This week Rudaw and other news sources reported that “Iraq’s Federal Court ruled…that no article in the constitution allows partition or the separation of any part of the country, with the Iraqi prime minister calling on Erbil to make its position on the ruling clear.”
The so-called “Federal Supreme Court of Iraq” is nothing of the sort, however. Article 92 of Iraq’s constitution states that, first, “The Federal Supreme Court is an independent judicial body, financially and administratively,” and second, “The Federal Supreme Court shall be made up of a number of judges, experts in Islamic jurisprudence, and legal scholars, whose number, the method of their selection, and the work of the Court shall be determined by a law enacted by a two-thirds majority of the members of the Council of Representatives.”
Such a law was never passed. Instead, the “Federal Supreme Court of Iraq” functions under Ba’athist-era legislation from the 1970s, and its Chief Justice -- Medhat al-Mahmoud – has participated in Da’awa Party (the Shiite political party of Nuri al-Maliki and Haidar al-Abadi) meetings and was Saddam Hussein’s legal advisor for several years. Mr. Mahmoud was accused by numerous professional legal associations of falling under former Prime Minister Maliki’s control since 2013, with some of his rulings (such as arrest warrants for prominent Sunni politicians in Iraq) announced by Da’awa party leaders before his court itself had announced them.
Former Prime Minister Maliki and now Prime Minister Abadi never respected Article 92 of the Constitution because the two-thirds majority required to form a legal federal court would have forced them to give Kurds or Sunnis a say in how the court in set up and how it functions. One cannot, in other words, have a “federal” court with no buy-in from the various components of the supposed federation such as the Kurdistan Region and various Sunni Arab-majority governorates.
This leads to today’s somewhat ironic situation in which a court with no real legal standing makes pronouncements on the legality of Kurdistan’s recent referendum for independence, among other things. It does so by cherry-picking articles of the constitution that Mr. Abadi and his fellow Da’wa Shiites in Baghdad like and ignoring others. As Rudaw reported on November 6, “According to Elias Samook, a spokesperson for the Federal Court, the court’s decision ‘comes from analyzing Article 1 of the constitution. It sums up that Article 1 and other related constitutional articles stress the territorial integrity of Iraq.’ Samook added: ‘Article 109 of the constitution commits all the federal authorities to protect the integrity of the state.’”
The kangaroo court thus ignores preamble of the constitution which states that “We, the people of Iraq, of all components and across the spectrum, have taken upon ourselves to decide freely and by choice to unite our future…” Instead they focus on Article 1, which states “The Republic of Iraq is a single federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic”, but apparently forget the second half of this same article which adds “and this Constitution is a guarantor of the unity of Iraq.” A court whose very existence (in place of a legitimate federally-established and legal court) speaks to Baghdad’s violation of the constitution, presumptuously issues verdicts about the legality of Kurdistan’s referendum – a referendum that was engendered by the “federal” government in Baghdad’s failure to uphold close to seventy of the constitution’s 144 articles.
The court thus also selectively reads Article 109 ("The federal authorities shall preserve the unity, integrity, independence, and sovereignty of Iraq and its federal democratic system") to ignore the part about "federal democratic system" and just focus on "unity and integrity." Unfortunately, one cannot have unity and integrity after ignoring the "federal democratic" part.
Article 65, which required the creation of a second house of parliament (the “Federation Council”) through which the regions and governorates could pursue their interests, was likewise never enacted by Baghdad. Articles about shared competencies over oil and gas were ignored by Baghdad, and articles about the rights of governorates to form new regions (as the Sunni Arabs tried to do after 2012) were forcefully blocked by Baghdad. While the constitution does not allow nor forbid Kurdistan’s recent referendum, it does in Article 140 mandate a referendum in the disputed territories to be held by December 2007 – which like the other articles it doesn’t like, the government in Baghdad ignored. The list of Baghdad’s violations is long indeed, as laid out by an analysis from the Kurdistan Regional Government (http://cabinet.gov.krd/uploads/documents/2017/Constitutional_violations_Sept_24_2017.pdf).
Unfortunately, this is the Iraq that the United States, Britain, the United Nations and others are demanding the Kurds remain a part of. No matter how abusive this marriage becomes, with Prime Minister Abadi now looking like little more than a more polite version of Maliki or even of Saddam, everyone with the exception of Israel demands that the Kurds submit in perpetuity. Instead of putting pressure on the “federal” government to respect its own constitutional commitments, Washington arms its latest man in Baghdad, enables the Iranians and keeps on demanding that the Kurds obey.
All of which just goes to show: “Justice” is only for those who have the will and means to fight for it.
David Romano has been a Rudaw columnist since 2010. He holds the Thomas G. Strong Professor of Middle East Politics at Missouri State University and is the author of numerous publications on the Kurds and the Middle East.
The views expressed in this article are those of the author and do not necessarily reflect the position of Rudaw.