The constitution is more than simply a
piece of paper
By Bashdar Ismaeel,
longtime contributing writer for ekurd.net
In 2003, after the downfall of Saddam Hussein,
Iraqis had an historic opportunity to rebuild their
country, national identity and basis for
co-existence, but above all placate this in a broad
and inclusive constitution.
The Transitive Administrative Law of 2004 was
followed by a new constitution in October 2005, on
the back of months of grueling negotiations, intense
jockeying and fervent pressure from the U.S., the
result of the arduous tasks of satisfying Iraq's
vast socio-ethnic mosaic.
Significance of a
Just why is a constitution perceived with so much
significance? A constitution is a set of decrees,
principles and ideals that govern a country.
Bashdar Pusho Ismaeel, senior UK Editor.
the blueprint of the governance of the country and
the essential building block for all political,
democratic and legislative particles that form a
part of that country. As the political heartbeat or
DNA of the governance of any country, the
constitution is the hallmark and distinction of a
country. In other words, if any aspect of a
constitution is denied or overridden then the basis
for the existence of the political and official
governing entity in that country is also denied.
For this reason, across the Middle East, from Egypt
to Libya, Syria and Turkey, real reform is
synonymous with popular demands for fundamental
changes to the respective constitutions. For
example, the real acceptance of the Kurds in Turkey
is not through electoral manifestos or mere
political rhetoric, it can only be achieved by
changing the legal blueprint of that country.
Clear roadmaps in place
For all its critics, the Iraqi Constitution is
comprehensive and provides a roadmap for many of the
major aspects that continue to fuel dispute and
animosity today. There is a guideline for the extent
of federal powers, regional authority, and powers
afforded to executive entities, the sharing and
development of Iraq's immense hydrocarbons and,
above all else, dealing with the issues of disputed
Article 140 clearly outlines time lines, formulas
and responsibility for resolving the status of
Kirkuk and other associated disputed territories.
This made the basis and the method for resolving the
Kirkuk dilemma a clear building block of the new
Iraq. It is contained in the constitution of the
country, the essential framework of its existence,
so there can be no clearer argument for the legality
and prominence placed on this issue.
This makes the reasons behind the non-implementation
of a legal, valid and key component of the make up
of the country all the more pertinent.
Simply Arab factions, particularly the Sunnis and
neighboring powers, have put more obstacles than
solutions to prevent these articles from being
implemented and thwart what they see as a strategic
strengthening of Kurdish hands. It is now almost six
years since the constitution was voted in, and
clearly the appetite for resolving Kirkuk is as
lacking as ever.
You may dislike or disagree with articles of the
constitution, but this doesn't make the articles any
less legal, clear or enshrined in the make up of the
Baghdad foot-dragging over Article 140 was designed
to ensure the deadline for its implementation by
Dec. 31, 2007 would be missed. Yet the same entities
that prevented its implementation, now, ironically,
complain that the article is void as the deadline
While the Kurds have patiently persisted with the
status quo, the Kurdistan Regional Government would
be unwise to let constitutional articles fester
indefinitely and see articles that potentially
benefit them to be at a constant source of
obstruction by the Arab and Turkmen sections of the
Limiting of Kurdish gains has been the same theme
for the lack of a national hydrocarbon law in Iraq
and the successive postponement of the census.
The fear of approving Kurdish oil contracts and
resolving the status of disputed territories is that
Baghdad would lose the little sway it has remaining
over Kurdistan and Kurdistan could develop economic,
foreign relations and politics unilaterally.
However, the breaking of the constitution is akin to
cutting an artery to the heart. Iraq currently has a
voluntary union, underpinned by constitutional
principles. Without these, the legal basis for tying
all parts of Iraq is effectively eroded.
Once the deadline for the implementation of Article
140 inevitably passed at the end of 2007, and
without much progress, the UN was tasked with the
responsibility of diffusing tensions, or in the
words of former U.N. Special Envoy to Iraq, Steffan
di Mistura, "stopping the ticking time bomb."
More than three years later, the U.S. and U.N.
continue to highlight the dangers that Kirkuk entail
to Iraqis future but their commitment has been
lacking in breaking the deadlock. The U.N., in
particular, was tasked to look at solutions and
alternatives to resolving disputed territories. The
continued insistence of an international body to
bypass a country's constitution is remarkable. The
mechanism for resolving the status of Kirkuk has
long been decided. Ultimately, like any true
democracy, it's the people that should decide their
fate, not Ankara, Baghdad, the U.N. or the like.
