BAGHDAD - At a press conference in Baghdad on November 20, Prime Minister Nouri al-Maliki made statements which angered the leadership of the Kurdistan Regional Government(KRG).
Among the comments made were, “I am surprised with the Presidential Board’s silence regarding the constitutional violations committed by the Kurdish leaderships, through opening offices for diplomatic missions, deploying forces to encounter federal governmental forces, in addition to using governmental funds to support tribes serving their parties’ interests.” He also said, “All oil contracts signed by Kurdistan’s government with foreign companies violate the constitution.”
Last week, during the security agreement wranglings in parliament, lawmaker Ala Talabani, in the Kurdistan Coalition bloc, told Iraqslogger, “These comments have changed the way we look at the prime minister’s power. We have some demands for him to respect minorities and territories in Iraq, and to respect the constitution, but we will support the security agreement because it is a different issue. Later, we must address the prime minister’s accusations.”
Today, a response was made in the form of a lengthy statement on the KRG’s website, with a focus on the Constitution, al-Maliki’s controversial "support councils", and, of course, oil. Below is the full text.
The development of good governance that effectively serves all the people all the time, in all corners of Iraq, is a long and extremely difficult work in progress. This work began with the overthrow of the former regime in 2003. It went through three interim governments culminating in the overwhelming approval of the Constitution in 2005 and the formation of a permanent government in 2006. From this initial formation of structure and system, the process has been progressing toward establishing partnerships and procedures, albeit sometimes with severe difficulty.
With due understanding and full respect for the traumatic history we have been passing through, which must neither be forgotten nor repeated, and the excessive burden of our troubled legacies, it is not surprising that the process of developing good governance is indeed so difficult.
It is thus unfortunate and deeply regrettable that the press conference of Iraq’s Prime Minister illustrates efforts being made to take the people of Iraq back to a period we are desperately trying to get beyond. It was a period where the excessive concentration, or centralization, of economic and political power condemned all Iraqi peoples to unimaginable suffering.
Prime Minister Nouri Al-Maliki’s press conference focused on a letter from the Iraqi Presidency Council questioning the formation of “Support Councils.” In reaction to this letter, the Prime Minister singled out the Kurdistan Region and described certain of its policies and actions to be unconstitutional.
Given the seriousness of these allegations, it is important that all Iraqis are better informed and become educated regarding the issues and facts.
These are tribal councils directly affiliated with the Office of the Prime Minister of the federal government. The Office has been contacting people in the Kurdistan Region, and in the so-called disputed areas. The people being contacted include former collaborators who were closely linked to the security and intelligence agencies of the defunct regime of Saddam Hussein.
The purpose is to enlist these people into forming groups that support the Prime Minister in the disputed areas. The groups are to be armed and they are to become part of the government structure, organized, equipped, and paid for by the federal government.
The former collaborators, who include tribal leaders of the Kurdistan Region, in the past, conspired against fellow citizens. They took active part in military operations that detained, tortured, and killed fellow citizens, including civilian women and children, for political reasons. They aided and abetted the forcing of thousands of families to migrate from their homes, and in destroying their communities.
Following the 1991 war and uprising, however, the Kurdistan Front, a consortium of opposition political groups, issued a general amnesty to all collaborators on the condition that they never again participate in such treachery and violations of human rights.
The Office of the Prime Minister has also contacted collaborators who actively participated in the Anfal, a campaign that the international community has determined to be genocide. These persons, who have been on the run since 1991, were not included in the general amnesty.
The amnesty successfully called for surrendering of arms and serving the part of Iraq that was liberated during the period 1991 to 2003. It began a new chapter, a process of reconciliation that led to a still deepening sense of forgiveness and tolerance. This was, indeed, an important strategy to engender and promote levels of personal security and political stability that the people of the Kurdistan Region enjoy today.
A result of this policy is that the Kurdistan Region became a safe haven for many former non-Kurdish Iraqi opposition leaders and their families. The Region became the stage for opposition groups to organize their activities against the former regime. Most of these groups are now part of the political process within the government of a new Iraq.
Enlisting such pro-regime collaborators into “Support Councils” in the Kurdistan Region and in the “disputed areas” could very well have the following effects:
1. Instability and discord within the Kurdistan Region on the order of what occurred during the rule of the former regime.
