Debate about Talabani's proposal to demarcate provincial borders21/02/2012 09:19
BAGHDAD, Feb. 21 (AKnews) - The draft law to demarcate the administrative borders of 17 provinces, which was referred to the Council of Representatives by President Jalal Talabani, has prompted significant legal debate.
The vice chairman of the Kurdish Blocs Coalition Mohsen al-Saadoun said the Council of Representatives received the draft law and it was referred to the Legal Committee to be discussed in the coming days.
"Correcting the administrative borders is [required] because the Electoral Commission can't hold elections [in] districts and areas due to the presence of overlaps between the provinces," said Saadoun, a member of the Legal Committee.
"Re-demarcating the boundaries is constitutional and the draft law will be well examined in the Council of Representatives."
Political calls increased recently to demarcate the administrative borders between Iraq's provinces, especially between Karbala, Anbar, Nineveh, Salahaddin, Muthana, Dhiqar, Diyala, and Baghdad. Talabani's proposal seeks to cancel the former regime's decrees on the administrative boundaries of cities and towns and return them to their pre-1968 state. The outlawed Baath Party took power in Iraq in 1968.
Talabani's proposal was formulated with the help of a number of legal experts in the light of Article 140 of the Iraqi Constitution, and there is Kurdish optimism about passing it in the Council of Representatives. Kurds consider it key for the return of areas to their original state, while others believe it to be a violation of the Iraqi Constitution and a move that does not fall within Talabani's powers.
"The constitution didn't authorize President Jalal Talabani to submit a draft law about re-demarcating the administrative boundaries of some provinces and he doesn't have the powers to do that," said Omar al-Jabbouri, a member of the Legal Committee and the representative of the Arab component for Kirkuk in the Council of Representatives.
"We had a Presidency Council on the basis of the provisions of Article 138 (First) from the constitution and during this period Article 140 [of the constitution] was valid until December 31, 2007. Until [that date] the Presidency Council didn't follow any of the procedures in Article 58, paragraph B of the Transitional Administrative Law.
"The constitution confirms that after the first [successive term] the role of the Presidency Council ends and the president exercises his powers according to Article 73 [of the constitution]. According to Article 73 the president doesn't have the powers to make recommendations about the demarcation of the administrative borders between provinces and districts and areas."
Legal expert Tariq Harb meanwhile quoted Article 60 (First) of the constitution to refute Jabbouri's opinion and confirmed that the constitution gives power to the president to propose draft laws.
"Article 60 (First) of the Iraqi Constitution is clear and explicit and points out that the president and Council of Ministers have the powers to propose draft laws," adding that the constitutional article does not specify which laws can and cannot be proposed.
"Proposing laws doesn't mean that they will be passed in the Council of Representatives since the latter has the right to reject or pass," continued Harb. "The Council of Representatives receives bills from civil society organizations, so how do these organizations have the right to propose draft laws and the president doesn't have this power?"
According to press reports the Iraqi Council of Ministers promised to supply Talabani with all of the documents concerning the disputed areas, while the president himself is working to collect the documents of the former regime with respect to the issue.
The Ministry of State for Provincial Affairs stated that the bill of installing administrative borders between the provinces was adopted before the US invasion and was then disabled and replaced by the Law of Governorates Not Incorporated Into a Region no. 21, 2008.
If the Iraqi Council of Representatives and the government resolve the issue of demarcating the borders the most prominent challenge will be the mechanism for the application of Article 140 of the constitution.
According to Article 140 the issue of the disputed territories between Baghdad and Erbil must be resolved after a demographic alteration was implemented by the former Iraqi regime in a number of provinces, most notably Nineveh, Salahaddin, Kirkuk and Diyala. The "Arabization" of these areas saw local ethnic groups replaced by Arabs. The issue can be resolved on three stages: firstly normalization, then a population census, followed by a public referendum about the fate of these areas. A census would determine whether or not these areas belong to Kurdistan region or to the federal government in Baghdad.
By Haider Ibrahim
The Law in Brief
Article 138 (First) of the Iraqi Constitution
The expression “the Presidency Council” shall replace the expression “the President of the Republic” wherever the latter is mentioned in this Constitution. The provisions related to the President of the Republic shall be reactivated one successive term after this Constitution comes into force.
Article 140 of the Iraqi Constitution
First: The executive authority shall undertake the necessary steps to complete the implementation of the requirements of all subparagraphs of Article 58 of the Transitional Administrative Law.
Second: The responsibility placed upon the executive branch of the Iraqi Transitional Government stipulated in Article 58 of the Transitional Administrative Law shall extend and continue to the executive authority elected in accordance with this Constitution, provided that it accomplishes completely (normalization and census and concludes with a referendum in Kirkuk and other disputed territories to determine the will of their citizens), by a date not to exceed the 31st of December 2007.
Article 58, paragraph B of the Transitional Administrative Law (steps to remedy injustice)
The previous regime also manipulated and changed administrative boundaries for political ends. The Presidency Council of the Iraqi Transitional Government shall make recommendations to the National Assembly on remedying these unjust changes in the permanent constitution.
In the event the Presidency Council is unable to agree unanimously on a set of recommendations, it shall unanimously appoint a neutral arbitrator to examine the issue and make recommendations.
In the event the Presidency Council is unable to agree on an arbitrator, it shall request the Secretary General of the United Nations to appoint a distinguished international person to be the arbitrator.
Article 73 of the Iraqi Constitution
The President of the Republic shall assume the following powers:
First: To issue a special pardon on the recommendation of the Prime Minister, except for anything concerning a private claim and for those who have been convicted of
committing international crimes, terrorism, or financial and administrative corruption.
Second: To ratify international treaties and agreements after the approval by the Council of Representatives. Such international treaties and agreements are considered ratified after fifteen days from the date of receipt by the President.
Third: To ratify and issue the laws enacted by the Council of Representatives. Such laws are considered ratified after fifteen days from the date of receipt by the President.
Fourth: To call the elected Council of Representatives to convene during a period not to exceed fifteen days from the date of approval of the election results and in the other
cases stipulated in the Constitution.
Fifth: To award medals and decorations on the recommendation of the Prime Minister in accordance with the law.
Sixth: To accredit ambassadors.
Seventh: To issue Presidential decrees.
Eighth: To ratify death sentences issued by the competent courts.
Ninth: To perform the duty of the High Command of the armed forces for ceremonial and honorary purposes.
Tenth: To exercise any other presidential powers stipulated in this Constitution.
Article 60 (First) of the Iraqi Constitution
Draft laws shall be presented by the President of the Republic and the Council of Ministers.