Much has been said and written about the current crisis in the Kurdistan region of Iraq that does not entail ISIS. On August 20th the term of office for President Masoud Barzani was supposed to have ended. In fact is was supposed to have ended two years earlier but was extended by the Kurdish Parliament. Because the term of office has ended, and there being no new elections, the question of legitimacy of the presidency is in play. Kurdistan has been called the model that the rest of Iraq should follow. For the last ten years it has seen economic growth and relative peace and stability. There have been rough patches and problems both internally and with the federal government in Baghdad. Currently the region is under tremendous threat from external sources. Both the terrorist group ISIS and Turkish incursions have put tremendous pressure on the Kurds and their government. Battles with the central government over budget sharing and oil sales have left the Kurdistan Regional Government cash strap and unable to pay its own people or army. Today however opposition politicians and a youthful diaspora see the main threat to Kurdistan as whether or not Barzani has a right to remain in office.
There are some areas which must be addressed. First: Barzani called for elections last June. This may have been a political maneuver knowing that it would be next to impossible to achieve. The electoral board did say it would take six months to set up, to date no elections have been scheduled. Second: When submitted to the Kurdistan Consultative Council, part of the Kurdish government’s Ministry of Justice authorized to provide decisions on legal disputes between government agencies, it was determined Barzani could remain in office for two more years. This decision was met with rejection by those Members of Parliament opposed to Barzani. Third: prior to the next election opposition MP’s want to change the constitution to reduce the office of the President to one of little power, only a ceremonial office responsive to Parliament. Last: but assuredly not least, is the burning problem that all of this revolves around constitutional questions, when in fact there is no constitution. The draft constitution was never ratified as required and its authority is still pending.
From a Western perspective constitutions are the supreme law of the land. Amongst other things constitutions set up the forms of government and delineate the powers of the different branches. Under the draft constitution of the Kurdistan region the office of the president has executive authority and the president is elected by popular vote, with a term of office limited to two four year terms. The parliament is elected buy single person vote of party lists and there is to be a Supreme Court, called the Constitutional Court of Kurdistan in the draft constitution. This last is a serious deficiency as there currently is no court. Under the draft constitution the courts functions are.
The Constitutional Court shall have jurisdiction over the following matters:
Explain the stipulations of the article of the Kurdistan Region’s Constitution.
1- Monitor the constitutionality of the laws, based on a request from the President of the Kurdistan Region, the Council of Ministers, ten members of Parliament, or any concerned party.
2- Decide the legality of decrees, regulations, resolutions and instructions, based on the request of any concerned party.
Many opponents of Barzani are calling for rule of law to be applied while his supporters are saying he is within his legal rights to remain. The Constitutional Court would be the natural venue for resolution, if it existed.
The big questions now are, does the Parliament have the authority to do anything? Does the President have the authority to do anything? Under what authority does the Kurdistan Regional Government exist? What law rules? Both the parliament and the president are operating under de facto authority which can be extended or removed by the will and whim of political power.
“Kurdistan does not have a constitution and it does not have a high court that is dedicated to its interpretation or looking into such sovereign issues. If this battle became a legal one, there is no mechanism in place to make a final decision on this.”
“It’s the politics that decide what happens to the law, rather than the law deciding what happens to the politics. Everything here is politicized, and this issue is a political one,” said Dlawer Ala’Aldeen, president of the Middle East Research Institute (MERI), a think tank based in Erbil.
I am not putting forth a legal argument for the retention of Barzani nor am I suggesting the Parliament do nothing to move the region forward. I am suggesting that there are a number of very serious issues facing the region that must be dealt with before two branches of government clash over power. First the region must be made physically secure, ISIS must be defeated. Second the economy must be energized so that the people can survive. Next either make peace with the central government or declare independence. The Kurdish people deserve a functioning government. They deserve what was promised them at the end of the war. They deserve freedom. I would quote the four freedoms from FDR’s 1941 State of the Union Speech, the people must have:
Freedom of speech
Freedom of worship
Freedom from want
Freedom from fear
If an election can be held, hold one. If you want to amend the constitution ratify the draft you have and then amend it, or write a new draft and get that one ratified.
It has been pointed out that all of the opposition parties, not sure how they are opposition since they control 51% of parliament, are opposed to Barzani continuing as president, then why can’t they come together and pass a resolution, or at least put one forward. Please for the sake of the people put politics aside and move forward.