HCL-Structure Of The Iraqi Constitution

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Subject HCL-Structure Of The Iraqi Constitution
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Ii Structure Of The Iraqi Constitution
Sat, 17 Sep 2011 11:41:33 | Oil and Gas in Iraq
http://www.reclaimingtheculture.org/oil-gas-in-iraq/ii-structure-of-the-iraqi-constitution.html


Keeping firmly in mind the contextual background of the dispute between the central governmental authorities and those in the region of Kurdistan over the right of subcentral units to enter into oil and gas development agreements, the basic structure of the Iraqi Constitution can now be described.28 Although the particular goal of this chapter is clarification concerning not only the constitutional power of subcentral units to negotiate such agreements, but also the nature of the Constitution's expressions on the distribution of revenues and on its distinction between "present" and "future" oil and gas fields, the reader is best served by having some general understanding of the overall structure of the Iraqi Constitution. In the broadest of senses, and apart from its final and transitional provisions, the Constitution is broken into five parts: the statement of so-called fundamental principles; the explanation of rights and liberties; the distribution of powers between the branches of government; the identification of the powers of the federal authorities; and the identification of powers held

24 See Seven new petroleum contracts for the Kurdistan Region announced by Ministry of Natural Resources; five existing contracts reviewed, in Iraq Updates (Nov. 7, 2007), available at www.iraqupdates.com/p_articles.php/article/23731 (accessed May 6, 2008).

25 See id.

26 See South Korean consortium to explore Iraqi Kurdistan oilfield, in Iraq Updates (Nov. 13, 2007), available at www.iraqupdates.com/p_articles.php/article/23925 (accessed May 6, 2008).

27 See Baghdad to exclude oil firms with KRG deals - Oilmin, in Iraq Updates (Nov. 15, 2007), available atwww.iraqupdates.com/p_articles.php/article/23995 (accessed May 6, 2008); Baghdad slams KRG oil deals, in Iraq Updates (Nov. 15, 2007), available atwww.iraqupdates.com/ p_articles.php/article/24030 (accessed May 6, 2008).

28 For an English-language translation see Iraqi Constitution, available at www.export.gov/iraq/ pdf/iraqi_constitution.pdf (accessed Nov. 15, 2007). See also translation available at www.krg .org/articles/detail.asp?1ngnr=12&=0430000&=107&= 12329 (accessed Sept. 20, 2008).

by subcentral authorities. These parts appear in the Constitution's Sections 1-5, respectively. The final and transitional provisions appear in Section 6 of the Constitution. Obviously, for present purposes, the most significant portions of the Constitution will involve the powers designated as belonging to the federal authorities, and those said to exist in the subcentral governmental units.

Prior to taking up those specific powers in sweeping, outline form, however, a few brief comments should be offered about the Constitution's provisions on fundamental principles, rights and liberties, and distribution of powers between the branches of government. With respect to some of the fundamental principles, Islam is guaranteed its place as the official religion and the foundation of all legislation;29 law is declared sovereign over all;30 transfers of power are directed to be peaceful and through democratic processes;31 terrorism is denounced;32 and Baghdad is designated the nation's capital.33 More relevant here, though, are both articles 1 and 13. Article 1 declares Iraq to be "a single federal,. .. state,"34 and article 13, First, that the "Constitution is the preeminent and supreme law in Iraq and shall be binding in all parts of Iraq without exception."35 Article 13, Second, follows this by noting that any law at the central level, or constitutional provision or law at the subcentral level, "that contradicts this Constitution shall be considered void."36 The combined effect of articles 1 and 13 is to look towards the nation pulling together, and to elevate the provisions of the nation's Constitution above all inconsistent measures at either the federal or subcentral level.

With respect to rights and liberties identified as deserving of mention, the Constitution indicates that all Iraqis are considered equal;37 they enjoy the rights of life, security and liberty;38 and they have protection of their personal privacy.39 The judiciary is also entitled to complete independence,40 and individuals before it are considered innocent until proven guilty.41 Furthermore, all Iraqi citizens, whether male or female, are entitled to participate in public affairs, including by voting and serving in public office.42 The Constitution at length also protects what it designates as economic, social, and cultural liberties,

29 See Iraq Constitution, id. at art. 2.

including the right to work,43 to receive health care44 and education,45 and to expect an environment that is safe and free from toxins.46 It also provides for freedom of expression47 and association,48 as well as religion and travel,49 and the rights not to be displaced or deprived of the ability to return to one's homeland.50

In terms of the Constitution's distribution of powers between the various branches, it recognizes the familiar legislative, executive, and judicial trifurca-tion and declares the principle of separation of powers as the operative rule.51 The legislative branch consists largely of the so-called Council of Representatives, elected by the Iraqi people to voice and address their concerns.52 The Council of Representatives is vested with many common legislative powers,53 and it is also empowered to elect the President of the Republic.54 In most areas the President's executive powers are clearly distinct from the legislative powers of the Council of Representatives.55 The executive branch itself, though, exercises power both through the President and through the President's Council of Ministers (i.e., cabinet).56 The Council of Ministers, from which the Prime Minister is selected, is formed at the request of the President, but largely by the efforts of the controlling bloc in the Council of Representatives.57 The powers of the Ministers are distinct from those of the President and quite substantial.58 When the Ministers' powers are combined with those of the President, a complete picture is obtained of the reach of the executive branch's constitutional authority.

