This post is also available in:
العربية (Arabic) 
Español (Spanish) 
Français (French)
Iraq urgently needs a real constitution. The number of reasons for the state’s failure and constitutional misery have been growing daily since 2005 (Alnasir, 2021b; Cordesman & Molot, 2019; Jayamaha et al., 2017; Flibbert, 2013; Underhill, 2014)1 and are exploding as 2023 approaches and many of those reasons are being adults. This isn’t specifically related to the political corruption, the stateless or the increasing hopelessness, conflicts and massive migrations. It’s also an international responsibility, as it was the international community itself who perpetrated this nationwide massacre. But the problem today is another international conflict that may have repercussions for the global economy, as Iraq owns valuable sources of energy, and the constitutional ambiguity is guiding the country towards significant international conflict. So, the major problems today are neither directly about the over five million refugees who had to flee the country during the government’s ethnic cleansing of 2006–2010, nor the emergence of the Islamic State in 2013 after the governmental massacre of the civilians who questioned the constitutional vigour(Khedery, 2014), and the war after that which caused another million victims and destabilised the Middle East(Filkins, 2014). All these problems aren’t so important for the international community, as western ethics aren’t overly troubled by such groups of people. But the current constitution-related problems would have a significant impact on the global energy market, as Iraq produces more than three million barrels of oil daily and an increased capacity of around four million barrels in the next five years is predicted.
A constitution is a dialogue between equals (Gargarella, 2021), but Iraqi constitutional history has never been so, Iraqi constitutions have been either hegemonic impositions or military state coup proclamations. The first ‘post’colonial constitution of 1925 was written and provided by British colonial authority and approved by popular referendum (in which the so-called choice was either to approve that text or serve the protectorate). Again, after the US-led coalition invaded Iraq in 2003, another constitutional text was written by the coalition command. The new constitution of 2005 was coined by its translators in exclusion of the third part of the population under segregation policy. The text neither represented Iraq’s social complexity, nor was genuinely assisted by lawyers, thus it could be more comprehensible the English-colonial text, then the official adopted Arabic text.
The constitution is troubling not only in terms of its dubious legitimacy and legality but also in terms of its lack of coherence and openness to misinterpretation. It plainly has orthographic errors, which make its ambiguity seriously problematic, and it has many open examples with etceteras. Many scholars have asked me to comment on or write about the constitution—and what happened with my earlier draft (Alnasir, 2003)—but I have kept myself away and silent all these years to avoid subjective rancour and criticism and to collect more pieces of evidence about today’s uncontested failure. Iraq today requires a new and real constitution.
Constitutional calamities in Iraq have been numerous (Alnasir, 2021a). But the most significant one currently, which may have global repercussions, is the recent Iraqi Federal Supreme Court verdict of mid-February, which reveals a constitutional crisis, with even more and deeper problems with ambiguity. The verdict and this ambiguity are leading Iraq towards a serious confrontation of powers internally and an imminent Turkish invasion of the country, which may cause a global economic disaster in terms of oil resources and impacts on prices. The conflict arises from an idle type of constitutional redaction and contradictory schema.
Here is the explanation:
Article 111 of the Iraqi constitution states that “oil and gas are owned throughout [Iraq] by Iraqi people in all provinces and regions”. Even this designation is ambiguous, as it does not refer to other potential hydrocarbons or minerals throughout Iraq: it names only oil and gas, excluding other resources. Meanwhile, the successive Article 112.1 contains yet another ambiguity:
The federal government administers the oil and gas extracted from the current mines with the regional and provincial governments with the obligation of distributing [the oil and gas] equitably to all the people all over the country, within a specific designation in a specific period to the sinistered regions which have been excluded during the old regime to ensure an equitable development nationwide a law should regulate this.
Article 112.1
The ambiguity isn’t in the translation of this text, as I have tried to intricately observe and reflect the ambiguity from the original. The entire article doesn’t include more than one single comma and is expressed as I presented it. From this Article nothing is clear, we don’t know: 1) exactly what would happen with the future mines, as the article refers only to the current mines; 2) what should happen with other minerals, as the country has many minerals other than oil and gas; 3) what the association with regional and provincial authorities means and if this refers only to the existing mines, and what or how this association would be with future mines; 4) if there’s any definition of the sinistered regions and if the Article affects the so-called sinistered provinces also, or if this word is only related to regions; then mostly the original English text use the term of damaged regions, which has no absolute meaning not specification either 5) how much this designation should be quantified and during which period. However, the most significant problem lies in the last statement surrounding all these ambiguities being regulated by law.
