samedi 12 avril 2008

The Constitution of Iraq and the Issue of Kerkuk

* Arshad Al-Hirmizi

* Translated by Researches Department of Kirkuk Foundation

The constitution of Iraq is undergoing a serious crisis due to its inherently vague perspective. It was supposed to be the source of all rules and the umbrella for democratic principles promised for a new Iraq. Yet, a state of imbalance prevails due to the ephemeral calculations or shortsightedness of some groups that wanted to monopolize the gains, raising the limits of their demands to avoid losses at the time their gains were achieved but at the expense of others.

These groups overlooked the nature of passing the constitution, a document that represents a social contract where each side makes certain concessions to reach a satisfactory settlement for all, or the majority, of the Iraqi people. They also overlooked the fact that the constitution will not remain an unalterable document should it not meet the interests and aspirations of all the people. This is what prevented unanimous agreement among Iraqis in defending preceding constitutions, resulting in their being short-lived.

The Iraqi constitution, unfortunately, has become a two-way track in stating general principles, rights, and basic freedoms without convincing certain groups of the validity of some of its postulates. This predicament could have been avoided by the inclusion of one line stating that all resolutions of the United Nations concerning human rights and groups are effective and to be respected and that the state takes responsibility for their enforcement and ensures that they do not conflict with the interests of the different groups.

The Issue of Kirkuk

The people running the affairs of Iraqi Kurdistan—as it is called in the constitution—wanted to include their demands in the constitution, thereby shifting focus on the priorities related to clearing up the messy Iraqi house, as it were. In this respect, we can see the changing position of Kurdish leaders motivated by their own interests. These leaders, now insisting on the principle of "referendum" to ascertain the positions of a certain area where they know that the results of this referendum are actually guaranteed unless the new situation which they have created is corrected, did not mention referendum when they were negotiating autonomy in the 1970s. Instead, they were then talking about a solution achieved through table negotiations among the groups concerned.

The same leaders decided to boycott the first elections held in Iraq unless their demands relative to the inclusion of all those people who had escaped to Kirkuk and created settlements that lacked the same basic health and living standards as those enfranchised inhabitants of Kirkuk are accepted. Those first elections were a first step towards the establishment of a national assembly to draft a permanent constitution after the appropriate parameters were set in the Law of Administration for the State of Iraq for the Transitional Period. When the people in charge of the state submitted to these demands at that time, these same leaders changed their minds as the results became known to them and then opted for elections.

Playing on the ambiguity of language

It has become clear that those who succeeded in imposing their interests inserted into the Iraqi constitution conflicting items and principles which have given rise to more than one interpretation. This is a pitfall for all who seek transient gains without considering the damages done to the ideals they stand for. For instance, Article 143 of the Iraqi constitution states:

The Law of Administration for the State of Iraq for the Transitional Period and its annex are abated upon establishment of the new government, except for Item (a) of Articles 53 and the article 58.

This was consolidated in Article 140, which states in its first paragraph that the executive branch shall take the necessary measures to implement the requirements of all items of Article 58 of the Law of Administration for the State of Iraq for the Transitional Period.

This means that the terms of Article 58 remain effective even after the end of the transitional law. The author has said more than once that Paragraph C of the said Article states that the settlement shall be made in a manner that meets the principles of justice, taking into account the will of the inhabitants of those territories. When passing the Iraqi constitution, some groups inserted the word referendum in Article 140 but ignored the phrase the will of the inhabitants of those territories, thereby setting the stage for their own agendas.

Returning to the solution of disputed lands

The Law of Administration for the State of Iraq for the Transitional Period deferred the final settlement of disputed territories (Lands) until the taking of a fair and transparent census and endorsing the permanent constitution on the principles of justice. However, unnecessary detailing was included in Article 140 of the constitution with the words “…ends up with a referendum in Kirkuk and disputed regions,” meaning that the lands were expanded to include regions, in spite of keeping the above article legally effective.

The people in charge of drafting the constitution would have identified the differences in meaning had they returned to the definition of terminologies. By referring to Al-Munjed in Contemporary Arabic Language, we can see that the term land means the upper layer of soil, and that the term the land area is the land surface that can be built or stepped upon. The region, however, means the specific part of land, which means location, site, place, circle, field, and perimeter. It is evident that the advocates of these differences wanted to make the situation ambiguous by using this term. [1]

According to the agendas of certain groups, this ambiguity was intended to include a whole region in these procedures. The city of Kirkuk, for instance, is a specific land that can be talked about, and inserting the word regions is intended to include the province of Kirkuk after returning some Kurdish areas to it as another guarantee for getting the desired results from the elections. Paragraph B of Article 58 states that administrative borders of provinces shall be resolved. As for the demands of the Kurdish political groups, they ask first for the return of lands such as Jamjamal and Klar governorate to Kirkuk and then the call for a referendum in the province as a whole.

