Without a Federation Council, State-building in Iraq remains elusive

Earlier this month, Iraq’s hardline Shiite lawmakers gathered over a 100 signatures, demanding an urgent parliamentary session, to legislate for the explusion of the US and other foreign forces from Iraq. The Parliament met on 10 Feb 2024, but failed to achieve a quorum. Next time, they might not fail, as they succeeded in 2020 in securing a majority vote for a non-binding ‘parliamentary decision’ to evict foreign military forces. The problem here does not lie in the topic, but in the fact that Iraq’s shaky Parliament is enjoying a monopoly in the country’s supreme legislative body and not subject to any form of checks and balances.

Iraq was meant to have a Federation Council, an upper chamber, that can play a vital role in the country’s democracy, state-building and rule-of-law. This Council was mandated in Articles 48 and 65 of the 2005 Constitution, and was meant to be created during the term of the first Parliament (2006-2010). Meanwhile, its powers were assigned for those four years to a one-time Presidency Council, consisting of a President and two Vice-Presidents. Together, by a unanimous vote, the Presidency could object to, reject and/or return legislations to the Parliament. However, the Federation Council was never created and the Presidency Council was replaced in subsequent elections by the President, with minimal powers in the legislative cycle. In fact, over the last 19 years, even the President’s ceremonial roles have been repeatedly undermined by the Parliament, the Government and the Judiciary. The Parliament deliberately includes a statement (“The law is valid once issued by the Council of Representatives”), as a matter of course, in all draft legislations, even before they are submitted to the President for endorsement. This is neither legal nor constitutional, because laws are considered ratified only “after 15 days from the date of receipt by the President” (Article 73-Third).

Successive Presidents have argued that they retain the constitutional right to return a new legislation to the Parliament without ratification, but only once. In reality, the Parliament can persist with the legislation and ignore the President, except that he/she retains the ability to prevent the enactment of the new legislation by preventing its publication in the official Gazzet, Al-Waqai Al-Iraqiya, which is a pre-requisite before new laws are enacted. Published legislations are given reference numbers, but only when they carry the President’s signatur. However, even this exclusive power has been undermined previously when legislations were published and enacted without the President’s endorsement. In an incident, in 2020, lawmakers wanted to push for a controversial legislation on equalisation of Higher Education degrees, to which the then President (and the government’s Cabinet) had fundamental objections. Yet, the lawmakers forced the President’s hand by threatening to change the Al-Waqai Al-Iraqiya Law (No. 78 of 1977). He backed down and the law was passed. This issue demonstrated the disjointed system of legislation and the level of internal competition or rivalry between the legislative institutions which are supposed to be integral and complementary.

It is no secret that many lawmakers, particularly among the Kurds and Sunni Arabs, warn against the Parliament becoming a ‘blunt instrument’ being used by Iraq’s Shiite majority component, against the rest. Clearly, all three major ethno-religioius components of Iraq are severly divided, polarised and rendered defenceless in the face of any possible half-baked, ill-conceived or detrimental laws.

Fortunately, Iraq is committed to a parliamentary democracy, and it is the Parliament’s responsibility to turn the Constitution into a roadmap for state-building and nation-building. However, in a fragile country, plagued by never-ending internal crises and entangled in regional power rivalries, this process was never going to be easy. Indeed, almost two decades after the adoption of the 2005 Constitution, there is no sign of constitutionalism in Iraq. Virtually no one in the country sees the Constitution as a sacred social contract or an ultimate arbitrator. Iraq’s political and institutional leaders, without exception, have been selective, subjective and/or sectarian in their application of the Constitution. In fact, Iraq’s top judges are open about their rejection of federalism, upon which the entire Constitution is based on. Hence, it is not surprising that, to date, 33 of the Constitution’s 144 Articles await mandated legislations and dozens more legislations await amendment as per the Constitution. Most of these legislations are critical for putting Iraq on a trajectory for the rule-of-law, institutionalisation of the centre-periphery relations, strengthening the government checks and balances and optimising the management of national resources and assets. As a consequence, there are currently numerous structural and functional gaps or weaknesses in Iraq’s governing system, which have added to the country’s fragility and acted as independent drivers of conflict.

In short, currently, there is no supreme authority in Iraq that has the power, the stature and the legitimacy to safeguard the country’s legislative system and prevent poor or detrimental legislations from being enacted. Regrettably, none of the successive Presidents, Parliament Speakers or Prime Ministers gave the creation of the Federation Council a priority, due largely to the lack of political will. Left alone, it may take a generation or two before the Council is seriously debated, let alone established. Meanwhile, Iraq’s fragility, instability and unpredictability remains a threat to its own people, as well as international partners. Iraq is unlikely to become the strong, sovereign and functional state it aspires to, without having a strong and fully functional upper chamber.

See also:
Iraqi Parliament’s monopoly has made state-building impossible, The National, February 29, 2024

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