Before going into a further explanation, I will show the successive two Articles’ same ambiguity and contradictions. Namely, Article 112.2 states the following:
The federal government with regional and provincial governments’ oil producers must collectively design strategic policies to develop the Iraqi wealth of oil and gas for a higher benefit of the Iraqi people according to the most modern techniques of the market economy and to attract investments.
Article 112.2
As is, there’s no way to understand the meaning of this schema, nor how this association should be implemented, to understand the meaning it requires to read the original English text, not the Arabic’s one officially adopted. So to understand the Iraqi constitution it’s better to read the English version as original, not the Arabic’s one which the people really vote in referendum, which terribly written by translators. But the most terrific Article in this context isn’t the above one, it still Article 115, which states the following:
All that had not been precisely designated as federal competencies shall be understood in favour of regions and those provinces that do not belong to a region and those subjects that share the federal and regional governments the superiority shall be understood in favour of the regional law and the provinces not belonging to a region when contradiction is appreciated.
Article 115
This Article, in conjunction with Article 112.2, would challenge constitutionalists worldwide to find such a scenario around the globe. It’s not necessarily a problem that the constitution was written by foreigners, translators or even invaders. It’s not only because of linguistic discrepancy into the original English and the officially adopted text, but which translator or which lawyer assists such a statement without even one single comma, especially with such ambiguity? I’m not referring to the terror of regional regulation that comes with federal rules, nor the ambiguity between regions and provinces, but this Article and the earlier mentioned 112.2 have created serious confusion regarding oil management.
The problem is not only in the constitutional text itself but also in the Iraqi Federal Supreme Court established by this constitution; in 2012, the court was sued by the central government’s Ministry of Oil against a decision of a city council of Kut, who voted to block the exportation of the oil produced in their city to conform to the local necessities of oil derivates in the application of Articles 111 and 112.1 of the constitution. The worst outcome, in this case, concerned the court rolled that the referred Article to administer the oil resources of the central and provinces government should be regulated by a regular law. As that law hasn’t been adopted yet, the constitutional provision shall be understood as deferred/suspended until a legislative regulation is provided.
So, a constitutional statement that designs a specific schema and is to be regularised by ordinary law is being suspended by the court and unavailable until ordinary legislative regulation is introduced. Then, the entire constitution itself becomes suspended, as the ordinary legislator didn’t provide any regulation. The most curious aspect of this dependency was recently seen through a regular law which came to reform the referred Supreme Court itself; meanwhile, Article 93.6 designates the court mission is “to judge the accusations against the president of the republic, the Prime Minister, and the ministers, which should be regulated by a regular law”. Thus, according to case-law 8/fed/2012, this constitutional schema is deferred, as the ordinary legislative Act hasn’t been passed. Instead, the ordinary legislator passed an Act nº 25/2021 by reforming the court status “to judge the accusations against the president of the republic, the Prime Minister, and the ministers”. So, it amended the constitution tacitly by an ordinary legislative Act by surprising the legislative submission and solving the labyrinth in which the court put itself. Is it possible to consider such conduct as real state policy? Seriously we should review the Iraqi universities’ entitlement and how their graduates are getting diplomas in law.
The worst of the crisis has now emerged, according to the literal expression of Article 112.1, which refers only to the actual oil mines. Namely, the regional government of Kurdistan in 2007 adopted a regional law to promote the investigation to find new mines in its regional territory. That law hasn’t ever been contested by the central government, as they were too busy with ethnic cleansing and refilling their bank accounts in the west (Fletcher, 2011). Therefore, the government of Kurdistan had research contracts with some foreign companies to find new oil mines, even without having an international personality, and these contracts haven’t been contested by the central government. When they found oil and started extracting and transporting it using the national pipeline toward Turkey—a country that patrols Iraq’s territory—then the federal government started to contest the usage of the pipeline, blame Turkey and raise the issue in the Supreme Court in 2012. The most shameful episode in this situation was that the court took ten years to give a verdict (by contrast, the court solved the earlier conflict with the southern city of Kut within some weeks). But the court’s solution is even more incomprehensible than the long, agonising process it took to provide the solution. The court finally declared as unconstitutional the Act of Oil and Gas of the Region of Kurdistan (dated 2007); meanwhile, no one in the process contested this specifically. Then ordered the regional government to “empower” the central government to renegotiate the current contracts by understanding that as a federal concern, according to Article 112.1 of the constitution, as the sharing schema is deferred and pendent on an ordinary legislative regulation. So, as those contracts have been formed under a regional law that wasn’t contested in its time, yet has been declared unconstitutional now, it is therefore null. Nobody knows how the consecutive contracts should be renegotiated and what the term “empowerment” in regard to the federal government actually means.