2. The creation of divisions in national reconciliation within the Kurdistan Region.
3. The creation of security lapses that allow infiltration of terrorists into the Region.
4. The creation of armed groups in the “disputed areas” that cause destabilization, divisions, and strife.
Establishing these “Support Councils” was not a consensus decision of the Iraqi Council of Ministers. Whether the councils are constitutional is a matter to be determined by the Iraqi Council of Representatives, the Iraqi Presidency Council, or the Federal Supreme Court.
The duty of the government is to create an environment conducive to reconciliation, not to reverse the progress already made. The government has the responsibility to provide security, not to create insecurity. The mission of the government is to create tolerance, not to plant the seeds of division.
These “Support Councils” cannot, and will not, contribute to national reconciliation. Nor can they contribute to peace and stability. These councils would have only a destabilizing effect because they are a re-creation of Saddam-era collaborator groups who brought death and destruction to the Kurdistan Region.
It would appear that the intention of these councils is to undermine the Kurdistan Region and to thwart reconstruction and development in an important part of Iraq. This counters the federal government’s responsibility to ensure security and to promote the political process. It counters efforts of the Kurdistan Region to promote national reconciliation and to shield it against forces that aim to destroy it.
Let us be clear. The days of generating divisions and sowing discord by government among the people of Kurdistan are over. Such attempts stem only from forces opposed to democratizing the political process. These efforts work against the unity and coalition federal government.
It is not surprising that such attempts have met with public denunciations before official responses have been made. These efforts pose a real danger and could lead to sedition, under the pretext of national reconciliation.
Though the Prime Minister has taken the oath to promote and protect the Constitution of Iraq - as it currently exists - it is, indeed, disconcerting when he cites the Constitution in attacking others while apparently violating it when taking unilateral decisions. The Prime Minister is obligated to act within the limits of the current constitution and not in accordance with a future constitution he may prefer.
The new order in Iraq is based on the Constitution that was approved in a countrywide referendum. In his press conference, the Prime Minister regrettably offered opinion that the leadership and people of the Kurdistan Region are demanding more than what the Constitution allows.
In response, let us re-examine the Constitution, specifically the distribution of powers. According to Article-110, the exclusive powers of the federal government include formulating foreign policy; national security; formulating fiscal policy; regulating standards, weights, and measures; regulating immigration, residency, and citizenship; regulating the policies of broadcast frequencies and mail; drawing up the general and investment budget bill; and planning policies relating to water sources.
As for the powers of the regions, Article-121 states, “The regional powers shall have the right to exercise executive, legislative, and judicial powers in accordance with this Constitution, except for those authorities stipulated to be the exclusive authorities of the federal government.”
The Constitution, thus, clearly specifies the distribution of powers. The Kurdistan Region seeks no more power than the Constitution allows. It only seeks that the Constitution be implemented.
Oil and Gas Contracts
The Prime Minister has described the oil contracts signed by the Kurdistan Regional Government to be in violation of the Constitution. On existing oil and gas fields, Article-112 of the Constitution affirms:
“First: The federal government, with the producing governorates and regional governments, shall undertake the management of oil and gas extracted from present fields provided that it distributes its revenues in a fair manner in proportion to the population distribution in all parts of the country, specifying an allotment for a specified period for the damaged regions which were unjustly deprived of them by the former regime, and the regions that were damaged afterwards in a way that ensures balanced development in different areas of the country, and this shall be regulated by law.
“Second: The federal government, with the producing regional and governorate governments, shall together formulate the necessary strategic policies to develop the oil and gas wealth in a way that achieves the highest benefit to the Iraqi people using the most advanced techniques of market principles, and encouraging investment.”
As for future oilfields and future exploration, Article-115 is very clear that “all powers not stipulated in the exclusive powers of the federal government belong to the authorities of the regions and governorates that are not organized in a region. With regard to other powers shared between the federal government and the regional government, priority shall be given to the law of the regions and governorates not organized in a region in case of dispute.”
