Collapse of Iraq’s Ba’athist regime of Saddam Hussein allowed the world to see an Iraq much different from what it was in the past. The first significant step in post-Saddam time was presenting a new constitution that was approved in 2005. But since it approval, the Iraq constitution has been a debate case of the opposing Iraqi parties, and so far it failed to get an agreed-upon amendment. As the process to review the new Iraqi constitution started, the political discontent of the Sunni Arabs began, and it was the consistency between the Shiite and Kurdish parties that allowed completion of constitution amendment process, and subsequently it winning a major vote of the nation in the referendum in 2005. However even after enactment of fresh constitution and the post-2003 government’s winning of legitimacy, a number of articles of the constitution prepared the ground for eruption of dispute and, later, crisis in Iraq. Article 140 is an example of a sticking point in the country’s constitution.
Article 140 is taken from the Iraqi interim constitution’s Article 58. The article was included in the constitution following major political developments in post-2003 Iraq. Broken in three clauses, the Article 58 was put into interim constitution, aiming at removing the discrimination of the Ba’athist regime. The first clause calls for the transitional government to move in association with Dispute Resolution Council to eliminate all forms of discriminations by the toppled regime against the Kurds and Shiites of the country. The clause secured for the Iraqi natives the right to get back their seized properties, receive compensation, hold job opportunities, and freely express their national and racial identity. The second clause calls for returning the administrative borders of Iraq’s provinces to pre-Ba’athist regime time of 1968. The third clause demands an ultimate settlement for the disputed territories including Kirkuk. This urges implementation of the second clause until the mentioned plans are implemented and a transparent census is conducted by a direct call from residents of Kirkuk.
The Article 58 resurfaced under the new name of Article 140 following approval of permanent constitution of Iraq. Two key clauses were included in the Article 140 of the permanent constitution that critically made grounds for divisions. The divisions finally led to calls for a new amendment of constitution after 2007. The first clause tasks the government with arranging for conclusion of implementation process of Article 58 of the interim constitution with all of its clauses. The second clause foresees implementation of Article 58 in three stages of normalization, census, and finally conducting referendum in Kirkuk and other disputed areas in a bid to address the demands of the residents. The deadline for completing the process was determined 31 December 2007. The law enforcer was the government. While the deadline for implementation of clauses of Article 140 was until end of 2007, after more than 9 years, even its initial stages are not implemented yet. Many of the Arab and Turkmen political leaders highlight the Article 140, arguing that Article 58 was unfairly included in Iraq interim constitution. Between 2007 and 2008 the Iraqi parliament raised the bid for reforming the country’s constitution. But until now no serious amendment is introduced to the constitution. Why the constitution amendment process is faced by impediments in Iraq? To answer this significant question, two major reasons must be taken into consideration: the ideality and deterrence of the disputes.
Iraq’s interim constitution included two key phrases of democratization of the domestic policy and peacefulness of the foreign policy. With some changes, they became the backbone of the permanent constitution of Iraq. This constitutional outlook won approval of a majority of the Iraqi political players. It presented itself as a strategic aim for building the future of Iraq. It must be kept in mind that the two principles are, in fact, in accord with the American liberalism or “democratic peace theory” which notes that the democracies never engage in fighting each other. But the social, and mosaic-style, structure of Iraq under duress of conditions and time cannot hold an uncontested control over the groups without using some levels of violence. The Kurds, Shiites, and Sunnis are the major political players in the country. They hold different and sometimes conflicting demands and interests. On the other hand, since 2007 up to now an enthusiasm for nationality has failed to take the place of a sense of belonging to sub-identity. In other words, the Iraqi constitution has aimed at diversity, something in full accordance with civic nationalism. This model, however, failed so far to find place in the Iraqi society.
The deterrent differences
Although Article 142 of the constitution defines the mechanisms and methods for amending the constitution, differences have prevented the parliament’s political blocs from doing so, though they have made efforts to do so. In 2006, the Iraqi parliament formed another committee with the duty of amending the constitution but it failed to reach an ultimate agreement on the articles that needed amendment.
The difference of the Iraqi parliament’s blocs is completely justified. But due to the significance of forming the committee and the articles that needed amendment, the political blocs must determine that during the 11 years of implementation of new constitution what articles have proved productive and useful. But it must be taken into account that some constitution articles are not implemented yet, like the Article 140 which urges normalization of status of such ethnic groups as Arabs, Turkmens, and Kurds in regions like Kirkuk where they are dispersed. The article is broken into three stages: restoring the former status, conducting census of the earlier and current population, and holding referendum.
Furthermore, the articles that define the identity of Iraq are subjected to amendment because the constitution asserts an Arab identity for Iraq.
Additionally, some argue that the powers of the PM must be reduced. The subtracted powers must be distributed between the PM and the parliament speaker. Perhaps the most controversial articles of the Iraqi constitution are as follows: the Article 140 which is linked to structure of the regions especially Kirkuk, the powers of the president, distribution of financial sources as well as sharing of power, the law of provinces, the multiple citizenship issue, and the individual rights.
According to Article 142 of constitution of Iraq, a referendum on the amended articles is only called successful if a majority of the voters in a national level approve it. It is unsuccessful if two thirds of voters from three or more provinces reject it. This means that even if 15 provinces accept the amendment and two thirds of other three provinces reject it, then the reforms are not introduced to the country’s constitution. On the other side, the Iraqi constitution holds no ideal or a specific goal in terms of the foreign policy. In fact, the foreign policy is slighter in comparison to the domestic policy in terms of significance in the constitution. Perhaps it is for this reason that Iraq is plagued by home conflicts. Without setting itself free from the chains of the domestic disputes Iraq would not be able to have a say in foreign policy.
The constitution asserts that the amendments must win the whole approval of the Constitutional Reforms Committee. In other words, these conditions have made the process of review and amendment of constitution highly difficult. On top of intense differences about Kirkuk, the powers of president and parliament speaker, the provinces law, dual nationality, the individual rights, and moving from parliamentary to presidential system, the deep gaps over specifications and identity of the government must be added.