Amending the Iraqi constitution: Contents, political attitudes and scenarios

EPC | 08 Dec 2019

On October 28, 2019, the Iraqi parliament decided to form a committee to amend the constitution, as part of a set of other decisions agreed between the main political blocs in order to absorb the massive public anger expressed by the continuing popular protests in the central and southern governorates, but there are strong doubts that the committee can accomplish The draft amendment in four months, as well as doubts about the seriousness of the ruling political class in amending the constitution to achieve the protesters' demands for political reform.

Mechanisms for amending the constitution
The process of writing the Iraqi constitution for the year 2005 was not natural and harmonious, but was characterized by complexity and marred by many circumstances as a result of the conditions that followed the American occupation and the resultant of the process of complete uprooting the structures of the previous authority and the domination of Shiite and Kurdish forces over the new political system.
Despite the prevailing general impression that the Iraqi constitution is one of the rigid constitutions that cannot be modified due to many considerations, the most prominent of which is the requirement of approval of two-thirds of the voters in three governorates that were put under pressure by the parties to preserve the gains of the Kurdistan region, but the opportunities for amendment are possible, through two methods:
1. The exceptional method "Article 142": this article stipulated that the parliament form a committee of its members to represent the main components in Iraqi society, whose task is to report to the parliament within a period not exceeding four months that includes a recommendation of the necessary amendments that can be made to the constitution, The article also stipulated that the proposed amendments by the committee are presented to the House of Representatives for voting, and they are approved by the approval of the absolute majority of the members of the Council. The first Iraqi parliament formed on November 15, 2006 a special committee in this regard, titled "the Committee for Constitutional Amendments", but this committee was unable to complete its work on the constitutionally scheduled date.
2. The usual method "Article 126": this article stipulated that "the President of the Republic and the Council of Ministers collectively or one-fifth of the members of the House of Representatives has the right to propose amending the constitution." In general, two-thirds of the members of the House of Representatives must agree to the people's referendum and the approval of the President of the Republic, so that the The modification is complete. With regard to the articles on the powers of the regions, the article stipulated the approval of the legislative authority in the region concerned and the approval of the majority of its residents by a referendum, on the amendment.
New constitution amendment committee
Returning to the text of Article (142) of the Iraqi constitution, the House of Representatives decided to form a committee of 18 deputies, headed by a member of the National Wisdom Movement, Faleh al-Sari, in charge of amending the constitution and making proposals for a number of outstanding issues. The formation of this committee comes in light of the pressure of the popular protests that plagued Baghdad and the southern provinces, but the selection of the members of the aforementioned committee by the ruling political class raised the wrath of the rising masses, as a result of the return of the House of Representatives to the adoption of quotas in its formation, by pushing the prominent member of the "wisdom" stream For her presidency despite not having any legal background that qualifies him to manage a sensitive mission like this, except for what was considered part of the process of satisfying Ammar al-Hakim, who had previously announced the transition to opposition within Parliament. The same observation applies to other members, at a time when the demand for Iraqis to amend the constitution comes to bridge the gaps that political forces used to share power, influence and state resources, according to custom.The "sectarian" quota system under the pretext of electoral entitlement and component representation Accordingly, the demonstrators categorically rejected the House Committee, and as an expression of this refusal, they set up a tent in Baghdad's Tahrir Square, which they called the "Tent to Amend the Constitution", and all specialists were invited to attend sessions to discuss the proposed constitutional amendments by them.
There are a number of additional observations that confirm the possibility of this committee failing, among them:
1. Doubting the legitimacy of the members of the current parliament, especially since the rate of participation in the May 2018 elections was very weak, in addition to the fraud and burning of funds, and the Federal Court canceled the membership of a number of deputies in favor of other candidates.
2. The composition of the committee, which includes members distributed among the blocs and parties, which gives the political forces, which have led the country to the current impasse in which it is present, an opportunity to relocate within the institutions of governance in another way.
3. The time period specified by four months is theoretically considered a sufficient period to complete the draft amendment and present it to the referendum, but in practice this is not believed due to differences in views and partisan affiliations of the members forming it.
Constitutional articles in question
1. The writing of the 2005 constitution hastily contributed to the emergence of a number of contentious problems, in which a number of constitutional articles that did not observe the rights of all components are included, in addition to the transitional provisions that were supposed to be finally decided in 2007, most notably the article ( 140) Relating to the disputed territories, as well as articles related to the powers of the Prime Minister that are described as absolute in comparison to the powers of the Presidents of the Republic and Parliament, articles related to the oil and gas law, the sharing of financial resources, the issue of nationality and personal status, along with the Law on Parties and the Federal Court.
2. According to the statement of a member of the Constitutional Amendment Committee, MP Rashid al-Azzawi, the most important proposals for the amendment revolve around a number of points, namely:
1. The nature of the political system is “parliamentary or presidential”, whereby “Shi’ite” political forces support the presidential system, while Sunni and Kurdish political forces refuse to do so, given that the Shi’ite majority will necessarily produce a Shi’ite president, as well as causing the abolition of the prime minister’s position that is one of the sides The ruling triangle, and thus excluding the Sunnis or the Kurds from representation at the top of the pyramid.