Article-141 of the Constitution also states that legislation enacted in the Kurdistan Region since 1992 shall remain in force, and decisions issued by the Kurdistan Regional Government, including court decisions and contracts, shall be considered valid unless they are amended or annulled pursuant to the laws of the Kurdistan Region by the competent entity in the Region, provided that they do not contradict the Constitution.
The issue centers on the status of oil contracts. Some of the oil contracts were signed even before the Constitution was written. Article-141 clearly establishes the legality of these contracts. As for the newly-signed contracts, which concern new oilfields, they all fall under the terms of Article-115 and Article-111 of the Constitution. This calls for some explanation. On 15 February 2007, there was agreement on a draft hydrocarbon law. There was also a letter to the Iraqi Council of Ministers, dated 26 February 2007, signed by both the Iraqi President and Kurdistan Region President that was approved as an annex to the draft law. This letter urged the approval of the draft oil and gas law by the Iraqi Council of Representatives (COR, the national parliament), and the establishment of appropriate structures and mechanisms specified in the draft law.
The letter also said that if the draft law is not passed by the COR by the end of May 2007, then both sides would have the right to sign oil development and production contracts as per the Constitution. Thus, agreement on the draft law and the annex letter was clear. The annex letter also contains several conditions and commitments that have still not been met by the federal government. The question is why.
If we look at the Kurdistan Region’s oil contracts from an economic and oil-industry point of view, it is clear that:
1. These are oilfield development and oil exploration contracts that would promote capacity-building in the oil industry in the Kurdistan Region of Iraq.
2. Increasing oil production in the Kurdistan Region increases production for all Iraq.
3. Oil sale revenues, whether from the Kurdistan Region or from Basra in southern Iraq, accrue as national income for all Iraq.
4. The oil industry's infrastructure has not made any progress in other parts of Iraq as a result of the disastrous policies of the federal government, despite having spent around 8 billion dollars on this industry. In fact there has been a reduction in oil production and oil export. If this is the state of oil policy in Baghdad, should we be part of the failure or should we continue with our own oil policy in the Kurdistan Region to develop local capacity and attract expertise in the industry, so that we can contribute to a sound oil policy for the whole Iraq? What we have done is first and foremost in the interest of the whole country and then that of the Kurdistan Region. Thus, increasing oil production and capacity-building in the Kurdistan Region is good for the country. Our actions have been constitutional and our contracts are good for all the people of Iraq.
Further, Kurdistan Region President Masoud Barzani has repeatedly said that if there have been any actions by the Kurdistan Region, including the signing of oil contracts, that are in any way in violation of the Constitution, we are prepared to review our position, acknowledge our errors, and abandon our actions. We believe the Constitution has the last word; all our actions derive their legitimacy from the Constitution.
It is also worth pointing out that in his policy announcement in June 2006, the Prime Minister confirmed his commitment to draft a new hydrocarbon law when he said “we will draft new legislation to regulate the hydrocarbon sector (oil and gas) which will also include the rights of regions and governorates as per the Constitution.”
US Military Bases in the Kurdistan Region
We would like to clarify the matter of inviting the US Military to establish bases in the Kurdistan Region, which the Prime Minister described as unconstitutional. This issue was raised when the Kurdistan Region President Masoud Barzani was asked a question recently in Washington DC. The question centered on “if” the Region would be prepared to host US Military bases. The President responded in the affirmative.
There is nothing new here. On behalf of the people of the Kurdistan Region, President Barzani, before most other Iraqi leaders, has repeatedly called for the signing of the status-of-forces agreement between Iraq and the United States. He has supported this policy for the good of all Iraq.
It is well known that there are currently no US military bases in the Kurdistan Region. “If” an agreement is signed, and “if” there is a request to have a US Military base in the Kurdistan Region, then there would be no objection.
Travel to the Kurdistan Region
The Federal Prime Minister pointed to restrictions on Iraqis travelling to the Kurdistan Region from other parts of Iraq, including the requirement that travelers must obtain an affidavit or proclamation from a local resident before they can travel to the Region. This may sound as if Iraqi citizens are prevented from travelling to the Kurdistan Region.
