by Nasr Salem (Occupied Arab World, Crescent International Vol. 34, No. 2, Safar, 1426)
The protracted negotiations and bitter wrangling surrounding the formation of Iraq's new government have focused attention on the complexities involved in establishing a political balance among the country's fractious ethnic, religious, tribal and partisan mixture. As Iraq's political heavyweights wheeled and dealed for better positions and more influence in the country's government, new fears emerged that more intense political disagreements, as well as concomitant volatility, lie in wait once the new government undertakes the more serious task of drafting a permanent constitution.
Like all power-sharing deadlocks, the recent impasse in Iraq centered on how much power to distribute among the various factions, particularly the United Iraqi Alliance (UIA), sponsored by Ayatullah al-Udhma Ali al-Sistani, which won more than half the seats in the new 275-member National Assembly, and the Kurdish Coalition list, which got a quarter of the seats. It also stemmed from disagreements over a number of thorny issues, rooted mainly in the Kurds' determination to press a long list of demands for power and influence in the new Iraq.
The role of Islam in the new Iraqi political system is one of the main disputed issues. Whereas the Kurds, whose main political groups adopt staunchly secular political outlooks, oppose the establishment of Islam as the main source of legislation, the UIA, which includes in its ranks most of Iraq's main Shi'a Islamic groups, emphasizes that the new constitution (to be drafted by mid-August) should, in the words of Sayyid Abd al-‘Aziz al-Hakim, who heads the list, "respect the Muslim identity of the Iraqi people." Although the UIA's position falls far short of the goal of establishing an Islamic state, the main secular Kurdish parties, as well as the Iraqi list headed by interim prime minister Iyad Allawi, are still wary even of the possibility of drafting a constitution that specifies a legal system inspired by the Shari'ah. In this regard, the Kurds insist on obtaining assurances that the Transitional Administrative Law will be incorporated into the future constitution. This means enshrining the interim constitutional document, which pays lip-service to Islam as "the official religion of the State" and "a source of legislation" (article 7A), along the lines of the constitutions of most Muslim countries, as a basis for a permanent constitution for Iraq.
The Kurds have also insisted on codifying the current level of Kurdish autonomy into the constitution. They have asked that the national budget finance the Kurdish region by a percentage proportionate to the area's population density. The UIA has agreed to this demand in principle, but argues that, because the 2005 budget has already been drafted, it should be incorporated into future budgets.
Another bone of contention between the two main factions is the fate of the Kurdish militias, known as the Peshmerga. These militias are in two groups, one belonging to each of the two main Kurdish parties, the Kurdistan Democratic Party (KDP), led by Mas'ud Barazani, and the Patriotic Union of Kurdistan (PUK), led by Jalal Talabani. The Kurds insist on keeping their militias independent of the line of command of the federal forces.
The Transitional Administrative Law allows the Kurdistan regional government to retain control over its own "police forces and internal security" (article 54A). So far this has in effect meant keeping the Peshmerga units under the command of the KDP and PUK, as well as blocking the deployment of Iraqi army troops in the Kurdish region. In a recent interview with the New York Times, Barazani called for a constitutional ban on the presence of the Iraqi national army in Kurdistan. The UIA has insisted on incorporating the battle-hardened Peshmerga, whose total number is estimated at more than 100,000, into the Iraqi armed forces, placing them under the central command and hierarchical structure of the defence ministry. UIA proposals to end the stalemate over the issue of the Peshmerga include employing some Peshmerga fighters in civilian government bodies and retiring a certain number of them altogether.
The thorniest, and potentially most incendiary, issue is the status of the oil-rich city of Kirkuk. Not only do the Kurds want the city to be attached to the Kurdish region, but they also want it to be declared its capital. The claim the Kurds lay to Kirkuk got a significant boost in the provincial elections, which gave a pro-Kurdish list 26 out of the 41 provincial council seats in the Ta'mim province, whose capital Kirkuk is.
Article 58 of the Transitional Administrative Law calls on government bodies to "act expeditiously to take measures to remedy the injustice caused by the previous regime's practices in altering the demographic character of certain regions, including Kirkuk, by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving the inhabitants of work, and correcting nationality." From the Kurds' point of view, this article applies mainly to the return of tens of thousands of Kurds expelled from Kirkuk during the rule of the Ba'ath Party in an effort to "Arabize" the oil-rich city. It also means arbitrating property disputes between the displaced Kurds and the Arabs who were brought in to replace them.
But Kurdish claims to Kirkuk go beyond the mass relocation of Kurds into the oil-rich city. The Kurds, who say that Kirkuk was historically Kurdish, want the city to be incorporated into the Kurdish autonomous region. They have also been pushing for more Kurds to be employed at the state-owned Northern Oil Company, the main government employer in the area. These demands have inflamed communal passions and made worse bitter ethnic antagonisms. Turkomen and Arab officials have accused the two major Kurdish parties of embarking on their own efforts to alter the demographic composition of Kirkuk. They charge that the KDP and PUK have moved thousands of Kurds, who were pretending to be returnees, into Kirkuk before January 30 in an attempt to predetermine the outcome of the elections.