The judicial branch authority enunciated in the Constitution consists of several aspects. Loosely, these can be described as administrative or managerial, and adjudicative. The administrative or managerial aspect of the judicial branch authority is reflected in the constitutional provisions that speak of a so-called Higher Juridical Council, a body charged with managing and supervising the federal judiciary,59 nominating the Chief Justice of the Federal

53 See id. at art. 61, First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth.

Supreme Court and the members of the lower federal courts, as well as the chief state prosecutor,60 and preparing the federal judiciary's budget for submission to the Council of Representatives.61 The adjudicative aspect, on the other hand, involves the Constitution's provisions reiterating the independence of the judiciary,62 noting that the Federal Supreme Court is to have jurisdiction over constitutional questions, the application of federal law, the settling of disputes between the federal government and subcentral governmental entities, and disputes between subcentral entities themselves.63

Having outlined the basics of the Iraqi Constitution's provisions that address fundamental principles, rights and liberties, and the distribution of powers among the legislative, executive, and judicial branches, attention is now turned to Sections 4 and 5, dealing with the powers of the federal government and those of the subcentral units. Any detailed examination of specific questions will have to await upcoming portions of this chapter. Nonetheless, the present aim is to provide a broad-brush picture of the relevant constitutional provisions, emphasizing those bearing most directly on the important matters significant to this chapter - subcentral governmental authority to enter oil and gas development agreements, revenue distribution, and the distinction between "present" and "future" oil and gas fields.

The powers of the federal government are spelled-out in some of the provisions spanning articles 109 through 115 of the Iraqi Constitution. Those provisions not touching at all on powers of the federal government, or doing so only with respect to matters beyond the scope of this study, would be articles 109 and 113. Consonant with the directive in article 1 of the Constitution that Iraq is considered a single, federal state,64 article 109 opens by obligating the federal authorities to preserve the "unity... of Iraq and its federal democratic system."65 Article 113 addresses items and places of archeological or cultural significance, and it provides the federal government with jurisdiction and authority over such, though advising cooperative efforts with regions and governorates.66 The remaining five provisions break into four categories: provisions listing powers designated as "exclusive" to the federal government; provisions denoting matters where federal authorities are to share competence with subcentral governmental units; provisions speaking very explicitly to the matter of oil and gas; and, finally, a residual provision addressing powers not exclusive to the federal government, and conflicts in instances where both federal authorities and subcentral units share competency.

64 See text accompanying supra note 34.

65 See Iraqi Constitution, supra note 28 at art. 109.

Article 110 contains a lengthy listing of powers styled as "exclusive" to the federal government. Without specifying them all, they include foreign policy matters, whether diplomatic or economic in nature,67 national security concerns,68 fiscal policy and commercial matters involving the crossing of regional or governorate boundaries,69 investment and budgetary concerns,70 policies affecting water coming into Iraq,71 and matters of citizenship and population.72 As for areas of federal competence shared with subcentral units, article 114 provides that some of these include the management of customs, the regulation of the main sources of electricity, the development of environmental policy, and the formulation of growth and planning policy, as well as internal water policy. Interestingly, the residual provision of the Constitution, article 115, second sentence, provides that in the areas of shared competency, "priority" is to be accorded subcentral law in the event of a conflict with federal measures. That same provision indicates, in its first sentence, that powers not specified as being assigned exclusively to the federal authorities are possessed by the subcentral units.73

In terms of the provisions of the Constitution speaking explicitly to the matter of oil and gas, article 111 and 112 are key. The language of the former recognizes the importance of the nation's oil and gas resources to the restoration of stability and the eventual development of the country. And as other provisions of the Constitution seem to suggest a sense of equality in a nation populated by diverse ethnic and sectarian groups, the language endorses the opportunity of all to share in the benefits of Iraq's oil and gas resources. The exact language of article 111 provides that "[o]il and gas are owned by all the people of Iraq in all the regions and governorates."74 As if endeavoring to both provide content to the general notion articulated in article 111, and dovetail with the basic objective of articles 109 through 115 of distributing particular powers to the federal government, with some to be shared with subcentral units, article 112 holds forth with a degree of specificity on oil and gas and revenues from its production and sale. Article 112 does so through two separate paragraphs, the opening one dealing with the management of oil and gas activity and the distribution of the revenues associated with such,75 and the latter with the partnership between the federal government and the subcentral units in the formulation of long-term development policies and objectives.76

71 See id. at art. 110, Eighth

Article 112, First, indicates that the federal government, in cooperation with the subcentral units, is to manage oil and gas extracted from so-called present fields.77 However, it attaches a proviso to this grant of authority. The proviso relates directly to the fact that oil and gas is recognized as providing the lion's share of revenues likely to be generated by Iraqi commercial activity. As a consequence, the proviso conditions the federal government's authority in the management of oil and gas from present fields upon the meeting by the federal government of an obligation to disburse revenues in a fair manner that takes into account population distribution in the nation, a special allotment for regions of the country damaged by the Saddam Hussein regime or thereafter, and the need to ensure balanced development. The language of this initial paragraph of article 112 drives home the importance of revenue disbursement by concluding with the directive that the matter "shall be regulated by a law." Thus derives the requirement for a revenue-sharing law like that discussed later in Chapter 5.

