Opinions & Interviews

Article 140 and constitution outdate simultaneously, says expert

Sunday, July 25th 2010 4:19 PM
 



Erbil, July 25 (AKnews) – Tariq Harb, an Iraqi legal expert and the Head of Iraqi Legal Intellectuals Association believes that parliament has gone against the constitution by leaving  its first session technically open and by postponing the second assembly for two weeks.

 Iraq’s parliament met in mid June for the first time but lawmakers ended the first meeting without electing a speaker and his two deputies. As a quick fix for the lawmakers’ failure to elect a speaker and his two deputies, the acting speaker left the meeting technically open.

Iraqis went to the polls in early March but more than four months later the country’s factions are still mired in a deep political stalemate.

In an interview with AKnews, Harb defends Article 140 against the nullification claims, saying that  the article is annulled only when the Constitution is invalid. Article 140 sets out a roadmap to resolve territorial disputes in the country.

 AKnews: In legal terms, what is your opinion about concluding the first parliamentary session open?  

 Harb: The Constitution requires the lawmakers to meet 15 days after the ratification of the elections results to name the speaker of the parliament and his two deputies.

Nothing has been mentioned in the constitution about leaving any session open.

 On July 14 the lawmakers went against the constitution by leaving the session open.

The parliament right now has only an acting speaker who does not have any legislative authorities.

Moreover, the session can be adjourned only upon the request of the parliament speaker, his two deputies, and the majority of the lawmakers. But what happened recently in Iraqi parliament was quite the opposite and unconstitutional because the parliament did not have any of the two deputies and the lawmakers were not consulted about delaying the session.

 The postponement may continue as long as it takes the blocs to reach an agreement with regard to forming the new government.

 AKnews: Is it possible for the parliament to dissolve in case the blocs did not agree on electing the parliament speaker and his two deputies?

Harb: According to Article 64 (of the Constitution) if one third of the parliamentarians demand the parliament to dissolve; or in case the council of ministers through the consent of the Iraqi president requests the dissolution of the parliament and the lawmakers pass the request by an absolute majority, the parliament can be dissolved then.

In that case the Iraqi president calls for holding public elections in less than 60 days and the council of ministers will be dismissed but will carry out the daily routine procedures.

AKnews: So now the council of ministers is acting illegally?

Harb: Yes, because constitutionally the council of ministers' termination means that the authorities of the Iraqi president and prime minister are also over.

AKnews: Don’t you think that article 76 of the constitution is not vague and clearly explains what is meant by "the biggest parliamentary bloc", and do you also believe that the Federal Court's recent interpretation of the article will lead to further turmoil?

Harb: Any decision by the court is constitutional because its personnel are reliable professional legal experts.

Only the largest parliamentary bloc can from the next government. According to article 76 the leader of this faction is entrusted to from the government. The elected prime minister has to name his ministers within 30 days after taking over.

 However, should the prime minister fail to from the government by the deadline, the Iraqi president should hand over the task to another person.

The chosen ministers and the agenda of the new cabinet are subject to an absolute majority approval by the parliament.

None of the parties in the parliament can alone obtain sufficient support for top positions' candidates. Therefore, being the biggest bloc or not does not change the matter.

AKnews: The Iraqi Constitution was ratified on Oct. 15, 2005 and put into effect on December the same year. In the previous elections, according to the same Constitution, the biggest bloc was the one which ranked first in the elections, not the largest one which is formed after the elections and allied with the other blocs in the parliament.

Why then the article was interpreted that way and now there are two different interpretations?    

 Harb: By virtue of article 87 and 87 the judicial authority is sovereign and makes decisions legally and independently. Nothing binds the judges but the law and no one can interfere in their affairs and authority.

The Iraqi Constitution clearly identifies the biggest bloc and the procedures to form government. Therefore, sidelining the Constitution means violating the powers of the legal authority.

AKnews: The rumor has it that the Federal Court is under the pressure of some political parties.

 Harb: These are all baseless claims to evade enforcing the constitution. It is not like the former regime for the courts to be controlled by a certain party.

The Federal Court has an independent financial and administrative board, comprising theologians and legal experts, all acting in various sections of the court as the Supreme Judicial Court, the Federal Supreme Court, etc. It is not logical for all these institutions to pass an incorrect decision about this very key article.

The Federal Court's decisions are all decisive and all parties should comply with them.

 AKnews: Iraqi parties interpret the articles at their will and decide on their constitutionality as it is the case with article 140 and brokering the oil contracts.

 Some even think the Federal Court is indifferent toward the issue. Don't you think that lack of an authority whose interpretations can convince all the parties will lead Iraq to durable crisis?  

Harb: There is an authority but they don't recognize it. The authority of the overthrown Iraqi Baathist regime stifled the Iraqis to an extent that the parties still believe that they are ruled by the same laws of that era.

With regard to the article 140, the Constitutions underlines that the Iraqi president and prime minister have to implement it through three stages but their procrastination has suspended the execution.

Yet, the suspension of the article does not mean that it is outdated. If the article is outdated then the Constitution is outdated, too.

Therefore, all such views are wrong.

For the oil contracts also the Constitution plainly authorizes the regions and accordingly all the provinces to broker oil contracts. Those who claim the contracts are unlawful have not understood the Constitution.

 AKnews: In case the disputes over the Iraqi government formation deepen, the U.S. and the UN may intervene and create a new government supervised by the UN. How much real is this prospect?

Harb: In legal terms, the UN can recommend its proposal to the Iraqi political players; however, it cannot impose it.

 Nevertheless, any U.S. or regional interference in any country's internal affairs is intolerable and illegal.    

AKnews: What do you think of the oil exportation debate between Erbil and Baghdad governments?

 Harb: I hope the two sides can finally agree but even if this is not feasible the Federal Court can intervene.

I think the (Kurdistan) Region has not breached the Constitution but transferring the Iraqi oil to Iran without informing the central government is unconstitutional and it has to be avoided.

 Lh (AKnews)

 
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