Time for Iraq to Activate its Federation Council!

The political power struggle in Baghdad has significantly escalated since the last U.S. troops withdrew in December 2011, with Prime Minister Nouri al-Maliki slowly abandoning the principle of a unity government that gives all stakeholders a share of power and instead trying to consolidate power in his own hands.  The situation has deteriorated so much that in a recent interview with the Associated Press the president of Iraq’s self-rule Kurdish region (Massoud Barzani) demanded that Shiite leaders “agree on sharing power with their political opponents by September or else the Kurds could consider breaking away from Baghdad.”  Tony Karon reports, that even the radical Shiite cleric Moqtada al-Sadr, whose support was critical to getting Maliki reelected, has taken to referring to the Prime Minister as “the dictator.”

The most egregious case of power-grab by Maliki, was the ‘politically motivated’ prosecution of Iraqi Sunni leader and Vice-President of the government Tarek al-Hashemi, who was forced to flee Baghdad to escape criminal charges his supporters see as designed to hobble the Sunni political leadership.  According to Mr. Karon, Hashemi fled first to Erbil, capital of Iraq’s Kurdistan Regional Government (KRG), whose terrain the Iraqi security forces are not authorized to enter, and is now in Turkey.

Barzani’s ‘declaration of defiance’ against Maliki, is very much the result of Kurdistan’s long-held desire for independence as well as a consequence of Maliki’s recent attempt to consolidate power.  Although unilateral secession by the Kurds (or the Sunnis) is somewhat unlikely, the escalation of political tensions by Maliki could lead to the eventual break-up of Iraq.

Furthermore, according to the AP, Barzani also said he “wholeheartedly” supports Sunni desires to create their own self-rule regions in Iraq.  Sunni lawmakers, whose Iraqiya political coalition won the most seats in 2010 parliamentary elections but were outmaneuvered by Maliki for the right to form the government, bitterly complain they have no say in Iraq’s power structure.  Unless something is done to alleviate the concerns of Kurds and Sunnis about their place in the national government, Iraq might inevitable collapse.

Salvation however might still lie within, courtesy of the federal elements of the Iraqi constitution.

(2010 Iraqi Parliamentary Election Results – From Wikipedia)

Iraq’s Ethnic Federalism

Under Iraq’s current ‘ethnic/religious federalism’, major political powers are divided among people representing the three main religious/ethnic division: the Kurds who make up 20% of the population, and between the two Muslim faiths (65% Shia and 30% Sunni).  Therefore, the convention that has emerged since 2005 (when the current constitution came to force) has been to elect a President of Kurdish background, while the Prime Minister has to come from the Shia community, and the Speaker of the Council of Representatives (parliament) from the Sunni community.

In Iraq’s federal structure there are four different levels of government: the central government in Baghdad, the regions (currently only one – Iraqi Kurdistan), the provinces (eighteen) and the local administrations.  The Iraqi constitution is very much typical federal constitution, in the way it distributes powers vertically.  The federal/national government in Baghdad has limited enumerated powers, and the provinces are endowed with their own distinct political/legislative/judicial authorities.  Therefore, the constitution provides that the regions enjoy a great amount of power under this structure, often at the expense of the central government in Baghdad.

The constitutions federalism even grants provinces the power to join together and form ‘regions’ which will be semi-autonomous.  Although Iraqi Kurdistan is the only legally defined region within Iraq, with its own government and quasi-official militia, other provinces can do the same through a referendum (See: Art. 115 of the Iraqi Constitution).

Therefore, Article 115 applies to provinces joining together and forming a region.  In fact, instead of blocking the creation of large and powerful administrative regions in the country that could confront central government or even each other, the constitution actually encourages it. This is particularly worrying considering that separatism is already a very powerful trend in Iraq.

In Iraq, it was very much expected that the governorates will begin the process of grouping together immediately after the parliamentary elections of 2005.  Political tensions between the three communities, could lead to further ethnic/religious divisions and the eventual ‘partition’ of Iraq.  According to Zaid Al-Ali, “the result will most likely be that Iraq will eventually come to resemble Belgium, whose federal structure of government contains three states: Flanders (Flemish-speaking), Wallonia (French-speaking), and Brussels itself.”  Similarly, Iraq is likely to be divided in three parts, with a Kurdish region in the north, a Shia-dominated south and a Sunni region in the center.

Horizontal Federalism – the Iraqi Federation Council

The only way to prevent this from happening is by strengthening ‘horizontal federalism’ within the Iraqi federal government.  Under the Iraqi Constitution, there are to be two legislative houses, the Council of Representatives and the Federation Council.  The Council of Representatives is directly elected by the people, “at a ratio of one representative per 100,000 Iraqi persons representing the entire Iraqi people.”  The Council of Representatives has the power to enact all federal laws, including the approval and adjustment of the federal budget, conduct foreign policy and defense, and consent to a declaration of war or state of emergency.

On the other hand, the Federation Council does not exist yet.  The Federation Council is to be composed of representatives of regions and all governorates that have not joined a region.  The Constitution does not enumerate the formation or functions of the Federation Council, but leaves those particulars to the Council of Representatives.  (See: Article 62 of the Iraqi Constitution)

There are plenty of available models for a second legislative chamber representing sub-national entities (like the German Bundesrat, or the South African National Council of Provinces), but of course the U.S. Senate could be the best model to protect the provinces and curb the federal government’s powers.

A second legislative body, which represents all provinces equally, with a primary function of safeguarding the rights and privileges of the regions and provinces from excessive overreach by the federal government will go a long way in alleviating fears and concerns by the ethnic/religious minorities of Iraq – as well as strengthen federalism and prevent any further talk of secession of break-up.

Getting the Maliki government to implement such a reform is another thing…

Sources:

AP Interview: Iraqi Kurd leader hints at secession, by Lara Jakes

Power Struggles in Baghdad and Beyond Mean Opportunities for Iraq’s Kurds, By Tony Karon

Iraq: a constitution to nowhere, by Zaid Al-Ali

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About Nasos Mihalakas

I am an Assistant Professor of International Business and Government policy, and a former U.S. Government policy analyst. I have over nine years of experience with the U.S. government as a trade policy analyst, and U.S.-China trade relations. I have worked for both a Congressional Commission advising Congress on the impact of trade with China and for the U.S. Department of Commerce investigating unfair trade practices. However, my education has been on constitutional and comparative law, with an LLM from University College London, and a JD from the University of Pittsburgh. Currently I am writing a book on the evolution of Federalism in the U.S., and the application of Federalism as a form of governance around the world. You can contact me at: nasos.mihalakas@gmail.com
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