Article 112, Second, empowers the federal government, not on its own, but with the subcentral governmental units, to conceptualize and develop the long-term, strategic policies relative to permitting oil and gas to be tapped in a way that produces the largest benefit for the Iraqi people. It also directs that the strategic policies concerning oil and gas activity call for employment of the most advanced techniques and market principles, all while doing so in a way that encourages investment. A major significance of this second paragraph resides in the fact it relates to long-term oil and gas development policies, whereas article 112, First, concerns the more immediate management of oil and gas extracted, and then only from the so-called "present" fields. Both article 112, First, and 112, Second, though, begin with emphasizing that it is the federal government -albeit in collaboration with the subcentral units - that is empowered to act in the respective areas of competence.

Moving beyond the constitutional powers of the federal government, articles 121, First, and 122, Second, set forth the powers of the subcentral units, regions, and governorates not organized into regions. These two provisions are situated among a host of ten provisions. Without elucidating on the vagaries of all of these provisions, it is worth noting they are broken into two broad categories: those addressing regional governmental units, and those dealing with governorates not organized into regions. Two other provisions take up the matter of Baghdad being its own independent region78 and the matter of protection accorded to various nationalities, including the Turkmen, Chaldeans, Assyrians, and others.79 It is, however, important to call attention to the fact that a couple of the provisions categorized as those addressing regional governmental units acknowledge the ability of governorates not organized into regions to be able to

so organize through a referendum process.80 Historically, Iraq has been divided into a number of political and administrative regions. Currently, though, under the terms of the Constitution, only the Kurdistan Region is formally recognized as a region,81 and there have been serious problems getting the referendum off the ground regarding whether Kirkuk would be able to join that Kurd region.82 The point is that referenda on regionalization of other areas are complicated and controversial matters.

With particular respect to article 121, First, and article 122, Second, the former indicates in very explicit terms that regions have the constitutional power to exercise legislative, executive, and judicial authority in all areas where the Constitution has not assigned exclusive power to the federal government.83 The follow-on paragraph of article 121 builds on the earlier expressed idea that, where the federal and the subcentral units have shared powers, the measures of the subcentral units are to be accorded priority.84 After addressing regions specifically, however, the paragraph notes just that regions can amend the application of a conflicting federal measure within the region, whenever it concerns matters outside the exclusive authority of the federal government.85 Article 121 then succeeds this paragraph with another weighing-in on the distribution of revenues. Specifically, it provides that regions (as well as governorates) are to be allocated a fair share of national revenues, so as to permit them to discharge their responsibilities. Moreover, the allocation is to take account of the resources, needs and population of each region and governorate.86

In spelling out the constitutional powers of governorates not organized into regions, article 122, Second, notes that they have "broad administrative and financial authorities" to allow them to manage their own affairs. As is indicated, this is consistent with the basic thrust of establishing a decentralized administrative structure in Iraq.87 What is noticeably absent from this grant of constitutional power is any reference to executive, legislative, or judicial authority being vested in governorates. Under the terms of the Constitution, it seems clear there exist specific areas of executive, legislative, and judicial authority exclusive to the federal government. Where the federal government is not said to have exclusive authority, regional governmental units - such as the KRG -possess the power that remains. In other areas, the federal government is to share power with the regions. Governorates not organized into regions, however, seem

82 See Iraq: Kirkuk Referendum Delayed by Six Months (Dec. 21, 2007), available at www.rferl .org/featuresarticle/2007/12/43A4F894-4431-47CF-A120-0573F7412542 html (accessed May 7, 2008).

83 See Iraqi Constitution, supra note 28 at art. 121, First.

84 See text accompanying supra notes 72-73.

85 See Iraqi Constitution, supra note 28 at art. 121, Second.

to remain subject to federal executive, legislative, and judicial authority, because they possess no more than the administrative and financial authority needed to handle their own day-to-day affairs.

In concluding this broad and sweeping description of the basic structure of the Iraqi Constitution, it should be noted that the only provisions to address oil and gas in particular are articles 111 and 112. Both of these appear in the portion of the Constitution enunciating the powers of the federal government. Not a single provision in the portion stating the powers of the regions or governorates explicitly mentions oil and gas as such. In spite of this, three points require emphasis. First, there can be no doubt that in article 112 in particular, the federal government is said to have a conditional role with respect to managing oil and gas extracted from present fields, with that role being predicated upon its satisfaction of revenue distribution obligations. Second, the language of the Constitution also seems clear in noting that executive, legislative, and judicial powers not assigned exclusively to the federal government are granted to the regions. And third, article 112 makes plain that both regions and governorates have a role to play in connection with the federal government's management of oil and gas extracted from present fields, as well as the development of long-term, strategic policies of the federal government relating to developing the nation's oil and gas resources.