First, it is important to consider figures on Iraqi citizens who have become residents of the Kurdistan Region after fleeing threats of violence in other parts of the country. Our figures indicate that 10,559 Arab, Kurd, Turkmen, and Christian families have fled to, and now reside in, Erbil province. In Duhok province, the figure is 17,980 families. And in Sulaimniya province, it is 6,312 families.
In addition, some 1,900 university lecturers from outside the Kurdistan Region have joined universities in the Region. At least 3,740 students from Baghdad and Mosul and other places study in the Region’s universities. About 14,543 people from other parts of Iraq work as laborers in Erbil province while in Duhok the figure is 9,500.
As for restrictions on travel to the Region, it should be pointed out that there are more checkpoints in Baghdad than the total of all other checkpoints in the country. The Kurdistan Region has also been a target for terrorists. Some of our most prominent political leaders and many others have been victims.
As elsewhere in Iraq, checkpoints screen all travelers entering the Kurdistan Region regardless of their ethnic and religious background, whether they are Kurd, Arab, Turkmen, others, or foreigners. The procedures are not unlike those followed elsewhere in the country.
All peace loving people are welcome. This past summer, hotels in Duhok, Shaqlawa, Suleimaniyah, and other places in the Kurdistan Region, were full of guests from Baghdad, Mosul, and other parts of the country.
The Kurdistan Region accepts full responsibility for the security of all visitors and citizens alike regardless of their origin or background. The laws of the Kurdistan Region and the Iraqi Constitution allow us, and, in fact, they obligate us, to provide security in the Region. The measures we take are purely for security reasons to protect lives. It should not be forgotten that in the past the Kurdistan Region was a sanctuary for people fleeing the oppression of the former regime. The mountains of our Region embraced them, including many of Iraq’s current leaders and their families. Many Christian families, Sabeans, and others who have fled the threat of violence have relocated to our Region. The doors of the Kurdistan Region shall remain open to all, except to terrorists.
Confrontation between Kurdistan Region forces and federal forces The Prime Minister has referred to Kurdistan Region security forces as rebels even though they have consistently served the political process in the country. Indeed, in the early days, they were the only regular Iraqi force following the collapse of the former regime. Since then, they have played a key role in defeating terrorists and outlaws.
Kurdish military units are part of the Iraqi Army. If the Prime Minister was referring to the Kurdistan Regional Guards, the Peshmerga, these forces are authorized per Constitution Article-121 which states, “The regional government shall be responsible for all administrative requirements of the region, particularly the establishment and organization of the internal security forces for the region such as police, security forces, and guards of the region.”
The unfortunate and regrettable confrontation in Khanaqin was due to the unfortunate manner in which decisions were taken and regrettable miscommunication of orders. In effect, however, this incident emanated from excessive delay in implementing Constitution Article-140 for which the federal government is responsible.
Constitution Article-117 clearly recognizes the Kurdistan Region as a federal region but does not define its final boundaries. Constitution Article-143 accepts that the Kurdistan Regional Government (KRG) is the official government of certain specified territory. And, Article-140 calls for the disposition of other territories to be determined in accordance with a specified democratic process.
The boundary per Article-143 was unilaterally, and undemocratically, determined in October 1991. This boundary was militarized and within one month, in November 1991, more than 20,000 families were forced to migrate from areas south of the line - mostly from Kirkuk areas - to the territory north of the line.
Constitution Article-140 lays down a clear road map to define the final boundaries of the territory to be governed by the KRG. The excessive delay in implementing this article is the primary cause of tension and administrative problems in the so-called disputed areas. These are areas that suffered severely from ethnic cleansing and community destruction under the former regime.
Failure to implement Article-140 is also in violation of the policy of the Iraqi government which the Prime Minister announced in June 2006. The Prime Minister stated that “the government will be committed to implement Article-140 of the Constitution which is based on Article-58 of the ‘Law of Administration for the State of Iraq’. The Article specifies three phases for the implementation of this Article which include normalization, census, and a referendum in Kirkuk and other disputed areas. The government will start by taking the appropriate steps for the normalization phase, including by rejoining of the detached districts and sub-districts back to Kirkuk governorate, and complete this phase no later than 29 March 2007. The census phase will be completed by 31 July 2007 and the referendum phase by 15 November 2007. The question is why the Prime Minister has not met his commitments.