2. Article (49) related to the number of members of the House of Representatives, which provides for the allocation of a deputy for every 100,000 people, which did not take into account the rapid population increase that added nearly ninety parliamentary seats within three electoral sessions, despite the neglect of the statistics of the Ministry of Planning that benefit That the population of Iraq is close to forty million.
3. Article (63) related to the rights and privileges of the House of Representatives, which stipulated the immunity of the deputy from prosecution during the term of the House of Representatives, and required the approval of the Speaker of Parliament to implement the arrest warrant for the deputy outside the legislative chapter. Although this article is a universally accepted basic pillar to protect the deputy from the pressures of the executive authority, in Iraq it has become an obstacle to the investigation and trial of members of the House of Representatives for the charges against them in light of the parliament’s delay in proposing lifting the immunity of dozens of its members wanted to appear before the judiciary Financial and administrative corruption cases.
4. Article (76) related to the interpretation of the largest parliamentary bloc, whose ambiguous formulation had a major role in pushing the Federal Court in 2010 to consider the largest parliamentary bloc as those that are formed under the dome of Parliament and not the electoral list that wins the largest number of seats in parliament, which was It has serious repercussions on the political scene, and citizens' confidence in the electoral process has diminished, after their right to determine the political bloc that has the right to nominate a candidate to head the government has been confiscated in favor of side agreements between the forces and parties.
5. Article (102) related to independent bodies, the most important of which are the High Commission for Human Rights, the Independent High Commission for Elections, the Integrity Authority, the Central Bank of Iraq, the Financial Supervision Bureau, the Media and Communications Authority, and the Accountability and Justice Authority, And the Federal Service Council, the bodies that the constitution stipulated that they are accountable to the House of Representatives, but the lack of specifying the type of this responsibility and the powers to appoint and dismiss members of these bodies led the former Prime Minister Nuri al-Maliki at the height of his influence in 2011 to extract a ruling from the Federal Court, linking it to the Council Ministers, apart from the purpose of forming them as supervisory bodies independent of the executive authority, which led to the control of the “Islamic Dawa Party” and the “State of Law” coalition over the presidency of all these institutions through presidents appointed by the agency, which is a general consensus to end it by explicitly stipulating mechanisms for appointing And dismiss the members for free Its administrations are not part of the process of sharing the legacy of the "Dawa" party from the special ranks and the highest positions.
6. Article (122) of the provincial councils, which the protesters are demanding to abolish completely and elect the governor directly, and the second part is the closest to verification due to its non-contradiction with the philosophy of decentralized rule on which the constitution is based, and not affecting the interests of political forces, especially the Kurdish parties.
Political attitudes towards amending the constitution
1. The Kurdish component: The Kurdish forces are trying to preserve their gains, especially with regard to the political system and the disputed areas, where the leader of the "democratic" party, Massoud Barzani, anticipated the discussions by announcing the rejection of any amendment that affected the rights of the Kurdish people, which was expressed in an explicit statement commenting on the demands of the protesters. In which he said that "what is happening now is not a result of today, but rather is the product of an accumulation of 15 years of failure, and that one of the most important problems of Iraq is the failure to implement the constitution, and if it was implemented, we would not have faced most of the past and current problems," while Barzani put the blame on the election law, calling for The need to "reconsider it to reflect the results Elections demands all components. " And it was reinforced by the position of the Kurdish MP, Diyar Tayyib, who said in a statement circulated by Al-Monitor that “amending the constitution is a difficult task and the blocs cannot agree on it in the period set by Parliament.” In a clear indication of the Kurds’s rejection of any change process that conflicts with the interests of the Kurdistan region.
2. The Turkmen component: It appears that the constitution did not do justice to the Turkmen component and give it the same rights as the Kurdish component, and even the articles that I want to be fair did not actually apply, such as Article (125), and accordingly, Deputy Turkmen Front Hassan Turan said in a statement circulated by the newspaper Asharq Al-Awsat “The Iraqi constitution has fallen victim to political consensus and half of its articles need legal legislation, which is not what happened, and even the articles that were legislated were not implemented as hoped.” Thus, the Turkmen forces seem to be more enthusiastic about amending the constitution in a way that is consistent with their political interests, and enjoys President of the Turkmen Front, Arshad al-Salihi, with a membership The current constitutional amendment committee.
3. The Sunni component: Although the participation of its representatives in the constitution writing process in 2005 came within the framework of the formal settlements imposed by the interests of the American shepherd, who was keen to ensure the blessing of the “Islamic Party” to pass the constitution promising to make the necessary amendments after the referendum on it, which gave the party gains And senior political positions as the largest representative of the Sunni component in the political process, at the expense of the rest of the Sunni parties, which all seem today not concerned with the Shiite-Shiite conflict, whose demand to amend the constitution is one of its manifestations, in addition to the lack of interest in the Sunni component in the transition from the parliamentary system to the presidency For fear of the uniqueness of Shiites governance, and the loss of opportunities to participate actively in the state administration by ensuring access to a fixed percentage of the ministries and the post of parliament speaker.
4. The Shiite component: Of all the items that the protesters, including intellectuals and constitutional law experts behind, demanded to amend in order to achieve political reform, the Shiite political forces were not interested in anything other than converting the political system from a parliamentary to a presidential one, which is consistent with the positions of the parties within the "conquest" coalition , Which the coalition leader Hadi al-Amiri expressed explicitly by saying: "The parliamentary system proved its failure and was a cause of quotas and corruption," as well as similar calls by the "State of Law" coalition.
Possible scenarios for amending the Iraqi constitution
The first scenario: amending the constitution in the current parliamentary session