How is it possible to qualify this text as an acceptable constitution and those senior agents as statesmen? A nation that presents itself to the world without a proper constitution is like someone who presents himself at a dance party in a swimming suit(Hauriou & Gicquel, 1966, p. 73). Thus, this is what’s most likely to happen now: Turkish troops are incursion the Iraqi border to protect the oil mines which their companies discovered according to these contracts, as the constitutional statement referred only to the existing mines at the time the constitution was written but not to future mines.
Iraq urgently needs a new constitution, but (truly) this time it should be written by ex-pats and outsiders, as the state’s senior leaders need an emergency massive replacement, for since the coalition invasion, the intellectual mass of the country has been replaced entirely with a sublevation mass without a basic academic background. The country has been managed entirely by false diplomas, ministers and ambassadors, who haven’t even graduated from high school yet entitled themselves with false doctoral diplomas. The result is patent. Several million Iraqis have fled and are still fleeing the country, not due to the war or the invasion itself but due to the adoption of this so-called constitution in 2005. Iraq is a constitutionally inert and stateless country. Thus, it’s evident that the current so-named constitution doesn’t imply a minimum standard to be considered as a constitution and has caused more problems, calamities, ambiguities and social segregation. Now there are even international conflicts, with global impacts, so Iraq requires a real constitution more than a new constitution.
1It’s paradoxical to hear voices, among those who blame the state failure, from those who are part of the state’s regime itself; Alaaldin (2021), having served as an advisor to two former Iraqi presidents, blame among the academia the state-failure. So if policymakers themselves argue a state-failure, so what in academia we could say more?
Bibliography
Alaaldin, F. (2021, February 6). A State in Collapse: Iraq’s Security and Governance Failures. The Washington Institute. https://www.washingtoninstitute.org/policy-analysis/state-collapse-iraqs-security-and-governance-failures
Alnasir, S. (2003). Temptation Constitutionnelle de l’Irak. In J. M. Crouzatier, (Ed.), Justice Constitutionnelle en Asie (pp. 156–186). Presse Universitaire de Toulouse.
Alnasir, S. (2021a). Calamidades del Derecho (post)Colonial y su Orientalismo: Religión, Identidad y libertad individual en Egipto, Iraq y Túnez. Boletín Mexicano de Derecho Comparado, 158, 485–519. https://doi.org/10.22201/iij.24484873e.2020.158.15627
Alnasir, S. (2021b, April 23). Las revueltas de octubre 2019, el laberinto de la desesperación aprendida en Iraq. I Seminario Intercongresual del Comité 32 de la FES: Relaciones Internacionales, Estudios de Áreas y Globalización, Ciudad Real. https://doi.org/10.13140/RG.2.2.29228.80005
Cordesman, A., & Molot, M. (2019). Iraq as a Failed State (p. 17). Center for Strategic & International Studies. https://www.csis.org/analysis/iraq-failed-state
Filkins, D. (2014, April 21). What We Left Behind. The New Yorker. http://www.newyorker.com/magazine/2014/04/28/what-we-left-behind
Fletcher, P. (2011, June 14). Former top Iraq financier denounces bank power grab. Reuters. https://www.reuters.com/article/us-iraq-banker-idUSTRE75D40620110614
Flibbert, A. (2013). The Consequences of Forced State Failure in Iraq. Political Science Quarterly, 128(1), 67–95.
Gargarella, R. (2021). El derecho como una conversación entre iguales. Siglo XXI Editores.
Hauriou, A., & Gicquel, J. (1966). Droit constitutionnel et institutions politiques. Montchrestien.
Jayamaha, B., Petit, K., & Reno, W. (2017, April 21). Iraq’s Path to State Failure | Small Wars Journal. Small Wars Journal. https://smallwarsjournal.com/jrnl/art/iraq%E2%80%99s-path-to-state-failure
Khedery, A. (2014, July 3). Why we stuck with Maliki—And lost Iraq. Washington Post. https://www.washingtonpost.com/opinions/why-we-stuck-with-maliki–and-lost-iraq/2014/07/03/0dd6a8a4-f7ec-11e3-a606-946fd632f9f1_story.html
Underhill, N. (2014). Iraq: State Failure, Terrorism, and Insurgency in Context — Part 1. In N. Underhill (Ed.), Countering Global Terrorism and Insurgency: Calculating the Risk of State Failure in Afghanistan, Pakistan and Iraq (pp. 130–152). Palgrave Macmillan UK. https://doi.org/10.1057/9781137383716_7
