Iraq’s constitutional limbo
Systematic disregard for the constitution says a lot about Iraq’s flawed political system, writes Salah Nasrawi
Iraq’s post-Saddam Hussein constitution was once billed as second to none in the region. It was drafted to reflect the Iraqis’ aspirations for freedom and justice and to craft a power-sharing democracy that would replace one of the Arab world’s most ruthless autocratic regimes.
Today, 10 years after the US invasion that toppled Saddam, Iraq’s supreme law of the land stands as one of the most overlooked and sidestepped political and legal instruments amid criticism that power grabs by rival groups have reduced the founding document to a mere piece of paper.
Moreover, Iraq’s democratic process, unfolded a decade ago at the height of the US invasion and trumpeted by US President George W Bush as “a beacon of democracy” for the rest of the Arabs, is now a mockery.
Damning evidence suggest that violations of the constitution by politicians is becoming routine, driving Iraq to the tipping point of collapse.
For nearly a year now, Iraq has no functioning head of state after Kurdish President Jalal Talabani was flown to Germany for treatment following a stroke that rendered him permanently incapacitated, mentally and physically.
Though the constitution stipulates that a new president should be elected for the remaining period of the president’s term, if the post becomes vacant “for whatever reason”, no action has been taken to comply with the concrete rules set.
Last month, leader of the Kurdish autonomous region Masoud Barzani accepted a decision by the region’s parliament, which is controlled by his party and its allies, to extend the second term of his presidency for two years and put off presidential elections scheduled next month.
Barzani has been refusing to send a draft constitution back to the regional parliament for further discussion before calling for a referendum on the document.
Barzani, much like the Baghdad federal government, has treated the region’s draft constitution, which places a limit of two four-year terms on his post, as if it were a list of suggestions, rather than fundamental rules for governance.
Consequently, Kurdish opposition groups now threaten to boycott the region’s parliament and provincial elections scheduled next month, raising fears of a setback in the northern enclave’s emerging democracy.
The Baghdad government is also in serious breach of the constitution’s letter and spirit with regard to building a participatory and inclusive democracy. Most of the senior officials in the government, army and police have not been endorsed by parliament, as required by the constitution.
Confirmation is necessary to ensure transparency and power sharing among Iraq’s ethnic and sectarian communities. To circumvent the rules, they are all undertaking their posts as acting portfolios.
One key violation of the constitution by the government is its refusal to let parliament question ministers and other top officials on essential matters, such as security, corruption and a lack of basic services.
Government opponents have repeatedly accused Prime Minister Nuri Al-Maliki of sabotaging the legislature.
Parliament speaker Osama Al-Nujaifi has often complained of Al-Maliki’s rebuffs to requests that he appear before the assembly and answer questions about government shortfalls.
“This is clear evidence of arrogance and rebellion against the will of the people,” Al-Nujaifi said in a statement in May.
“By his [Al-Maliki’s] defiance to the constitution, he is letting more blood be spilled,” he said, in reference to the failure of security forces to curb violence.
Al-Nujaifi threatened to take the prime minister to court on charges of contempt of the constitution, a measure he has so far refrained from taking.
In terms of human rights, the Iraqi constitution bans all kinds of abuses and obliges the state to guarantee all freedoms, including freedom of expression, press, publication, assembly and peaceful demonstration.
Nevertheless, rights groups have recorded gross violations of all stripes in Iraq since the 2003 US invasion, from bans on peaceful protest and restrictions on the media to unlawful detention.
For years, the Iraqi government has been meeting with force protests demanding jobs, electricity, clean water, and an end to government corruption.
This week the Iraqi Ministry of Interior refused to authorise an anti-corruption protest planned in Baghdad on Friday. On 2 August, security forces detained 13 people who attempted to protest against corruption in Baghdad.
In February 2011, police killed five protesters after clashes broke out between protesters and security forces as demonstrators sought to rally against corruption in local governments.
Thousands of Iraqis are believed to be held without trial or charge. Some are denied access to doctors and medication, and many are tortured, according to human rights groups.
Breaches of the constitution also include matters of sovereignty and national interest.
Last week, Iraq’s parliament said it had ratified a controversial treaty with neighbouring Kuwait on navigation in a disputed strategic waterway in the Arabian Gulf.
No breakdown for how many and how MPs had voted on the bill was made public by the parliamentary speaker’s office, or the government, while opponents to the treaty said the vote violated rules set by the constitution.
Local media said that one third of those who attended the session, or 108 members, voted for the treaty, while 74 rejected it. Fourteen members abstained.
Iraq’s constitution states clearly that the parliament “shall regulate the ratification of international treaties and agreements by a two-thirds majority” of its 325 members.
The treaty with Kuwait was approved by just a third of the members, thus rendering the ratification as unconstitutional, critics argue.
Many Iraqis claim that the agreement surrenders Iraq’s historic rights in a strategic waterway and limits its access to the Arabian Gulf.
A key reason behind these violations is the absence of a functioning constitutional court, which otherwise would ensure that constitutionally established rights and freedoms are applied and that the government functions according to the constitution.
Although Iraq’s constitution states that a federal supreme court should be established, a law to determine its structure has never been enacted.
Perhaps the most immediate effect of the absence of this court is that an existing federal tribunal formed by the US-led interim authority is now working under the government’s influence.
Critics say most of its decisions have been politicised and its rulings were interpreted in the government’s favour.
On Monday, it vetoed a term-limit law passed by parliament in January, paving the way for Al-Maliki to run for his post in next year’s election. The federal judicial body said that parliament has no mandate to place the limit, saying no such discretion is specified in the constitution.
In addition, some eight years after the adoption of the constitution, parliament has failed to pass a law for political parties, a prerequisite for a sound multi-party and democratic system.
In the absence of such a law no one is sure how current political groups in the government are functioning, or where they are getting finance from, and what are the boundaries that separate them from the government apparatus that they control.
Indeed, exclusiveness and authoritarianism permeates all political groups across the spectrum and frames their relations with the state. They have even moved this culture of oligarchy to the government and are now interpreting the constitution and laws to mean anything they want them to mean.
Moreover, Iraq has failed to set up a federal council that, according to the constitution, would have acted as an upper chamber of parliament to oversee federal issues and represent regions and provinces.
One of the key duties of this federal council, as stated in the constitution, is to ensure a separation of powers, serve as a buffer between the executive branch and the lower legislative chamber, and afford local governments a greater voice within the central administration.
Overall, the project of building the region’s most progressive system in Iraq, as bragged about by US officials after their 2003 invasion of Iraq, through an all inclusive constitution has proved an epic failure.
Iraq’s present day reality of unabated violence, unbridled corruption, dysfunctional government and political stalemate is stark testimony to a dream of democracy turned to a nightmare.
What is most feared now is that the same much-touted constitution would become an engine for further instability and maybe the country’s ultimate collapse.