This scenario assumes that the constitution will be amended in the current parliamentary session, in a way that satisfies the insulting parties on the current political scene without addressing the issues that affect the needs of the Iraqis and was the reason In their continuing suffering, as evidenced by the emergence of a committee from within the influential parties that undertakes the amendment process, in addition to the discussions held by the United Nations Special Representative to Iraq, Henness Blaskhart with political leaders, led by President Barham Salih, who announced "his intention to hold a national conference for Review the constitution and its clauses. " While the Committee on Amending the Constitution revealed the arrival of UN experts to Iraq to discuss the amendment procedures, and there are a number of other data that support this scenario, among them:
1. The current parties' attempt to amend the constitution in the current parliamentary session to avoid any changes that may result from the upcoming parliamentary elections, whether early or regular scheduled for 2022, in light of popular discontent and the popularity of many of them has declined significantly, which threatens their existence on the political scene.
2. There is a group of parties that consider making some changes in the form of the political system in their interest. As long as the “Shi’ite” political forces were close to Iran, such as the “Dawa” party led by Nuri al-Maliki and “Asaib Ahl al-Haq” led by Qais Khazali, and finally Hadi Al-Amiri, leader of the "Al-Fateh" coalition, supports the idea of ​​changing the system from a parliamentary to a presidential in the hope of limiting the ability of the Sunni forces and Kurdish parties to trade-off giving them confidence to the Prime Minister and his government for political and economic gains, and thus freeing the hand of the popularly elected president of the republic to draw the supreme state policies without fear Whoever withdrew confidence from him Parliament.
3. The need to overcome many lapses and loopholes in the formulation of some articles, which successive governments have been able to exploit to violate the spirit of the constitution in important aspects such as the separation of powers, the maintenance of the independence of independent bodies, and the violation of public rights and freedoms.
The second scenario: amending the constitution in the next parliamentary session (weighted)
This scenario assumes that the issue of amending the constitution is referred to the next parliament, whether that may be formed after early or regular elections, bearing in mind that the current parliament is illegitimate from the point of view of many due to the low participation rate and the accompanying processes of falsifying results and burning funds, in addition to that The protest movement sees in the political blocs represented in Parliament the reason for the devastation in the country, which means the emergence of a widespread popular rejection of any amendment that emanates from the current parliament.
This scenario is supported by a number of data, the most prominent of which are:
1. At the level of the political class, there is no article at the moment that has full political consensus for the amendment because each party or component seeks to make changes commensurate with its aspirations, especially with the Kurdish veto on many of them.
2. Long years passed and no agreement was reached on amending the constitution. How can such an agreement happen in four months?
3. The protestors protesting in the streets of Baghdad and other governorates rejected the committee that emerged from Parliament, confirming their exit in order to overthrow the ruling class and not giving them the authority to draw the milestones of the next stage; and to give priority to the resignation of the government and the enactment of an electoral law based on direct individual election and multiple departments with full international supervision, as well On the re-formation of the Independent High Commission for Elections from judges and independent personalities, similar to the commission that was sponsored by the United Nations in 2004.

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