This demand is unconstitutional since Article 53 of the Law of Administration for the State of Iraq for the Transitional Period, whose first paragraph is to be maintained by the constitution, states the following:

The government of Kurdistan is recognized on March 19, 2003 as the official government of the lands run by the said government and these lands are located in Duhok, Erbil, Sulaimanyah, Kirkuk, Diala, and Ninawa.

Concerning Kirkuk province, Jamjamal and Klar were within the perimeters of these lands, so their status was determined constitutionally and the phrase disputed lands ceased being used to describe them. Certain groups, however, are trying to separate them from Kurdistan in order to annex them to another province that supposedly does know the results of any referenda in it and then call for a referendum to rejoin Kurdistan.

Who are the people of Kirkuk?

In Article 23, the Iraqi constitution bans possession for the purpose of making demographic changes and calls for the preservation and protection of public property. Certain people admitted that Kirkuk’s population, or their offspring, must be considered among those registered in the 1957 census; but based on weak arguments, they tried to change the records, sometimes recognizing the population’s registration cards and at other times relying on the records of these cards as a basis for considering the identity of the original residents of the city.

Since Kurds in the 1957 census were only nearly a third of the population against the Turkmen and Arabs, any referendum made in the city of Kirkuk with reference to the arbitration of “the disputed lands" cannot be in favor of joining Kurdistan, even if we presume that all original Kurdish citizens of Kirkuk vote in favor of joining, a matter not acceptable in democratic practices.

The single rational explanation for such a situation would be that the results of the referendum should be fraudulent as would the use of the census which counted only the original citizens. Both cases are unacceptable by the rules of justice and democracy.

Who are the people who were evacuated from Kirkuk?

If we took for granted the application of the aforementioned legal and constitutional articles and adopted the logic based on the 1957 census, the people evacuated from Kirkuk, whether Turkmen or Kurds, should be allowed to return to the properties and places that were originally theirs. This principle, or argument, had been utilized even before the implementation of related legal texts by inundating Kirkuk with hundreds of thousands of non-original people from other provinces.

There has been a lot of gossip regarding these evacuees, and Kurdish leaders have tried to assure that they were the original city residents. Local administrations facilitated—through a mayor's certificate and two witnesses—their receiving ration cards, which were deemed a substitute for the fair and transparent census stated in the constitution.

Official documents indicate that this has not been the case. The numbers of evacuees and newcomers that have been used to change the demographic structure can be identified by referring to government documents of the ousted regime, which was not supposed to minimize the figures as it was documenting success in executing the orders and tasks entrusted to it.

The governor of Kirkuk sent a letter to the senior official of Arabization, the secretary general of the committee for organizing the north, Taha Yasin Ramadan, a close ally of Saddam Hussein. This letter was among the documents a Christian citizen, Luna, obtained from the city hall. It included a report on the most serious cleansing phases that took place from June 1, 1985 to October 1988. The report presented the achievements made during this period and is supported by the following figures:

- 19,146 citizens were evacuated from security-zone villages.
- 96,533 records were transferred from Kirkuk region to Erbil to evacuate the people.
- 2,405 families were evacuated from the areas surrounding oil plants that were security-sealed.
- 10,918 Arab families (with 53,834 members) were evacuated to Kirkuk from other regions.
- 8,250 parcels of residential property and 1,112 houses were given to Arab families brought in from other regions.

The letter showed that the ultimate result of these changes led to the influx of 51,862 Arabs to the region and the evacuation of 18,096 Kurds from the region during this period. [2]

The transferred records mentioned in this report were for families that were not originally registered in the 1957 census in Kirkuk. The families evacuated from regions contiguous to oil plants and housed in new housing complexes outside Kirkuk were dwellers of Turkmen villages north and south of Kirkuk, while those Kurds evacuated numbered 18,000.

Total Number of Evacuees

Evacuation for security reasons or for protecting areas surrounding oil wells or evacuation motivated by the Arabization policy adopted by the ousted regime against Kurds was not restricted to Kirkuk. Even though Kurdish leaders exaggerated this issue and tried to draw attention to the demographic situation of the city of Kirkuk, the realities nonetheless refute their claims.