The problem of Kirkuk has legal, policy and practical implications. The Transitional Administrative Law sets vague guidelines for settling the property disputes arising from the forced exodus of enormous numbers of people during the Ba'athists' rule. In April 2004 the American-led Coalition Provisional Authority set up the Iraqi Property Claims Commission to deal with issues of restitution. Statistics show that by the end of the year the Commission had ruled on only 25 cases out of 10,044 claims it received from the province of Ta'mim. This slowness to process cases of restitution stems only partly from the slowness inherent in legal and bureaucratic processes; it is also due to the uncompromising approach the Kurds have been taking concerning the makeup of the Commission. There are only two judges working on adjudicating cases in Kirkuk, and both of them are Kurds. Assigning more judges to the Commission has been obstructed by the insistence of Kurdish political parties that only Kurds review the claims related to Kirkuk, thus limiting the pool of qualified judges from which to recruit claim-reviewers.
Although the name of Kirkuk appears in article 58, it is mentioned as an example of a broader problem engulfing other parts of Iraq. There is nothing in the spirit or letter of article 58 that makes it applicable exclusively to Kirkuk. This point was raised by the UIA during the negotiations. In response to the Kurds' insistence on the return of displaced Kurds to Kirkuk, UIA delegates involved in talks with the Kurdish Coalition have raised the issue of the coerced mass population movements in southern provinces during Saddam's rule, especially the Marsh Arabs, who were forced out of their homes in the marshes of southern Iraq when the Ba'ath Party set out to dry up the marshes in an effort to deprive rebels of their use as a hideout.
A more complicated legal conundrum facing Kurdish demands with respect to Kirkuk is that the Transitional Administrative Law exempts Baghdad and Kirkuk from efforts to set up federal units in Iraq. Article 53C states that "Any group of no more than three governorates outside the Kurdistan region, with the exception of Baghdad and Kirkuk, shall have the right to form regions from amongst themselves." The UIA has relied on this clause to support its position, which calls for separating the aspects of restitution and forced migration from that of the administrative status of Kirkuk. While the UIA agreed to implement article 58 with respect to the Kurdish returnees to Kirkuk, it called for deferring the final decision on the administrative status of Kirkuk.
Tthe Kurds' passion for independence is one of the main features of the current political landscape in Iraq. The Iraqi flag is rarely (perhaps never) seen in the Kurdish north. Instead, the green-white-red Kurdish flag, with its bright yellow sun in the middle, is conspicuous throughout the region. The people of Iraqi Kurdistan voted overwhelmingly in favor of independence in an advisory referendum during the January 30 election.
These knotty issues were still dogging the political process in Iraq when the National Assembly convened for its opening session on March 16, some six weeks after the election. When the legislature convened, hopes of an impending deal between the UIA and the Kurdish Coalition had been raised and dashed several times. For instance, just before the new legislature's opening session, last-minute demands by the KDP over the status of Kirkuk and the Peshmerga militias plunged the process of forming an executive body into another deadlock.
The Kurds wanted written guarantees that take into consideration their main demands and concerns, namely their autonomy in the north, the status of Kirkuk, and their Peshmerga militias. The Kurdish drive to pursue these demands with such fervor even before the government has been formed is understandable, as the Transitional Administrative Law places them in a position where they have greater leverage before the formation of the new government than they will have after. While it takes only a simple majority to approve provisions in the constitutional document, it will take a two-thirds majority to elect a presidential council composed of a president and two vice presidents. The presidential council selects a prime minister unanimously, as well as members of the cabinet upon the recommendation of the prime minister. The prime minister and his cabinet must then seek to obtain a vote of confidence by simple majority from the National Assembly, prior to assuming the duties of government. Accordingly, the Kurdish Coalition list, with its 75 seats in the National Assembly, can wield an effective veto over the selection of government, but would lose this veto in drawing up elements of the constitution or government policy.
Aside from the Kurdish demands, ministerial posts constitute another major stumbling-block that faces the formation of government. With an eye to reaffirming their status with the Arabs as one of the two main national groups making up Iraq, the Kurds insist on a significant share of power in the central government. Part of the Kurds' price for supporting Ibrahim al-Ja'afari, head of the Islamic Da'wa Party, the UIA's candidate for the post of prime minister, is that Iraq's presidency go to Talabani, who headed the Kurdish coalition's list in the elections. Talabani's two deputies will be one Shi'a and one Sunni Arab. Talks were also held with outgoing prime minister Iyad Allawi and a number of Sunni figures to persuade them to join a coalition government.
The new cabinet and parliament have a host of difficult tasks ahead of them. Foremost among these is the drafting of a permanent constitution, which is due to go to a referendum in October, to be followed by a new round of parliamentary elections in December. On top of that hopes are pinned on the new government to crush the resistance and revive the country's economy, which has been shattered by the effects of successive wars, economic sanctions and governmental corruption and mismanagement. Considering the tortuous, complex and long-drawn-out haggling attending the formation of the new Iraqi government, one can imagine the walls the political process is going to hit as Iraq's communal and political groups try to achieve the harmony required to deal with these challenges.