Attempts to send in the Iraqi Army and the creation of so-called “Support Councils” in these disputed areas are clearly intended to impede and abort the implementation of Article-140. The incident at Khanaqin was never about the deployment of the Iraqi army for security purposes. The area was already secure. It was, indeed, an attempt to change the facts on the ground, an attempt to bypass the Constitution.
The Iraqi Army did not face confrontation. What was confronted were orders and instructions taken unilaterally with flagrant political motives. The army was ordered to enter a peaceful and secure town that falls within the disputed areas of Article-140. There was no specific military objective. This kind of behavior poses a danger to the Iraqi Army and to the country.
The use of the national army to settle internal disagreements and political disputes is a violation of the Constitution. Constitution Article-9 states, “The Iraqi armed forces and security services will be composed of the components of the Iraqi people with due consideration given to their balance and representation without discrimination or exclusion. They shall be subject to the control of the civilian authority, shall defend Iraq, shall not be used as an instrument to oppress the Iraqi people, shall not interfere in political affairs, and shall have no role in the transfer of authority.”
Kurdistan Region representation offices abroad
In his remarks, the Prime Minister also talks about the opening of diplomatic offices abroad by the Kurdistan Region and describes them as a violation of the constitution. Once again, let the Constitution be the guide. Article-121 says, “Offices for the regions and governorates shall be established in embassies and diplomatic missions in order to follow cultural, social, and developmental affairs.”
Thus, the Constitution allows the establishing of diplomatic offices abroad. The expression “Offices for the regions and governorates shall be established” in this article implies that the initiative would be either from the Region or the federal government. Most probably this implies that the offices shall be established jointly by the two parties.
We cannot claim that the federal government has not taken any steps to initiate this process, and we are also not claiming that we do not share any of the blame for this. But foreign policy is the exclusive responsibility of the federal government and the federal government should have taken the initiative.
This issue requires examination of past practices and current requirements.
Part of the Kurdistan Region was liberated territory since 1991 and operated autonomously in accordance with UN Security Council Resolution 688 until the overthrow of the former regime in 2003. The Iraqi government unilaterally withdrew all administrative structures from the Region in October 1991. Legal and administrative institutions such as the regional parliament and the regional government were established following internationally-observed free and fair regional elections in May 1992.
The former Iraqi opposition parties, including the Prime Minister’s own party, dealt with the Kurdistan Region as a liberated part of Iraq. In late 1992, the Region hosted the largest gathering of Iraqi opposition parties. It was at this conference that the principle of federalism was formally proposed and adopted for Iraq.
During that time, there obviously was no diplomatic representation for the Kurdistan Region or other Iraqi opposition parties in Iraq’s embassies abroad. The opposition parties, including those of the Region, opened offices in a number of countries and the representatives of the Kurdistan Region abroad were among the most active.
Because of the large number of Iraqi Kurdish communities abroad, the Kurdistan Region’s representatives played an important role in helping to shape public opinion against the regime of Saddam Hussein. They were always available to help all Iraqi opposition parties, including the party of the Prime Minister.
The realities of Iraq, the existence of large Kurdish communities outside the country, and the need to shape public opinion abroad, all were factors that obliged us to have representation abroad. And now, we are ready to discuss and find a new arrangement for these offices, as soon as possible. We are also ready to take the initiative and propose our views, especially after the recent adoption of the foreign service law by the Iraqi parliament.
Abiding by the Constitution
The Kurdistan Region Presidency and the Kurdistan Regional Government are fully ready to enter negotiations to resolve all outstanding issues based on the Constitution. All sides, including the party of the Prime Minister, feel that the whole process is not moving in the right direction and that something needs to be done.
By acknowledging this situation, five committees have been established to determine a way forward on the contentious issues of consensus government; concept of partnership and the decisionmaking process; matters pertaining to security and the army; the problem of disputed areas; foreign policy; and the problems concerning the hydrocarbon law and budget. These five committees are composed of representatives from each of two Kurdistan parties, the Islamic Supreme Council of Iraq, the Iraqi Islamic Party, and the Islamic Dawa Party. We will abide by the recommendations of these committees.
