The Iraqi Prime Minister’s recent request for American assistance opens the possibility of more than military aid to bring stability to the country. In the previous post, we asserted that greater stability can be achieved by strengthening institutions of local government. These changes can be effected with adjustments in how the Iraqi Constitution of 2005 and current law is interpreted, and the changes imagined fall into one of three categories: political autonomy, financial autonomy and dispute resolution. Before any of those changes can be entertained, however, it is necessary to recognize and appreciate the different systems of governance described by that constitution. As with everything else in country, it’s complicated.
In fact, the Constitution clearly articulates four distinct systems of governance. The first and most obvious is the national government. The Constitution actually prefers the word ‘federal’ government, employing it eleven times (exclusive of titles), and sixty eight articles enumerate the powers of its various institutions, among them a national parliament, referred to as the Council of Representatives (COR), a set of ministries, headed by a Prime Minister, and federal courts, significantly under the control of a Minister of Justice (as would be typical of a ministerial or parliamentary system of national governance). (Articles 47-115). While mentioning only a handful of exclusive powers, such as foreign affairs and national security (Article 110), the Constitution nevertheless avers that federal officials and federal authorities bear responsibility for the unity of the nation (Article 109).
The second system of governance recognized by the Constitution is regional. Article 119 describes the process by which one or more provinces could petition to merge into a region, and the theoretical possibility aside (and Basrah Provincial Council’s resolution declaring itself a region after a tiff with the Prime Minister when the Supreme Court struck down their attempt to impose a surcharge on the issuance of passports in the summer of 2010), none of the provinces have availed themselves of the option. Indeed, the only region in the country is the one that existed before the U.S. invasion and was recognized first in the Iraqi Constitution of 1970 and subsequently in Article 117 of the Constitution of 2005 that replaced it. That of course is the Kurdish Regional Government (KRG). As proof that the Kurdish Region is a recognized government, the Constitution acknowledges that it shall have its own constitution (Article 120) and separate executive, legislative and judicial branches (Article 121). Article 114 of the Constitution expresses the powers to be ‘shared’ between the national government in Baghdad and the regional government in Erbil, and because of that recognition of autonomy it may be rightly concluded that the Iraqi state is truly federal in respects to the KRG. The Constitution does not support the same conclusion with respect to the provinces, however.
The third system of governance recognized by the Constitution is in fact provincial. Where the Constitution acknowledges that the powers exercised by the national and regional government are ‘shared,’ it offers no similar latitude to the provinces. Instead, it extends them only the courtesy of ‘cooperation,’ ‘coordination’ and ‘consultation’ in Article 114, and rather than attempting to define their policy-making responsibilities as it does with the regions, avers that the national government is to regulate them in a future law (Article 122). Despite the promise that that law should grant them ‘broad administrative and financial authorities in accordance with the principle of administrative decentralization,’ only a regional government is empowered by the Constitution of 2005 to make laws for its own governorates. In contrast, the Constitution states that the provinces are to be regulated by national law. Because the powers of the regions listed in Article 114 are often conflated with those of the provinces, however, the subordination evident in the Constitution’s only articles dedicated to ‘governorates not incorporated in a region’ is frequently missed. But the regulation of the provinces is consistent with both Article 13 that declares the Constitution to be the supreme law of the land (and federal law to be of secondary importance) and Article 109 that pronounces federal officials to be responsible for the unity of the nation. Together, these expressions of central or national government priority over that of the provinces indicates that while the Iraqi state might be federal with respects to the Kurdish region, it is unitary with respects to the provinces.
There remains a fourth system of governance in Iraq, and that system is municipal. In the same Article 116 that is often read to mean all administrative units in the country are federal and decentralized, the Constitution recognizes a separate status for the national capital. Article 124 provides that the capital shall be regulated by a law, but unlike the Law of Governorates, promulgated in 2008 pursuant to Article 122 to regulate the provinces, a Baghdad Capital Law has never been passed, leaving the Amanat (as the mayoralty is known) operating on the same principles (and more controversially within the same boundaries) as it did before the invasion.
So, in different articles and with differing levels of deference, the Iraqi Constitution of 2005 distinguishes systems of governance as national, regional, provincial and municipal. Facile assertions that provinces and regions alike share power with a ‘federal’ government notwithstanding, the Iraqi Constitution distinguishes them. Their relationships to the central government are different, proving yet again that as everything else in Iraq – “it’s complicated.”