Iraq adopted the Constitution 20 years ago but state-building is still impossible
Last month, some of Iraq’s most hardline MPs demanded a parliamentary session to vote for the expulsion of American and other foreign forces from the country.
Even though the MPs failed to achieve a quorum, there could well be a next time. And they might succeed, just as they did in 2020, in securing a majority vote for a non-binding “parliamentary decision” to evict these forces.
While the issue of foreign forces could be argued different ways, what is less debatable is that the country’s Parliament – or more specifically the lower chamber, called the Council of Representatives – enjoys a monopoly in national politics, with few checks and balances. This needs to change.
Ever since Iraq’s Constitution was adopted in 2005, Parliament was meant to also have an upper chamber – called the Federation Council – that would ensure adequate representation of the country’s governorates and regions. The Council was to come into being during the first term of the newly constituted Parliament. In the meantime, its powers were assigned to a one-term Presidency Council, comprised of the President and two Vice Presidents, which had the final say on the legislative process.
However, the Federation Council was never created, and the Presidency Council was replaced with the sole authority of the President, albeit with greatly reduced powers. Over the next 14 years, the President’s largely ceremonial role has been repeatedly undermined by all three branches of government. Parliament deliberately includes the statement, “The law is valid once issued by the Council of Representatives”, as a matter of course, in all draft legislations, even before they are submitted to the President for his endorsement. The problem with this practice is that it is neither legal nor constitutional, because laws are considered ratified only after 15 days from the date of receipt by the President.
Successive presidents have argued that they retain the constitutional right to return any new legislation to Parliament without ratification, albeit once. Parliament can persist with the legislation and ignore the President’s intervention, although the latter can prevent its enactment by blocking its publication in the official gazette.
Published legislation is given reference numbers, but only when it carries the President’s signature. However, even this has been undermined when legislation was published and enacted without the President’s endorsement.
In 2020, for instance, MPs sought to push through legislation to change the criteria for validating degrees awarded by universities or institutions previously not recognised by the government, which then-president Barham Salih and the Cabinet objected to. Yet the legislators forced the president to back down by threatening to amend a law that would have further diluted his powers.
It was the perfect illustration of the discord that exists between institutions that are supposed to be integral and complementary.
A number of legislators, particularly those representing minority communities, have warned against Parliament being used as a “blunt instrument” against them. In fact, all the major ethno-religious sections of the country are divided, polarised and defenceless in the face of ill-conceived, half-baked or detrimental laws.
In a parliamentary democracy such as Iraq’s, it is the legislature’s responsibility to use the Constitution as a roadmap to build the state and the nation. However, in a fragile country plagued by internal crises and entangled in regional power rivalries, this was never going to be easy. Two decades after the adoption of the Constitution, there are few signs of constitutionalism in Iraq.
Few within the corridors of power seem to consider the Constitution to be a sacred social contract or the ultimate arbitrator. Politicians have tended to be selective, subjective and sometimes even sectarian in their application of the document. Some elite judges have even openly rejected federalism, the very feature that undergirds the Constitution. It is not surprising, then, that as many as 33 of the Constitution’s 144 articles await mandated legislation, with dozens more awaiting amendment.
Most of the legislation is critical to enforce the rule of law, institutionalise centre-periphery relations, strengthen checks and balances, and optimise the management of national resources and assets. In its absence, there are numerous structural and functional gaps in the governing system that have contributed to the country’s fragility and acted as independent drivers of conflict.
At the core of this most fundamental problem is the absence of a supreme authority with the power and legitimacy to safeguard the legislative system and prevent poor or detrimental laws from being enacted. Unfortunately, no president, prime minister or speaker from the past has ever prioritised the creation of the Federation Council, due largely to the lack of political will. Left alone, it could take at least a generation before the creation of such a body is seriously debated, let alone established.
Meanwhile, Iraq’s fragility, instability and unpredictability remain a threat to its own people, as well as to its international partners.