A great deal is at stake. The Prime Minister calls on everyone to abide by the Constitution. In 2006, he described the Constitution as “among the best constitutions in the world because it is based on freedom, democracy, respect for human rights, and the rule of law.” In a speech on 8 November 2008, however, he said, “The Constitution was written in a hasty way and under extraordinary conditions. It limits the powers of the central government and it is feared that federalism will handicap the country.”
In other words, the Prime Minister considers the Constitution of Iraq to be the problem, a constitution which he took the oath to protect and implement. In fact, failure to abide by the Constitution is the problem.
The Prime Minister believes that centralization is the key to the problems of Iraq. Iraq’s history, however, has proven that centralization is dangerous. It has resulted in the country being controlled by a select group, and eventually by a single party and single individual.
The party of the Prime Minister was a victim of centralization. The people of southern Iraq were marginalized. The people of Kurdistan Region were considered second-class citizens. And the elite members of the Dulaimi tribe and western Iraq were brutally oppressed like others.
Not abiding by the Constitution portends the ominous:
1. The Prime Minister aims to suspend the Constitution. Despite his talk about the need to make amendments to the Constitution, what he really wants is to suspend the Constitution; a constitution which he participated in drafting and for which he has expressed admiration. The idea of suspending the constitution is a very dangerous action indeed. Amendments can be made to the Constitution and there is a mechanism set out in the Constitution for this purpose. Suspension of the Constitution is unacceptable to all parties, even those who opposed the constitution.
2. Imposing decisions of one party at the exclusion of participation in the decision-making process by other parties who are part of a coalition government. The Prime Minister applies the decisions taken by the Islamic Dawa Party (the Prime Minister’s faction) to the government. This is in violation of the Constitution and in violation of all the agreements we have. Most importantly, it is a violation of the program of the coalition government of federal Iraq.
3. Militarization of society by using the Iraqi Army for political purposes and establishing political groups armed and funded by the government. The Federal Prime Minister attempts to militarize the society and create Support Councils. In fact, these are all linked to and belong to his party. Of course, his party has the right to establish such organizations in accordance with regulations set out in the law. But they cannot be established in the name of the government and be funded and armed by the government.
4. The federal government does not rely on a law to govern the work of the Council of Ministers. The Council of Ministers doesn’t even have an agreed upon charter, so proposals and decisions are all drafted in the Office of the Prime Minister (by leaders of the Islamic Dawa Party) first and then presented to the Council of Ministers.
5. The Federal Prime Minister keeps maintaining that he is the only one in charge of the executive branch. But this is not the case when we look at Article-66 of the Constitution which says, “The federal executive power shall consist of the President of the Republic and the Council of Ministers and shall exercise its powers in accordance with the Constitution and the law.”
The Constitution has entrusted executive powers to the Council of Ministers. Prime Minister Nouri Al-Maliki is the head of the Council of Ministers. Important decisions must be made by the Council of Ministers headed by him. They cannot be taken by himself on behalf of the Council of Ministers. In the new Iraq, decisionmaking is not to be monopolized.
The Constitution requires the government to draft laws - to prepare bills and present them to the parliament for approval. Instead of doing this, the federal government continues to rely on old laws that gave the Revolutionary Command Council (established after the military coup in 1968 and acted as the ultimate decisionmaking body in Iraq before 2003) extraordinary legislative and executive powers, which is against the Constitution.
Relying on such laws that gave powers to the Revolutionary Command Council and the President is a return to an oppressive past that bypasses the Council of Ministers and the Council of Representatives (the national parliament).
The Kurdistan Regional Government is committed to the Constitution of Iraq. We are also committed to, and believe in, the principle of consensus. We respect all agreements that are in the interests of all the people of Iraq. We want democracy for all Iraq.
Iraq will remain strong when all its components are united. Iraq will progress through the strengthening of its federal foundations. It will remain a democratic country through distribution of political powers and revenues. We will continue on our march forward in providing security and peace for our people.
All this requires faith in the principle of consensus, partnership in government, and joint decisionmaking.
We reiterate that our guide to the future is the Constitution of Iraq on which we shall always rely. While the time for political niceties may well be over, we cannot – indeed, we shall not - accept anything that is contrary to the Constitution.