism is the break-up of Iraq; therefore some of the Iraqi Opposition submits a different type of Federalism, which does not conform to Iraq’s society. Finally, no Iraqi Group is willing to sacrifice Federalism especially the ones that follow a democratic path.

  3. The Kurdish House; The rift inside the Kurdish house is preventing the Federalism for being applied. The last meeting between the two Kurdish Parties (October 2002), the KDP and the PUK is playing a major role in removing these rifts, helping establish Federalism and draw the new Iraq correctly.

  4. The struggle for Kurdish Kirkuk; which is inhabited by a majority Kurdish population (48%) as per the 1957 census.

Recommendations, Legal and Political Solutions;

  1. International Guarantees for Respecting and Applying Federalism; Any application for Federalism in future Iraq needs international guarantees to ensure stability, security and respect for the Kurdish choice in its relationship with the Arabic Regions and with the other minorities. These guarantees need to be presented by the USA to avoid breach in the form and structure of the Federal State of Iraq and the new civil rule. International guarantees shall dispel concern from all ethnics and religious groups in future Iraq.

  2. Internal Guarantees; is achieved through a declaration by the Iraqi Opposition for Federalism for the Kurdish People on Kurdistan Region, during their General Meeting scheduled for November 2002. The Federal choice needs to be part of the works of the next Transition Government in post Saddam Iraq in accordance to the proposed federal constitution for the state of Iraq.

  3. Solving the Kurdish Issue is Key to Solving the Iraqi Issue; through building democratic principles, respect for human rights and democratic institutions, recognition for all ethnic groups without discrimination based on origin, language, religion and others in accordance to the legal and constitutional rights in the new Iraq. Democracy is not the rule of the majority, but is the rule of all and the participation of all.

Based on the above prelude, the constitution needs to be based on a union among THREE regions; (Two Arabic Regions and One Kurdish Region):
- FIRST: Constitution for Federal Iraq
- SECOND: Constitution for Kurdistan Region
- THIRD: Constitution for Arabic Region in the South based on geography
- FOURTH: Constitution for Arabic Region in the Middle based on geography.

Naturally, the option for Federalism for Iraq is an application for the Kurdish people right for self-determination and thus the Kurdish people will decide the nature of the relationship with the Arabic Regions without the need to ask the Arabs through a referendum about their position in regards to Federalism as a future option, but to have a referendum for a draft permanent constitution for the Federal State of Iraq. Consequently separate referenda are needed for Regional Constitutions for each Region.

Legislative Authority: (Parliaments Required in Federal Iraq)
- FIRST - Central Federal Parliament (Legislative Federal Authority)
1. Representatives’ Council
2. Regional Councils
- SECOND - Local Parliament Elected in Kurdistan (Legislative Authority)
- THIRD - Local Parliament Elected in Arabic Region in the South
- FOURTH - Local Parliament Elected in Arabic Region in the Middle

Executive Authority for Central Federal State:
- FIRST- President of the State (Ceremonial Position for a 4-year term
subject to one time extension).
- SECOND- Council of Ministers (Upper Executive Authority)

Upper Federal Constitutional Court (based in Baghdad) looks into specific cases such as;
- The elected President shall read the oath of office in front of the head and
committee of this court.
- Look into and take resolutions in regards to conflicts among the regions or between
a region(s) and the Federal government.

Authority’s Borders:
The borders between the Kurdish Region and the Arabic Regions shall conform to the proposal submitted by the Kurdish leadership (Draft for the Constitution for the Federal State of Iraq) – The base for the said borders is geographic.

Right for Other Ethnics (Turkuman, Assyrian and others)
Their rights are guaranteed through the citizenship rights in accordance to the constitution, law and international guarantees referred to above.

Responsibilities of the Federal Government;

  1. Draw the foreign policy and diplomatic and consulate representation.

  2. Sign international treaties and agreements.

  3. Defence and armed forces whereas the army is for defence and not offence, joining the military needs to be voluntary and not compulsory for both genders.

  4. Print the national currency plan the bank reserve policy and execute federal loans.

  5. Economic and development planning.

  6. Manage the General Balance of Payment.

  7. General Federal Security.

  8. Citizenship, immigration and residency for foreign nationals.

  9. Power and national resources.


THE ADVANTAGES TO A FEDERAL DEMOCRATIC REPUBLIC

There are many advantages to a federal democratic republic especially in Iraq where we can find multi-Ethnics, different religions and different opinions. Federalism does not exist in a dictator regime. In Iraq there are two main nationalities (Arabs and Kurds) besides the other minorities such as (Turkuman, Assyrian, Arman).
Federalism should therefore become a corner stone of the new Iraqi body legal-politics. Federalism also abolishes the discrimination between the different nationalities in Iraq, distribute the equity and justice and respect human rights. It can confirm the participation in authorities between regions governments. Therefore federalism has many advantages in countries, which has different nationalities and religions. It is the best solution for the Iraqi problems especially the conflicts between Iraqi government and the Kurd for several decades. The most important advantage to a federalism democratic republic is to keep the unity of the Iraqi state.

Which civil and political rights should be enumerated in Iraq’s future constitution?
The civil rights that should be enumerated in Iraq’s future constitution are:

  1. The life right.

  2. The right of the physical safety.

  3. The thinking and the expression freedom.

  4. The right of the religious belief and the non-religious belief and the right of changing religious belief.

  5. The agreement freedom.

  6. The move and travel right without restrictions.

  7. The right of ownership and non-confiscation of properties.

  8. Each person should have a nationality. And should not be dropped does from him.

  9. The correspondences and communications secrecy right without any espionage from any authority.

  10. And many other rights which are mentioned in the international declaration of human rights.

Which women’s rights should be highlighted in the future of Iraq?
The women’s rights that should be highlighted are:

  1. The complete equality in the rights and the duties with the man.

  2. The work right by equal wages with the man.

  3. The right of equal chances between the man and the woman.

  4. The body protection right from any violence treatment, rape crimes and circumcision.

  5. The Right of husband selection.

  6. Protection from the honour killing.

  7. Protection from the polygamy.

  8. The kindergarten rights.

  9. The Right of free travel and movement without limits (without Mohram).

  10. The right of undertaking of all of the political positions and the judicial and administrative one.

  11. The right of voting and candidature.

  12. Protection Right from the coercion on the marriage. And the right of non-marriage before the maturity.

  13. The abortion Right.

  14. Law legislation about sexual harassment is needed.


Biography: Munther al Fadhal, PhD

  • 2001 - Until now - Visiting professor of Middle Eastern laws at the International College of Law - London.

  • 1997 - Until now - Counsellor at law and human rights author / Stockholm-Sweden.

  • Currently he is also serving as a member of the U.S. State Department working group on the future of Iraq for which he has drafted an Iraqi constitution.

  • He has taught civil law at numerous universities including:
    - 1979 - 1982 and 1987-1991Associate professor of private law at the University of Baghdad-College of law.
    - 1979 - 1981 - Expert of Iraqi laws at the Ministry of justice and lecturer of law at judicial institute - Iraq.
    - 1982 - 1985 - Associate professor of private law - College of law-University of Annaba in Algeria.
    - 1992 - 1993 - Associate professor of Civil law The University of Amman – Jordan (Vice dean of the college of law).
    - 1993 - 1997 - University of Al-Zaytoonah in Amman - Jordan and (Head of public and private law Departments).

  • He is the author of many law books and articles about the democracy, federalism, civil society and the future of Iraq, published in Arabic, Swedish, and English.

  • He previously and currently supervisor of many PhD’s and master theses in Middle Eastern laws.



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