With the Kurdistan government growing increasingly
tired and frustrated, top Kurdish leaders have
recently warned of the dangers of any bypassing of
Kurdistan Region President Massoud Barzani recently
stated, "If this article is dead, it means the
constitution is dead. And if the constitution is
dead, it means Iraq is finished." Such similar
sentiments were echoed by Nechirvan Barzani and
Kurdistan Parliament Speaker Kamal Kirkuki in recent
Successive Kurdish warnings must be matched with key
time lines and actions. Waiting for Baghdad and
regional powers to bolsters their aims and
proactively resolve issues that favor them will only
end in disappointment. If the constitution is
ignored by Baghdad, then the very foundations of the
state are in turn ignored.
The Kurds have been persistently pressured by
Washington and the U.N., among others, to
compromise. While 250,000 Kurds were kicked and
beaten without remorse from their historical homes,
"compromise" was not a word uttered by Baathist
forces. Now those same Kurds,www.ekurd.netwishing
to return home, are been told their legally
enshrined demands constitute overreaching and they
For the Kurds, this is a historical juncture. This
is a chance to correct the wrongs of the past in a
democratic and legal manner. If Kurds were unwilling
to compromise in 1975 over Kirkuk, then any deal in
the "new" Iraq of 2011 not involving its rightful
return would represent a huge setback.
Dispute over oil contracts
The issue over Kirkuk has only been matched by the
highly contentious disputes over oil sharing and the
rights of regional administrations to develop their
own oil fields. The Kurdistan Region has signed more
than 35 Production Sharing Agreements and Production
Sharing Contracts with foreign oil exploration
companies in recent years in what they deem as a
natural right under the constitution. This has been
hotly contested by Baghdad and particularly former
Oil Minister Hussein Shahristani who has frequently
labeled such deals as illegal.
Only recently has the deadlock been broken, with
Baghdad endorsing the oil contracts and authorizing
limited exports through Iraqi national pipelines.
However, the bottom line remains that Baghdad does
not want to see the Kurds drive on unhindered with
their own national program. The recent pact by
Shahristani with the EU to export gas through the
southern corridor to Kurdish surprise is testament
to this. Kurdistan was long earmarked as a pivot to
the proposed Nabucco pipeline in the north, which
would have guaranteed it strategic standing and
Simmering political tension
The 19 post-electoral demands of the Kurds were
explicitly accepted as a condition for their support
of the new government. Furthermore, a number of
other critical points were agreed between Kurds,
Shiites and Sunnis that allowed several months of
bickering and jockeying to end.
However, the problem in Iraq is that often the
agreements are not worth the paper they are printed
on. The lack of implementation of the Erbil
agreement of last autumn, has led to entrenched
camps of Iyad Allawi and Nuri al-Maliki, with
relations all but beyond repair. Key points in the
agreement including the formation of Higher
Strategic Policies Council that was to be headed by
Allawi and the naming of key ministries has
continued to falter.
Recent heated exchanges between Allawi and Maliki
underpin the common mistrust and animosity that
continues to blight the new Iraq. Allawi accused
Maliki of being "a liar, hypocrite and misleading,"
who came to power with "Iranian support," in
retaliation for the "State of Law of Maliki," aiming
to reprimand Allawi for abstaining from
The labored progress in Baghdad and the ongoing
sectarian battles that impinge progress is all the
more reason for Kurdistan not to wait, to be held
back and destabilized by the south, but to continue
in the interests of Kurds and Kurdistan unabated.
First Published On: Kurdish Globe
Other Primary Sources of Republication: eKurd.net,
Bashdar Pusho Ismaeel is a London-based freelance
writer and analyst,
contributing writer for ekurd.net website.
Ismaeel whose primary focus and
expertise is on the Kurds, Iraq and Middle Eastern
current affairs. The main focus of his writing is to
promote peace, justice and increase awareness of the
diversity, suffering and at times explosive mix in
Iraq and the Middle East.
Most recently he has produced work for the
Washington Examiner, Asian Times, The Epoch Times,
Asia News, The Daily Star (Lebanon), Kurdish Globe,
Hewler Post, Kurdistan Regional Government (KRG), KurdishMedia, PUK Online and OnlineOpinion.
He has achieved seminar recommended readings for Le
High University (Pennsylvania) and Massachusetts
Institute of Technology. His work has been
republished extensively elsewhere on the Internet.
You may reach the author via email at:
, Bashdar's website
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