Studies conducted on this issue show that the nature of changing places of residence among the citizens of the region was motivated by the struggle between the two major Kurdish groups. Moreover, the total number of evacuated Kurds, Turkmen, and other races as part of the Arabization policy that took place in Kirkuk was ten thousand people between 1998 and 1999, while the total number of evacuated families was one thousand. [3]

Most studies indicate that evacuees were not from Kirkuk only. It is believed that around 120,000 people from Kurdish and other races were evacuated from their areas of residence in Kirkuk and neighboring areas. Kurdish writers themselves accepted this view before the phase of the inundation of the city of Kirkuk with newcomers. [4]

International organizations and sources refer to the true number of evacuees. A Human Rights Watch report shows that the total number of evacuated Kurds, Turkmen, and Assyrians from Kirkuk and from all areas adjacent to oil wells in northern Iraq to the territories controlled by Kurdish groups from 1991 until preparation of the report in 2003 was around 120,000 with smaller numbers evacuated to the south. [5]

Where does salvation for a new Iraq lie?

The only way to build a new Iraq that aspires to a free and honorable life and seeks the benefits and advancement of its future generations is to return to the spirit of human rights covenants that guarantee human freedom and dignity. I made a simple count of ethnic, national, sectarian, and religious phrases in the Iraqi constitution and found they are used twenty-five times. Yet, in the first Iraqi constitution, written in 1925, only one occurrence was noted, and it was related to the official language of the state, in which local languages and all minority languages, without exception, were respected.

The civilized way of thinking requires that Iraqis refrain from making factional gains, respect other groups, and avoid any actions that might destabilize the country even if committed by a party close or loyal to the same group. This goal can be attained by making no reference to any racial, religious, or sectarian differences and by banning the formation of any political groups or associations based on these references. Individual languages and cultures shall also be guaranteed with people exercising their national, political, and cultural rights freely, unless otherwise prohibited by law.

The Article 14 of the current constitution states:

Iraqis are equal before the law with no discrimination due to sex, race, nation, origin, color, religion, sect, belief, opinion, economic, or social status.

This text makes other interpretations or the mentioning of races or sects redundant, but the problem lies in the actual implementation. This text had already been mentioned in most of the earlier Iraqi constitutions and has been included in the constitutions of the most tyrannical and totalitarian regimes in the world, but the people have not enjoyed the least amount of freedom stated in these texts. As mentioned earlier, constitutions are social contracts, but if people are not allowed to enjoy their benefits, then regimes feel enjoined to quell dissension and oppress their people, believing that theirs is the right to be obeyed, insidiously all under cover of the alleged freedom, democracy and justice entrusted to them.

The question that preoccupies some Iraqis is related to the way Iraqi Turkmen regard this point. In this respect, the Turkmen Covenant states:

"Turkmen believe that the form of Iraqi regime is to be decided by the Iraqi people and it shall not be totalitarian. Like other Iraqi people, Turkmen have refused totalitarian regimes. The Turkmen Movement calls for a democratic regime and the peaceful exchange of authority through free and honest elections according to the civilized practices of democratic states.

The Turkmen Movement supports a republican and constitutional regime and believes that the Iraqi constitution has to express the nation's conscience. It shall guarantee that all Iraqis practice their political, civil, social, and cultural rights, including freedom of speech and expression, publication of newspapers and magazines, and establishment of political groups and intellectual organizations under the condition that they do not conflict with the public order or destabilize the unity of Iraq.

The Turkmen Movement prefers a strong and powerful government in the capital, Baghdad, and sees this as a guarantee of the unity and stability of Iraq. Local administrations and municipalities shall also have maximum authority. The Movement also respects the Iraqi decision related to the selection of administration style, whether it be federal or united, under the condition that this includes all Iraqi people. It believes that this is crucial and decisive and shall not be monopolized by any particular group, and that all Iraqi people have the right to participate in its endorsement."

[1] Al-Munjid in Contemporary Arabic Language, Dar Al-Mashriq, Beirut 2001, 18 and 1,420.
[2] The Assassin's Gate- America in Iraq, George Packer, Ferrar, Straus and Girouz, New York, 2005, 347-8.
[3] David McDowall, The Modern History of the Kurds Turkisj Edition, Doruk-Ankara, 520.
[4] Kerim Yildiz, The Kurds in Iraq, Pluto Press, London 2004, 54.
[5] Human Rights Watch, “The Iraqi Government Assault on the Marsh Arabs,” A Human Rights Watch Briefing Paper, New York, January 25, 2003.

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