The Importance and Challenges of Establishing the Federation Council in Iraq

 Introduction

According to Article 1 of the Iraqi Constitution of 2005:
"Iraq is a single, federal, independent, and fully sovereign state. Its system of government is a parliamentary, democratic, and representative republic. This Constitution is the guarantor of the unity of Iraq."In federal systems, including Iraq, legislative powers are divided between two chambers. As stated in Article 48 of the Iraqi Constitution, legislative authority in Iraq consists of the Council of Representatives and the Federation Council. Furthermore, according to Article 65 of the Iraqi Constitution, a legislative chamber called the "Federation Council" is to be established. This council includes representatives from the regions, governorates not organized into a region, and other entities. Its formation, membership conditions, specific functions, and all other related matters are to be regulated by a law that requires a two-thirds majority vote in the Council of Representatives.

However, in practice, we observe that after 19 years since the Constitution's adoption, the Federation Council—which is meant to guarantee the protection of the rights and interests of the regions—has not been established. Although such councils were initially formed in Unitary States, Federal states have played a significant role in developing these Councils, as seen in countries like the United States, Switzerland, Germany, and Australia.

According to the Constitution, Iraq's Council of Representatives should have passed the Federation Council Law during its second term. However, throughout this period, there has been no adherence to this constitutional provision to legislate the law. Instead, the Constitution itself has created an obstacle in this regard through Article 137, which states:
"The provisions relating to the Federation Council mentioned in this Constitution shall be postponed until a decision is made by the Council of Representatives, by a two-thirds majority vote of its members, during its second electoral term following the implementation of this Constitution." In this study, we aim to shed light on the importance of establishing the second chamber of legislative authority, the challenges facing its formation, and ultimately present conclusions and recommendations.

The Importance and Necessity of Establishing the Federation Council in Iraq

The majority of federal states around the world, based on the principle of increased participation of regions in federal decision-making through a Federation Council, rely on the establishment of a bicameral legislative system. For this reason, Iraq's permanent constitution has adopted this framework in a way where the first chamber (the Council of Representatives) represents all the people of Iraq, while the second chamber (the Federation Council) represents the regions and governorates not incorporated into a region.

Constitutional law scholars have used various terms to refer to this council, such as the Second Chamber, Upper House, Second Branch of Parliament, Council of Elders, Federation Council, House of Lords, Council of Dignitaries, National Council, and Advisory Council.

Regarding the definition of the Federation Council, it is described as "(a representative council that forms part of the parliament and participates in discussions)" or "(a body that contributes to improving legislative processes before their issuance in terms of their form and content)."

In the Field of Legislation and Federal Policies, the general principle in federal systems is that both chambers of the legislature hold equal authority, such that the passage of any law requires the consent of both chambers. If either chamber rejects the law, it is considered null and void, preventing its enactment. However, not all federal systems adopt this principle. Some deviate from this model, granting unequal powers to the two chambers. The U.S. Constitution adheres to this principle by granting equal legislative authority to both chambers. Article 1, Section 1 of the U.S. Constitution states: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Similarly, the constitutions of Switzerland and Canada follow this model, ensuring balanced authority between their respective legislative chambers. In contrast, Germany’s constitution assigns greater authority to the Bundestag (House of Representatives) compared to the Bundesrat (Council of Regions). This creates an imbalance in the legislative process, where the lower house plays a more dominant role than the upper house.

The duality of legislative authority in federal systems is based on the belief that having two legislative chambers should support democracy and strengthen balance between democratic institutions. It should not, however, hinder the efficiency of the parliamentary process. Rather, it should reduce conflicts within the general authority of the state, ensuring that any tension between the legislative powers is resolved and that the role of each chamber is clarified. Additionally, it prevents the concentration of legislative authority in one chamber.

On the other hand, having two chambers ensures that smaller regions or areas, which might otherwise be dominated by larger regions, have representation and influence. This prevents larger regions from overpowering the smaller ones and guarantees their interests are considered in legislative processes. This structure provides a more equitable distribution of political and economic influence, ensuring fair representation for all regions.

Regarding the importance and benefits of having a federal legislative body, we can emphasize the following points: The role of the House of Representatives in overseeing and controlling the actions of the federal government, Offering solutions and proposals for addressing public issues within society, Ensuring equal representation for regions and areas, and preventing monopolization of legislative power by any single region. Thus, the presence of a federation council strengthens the overall political system by ensuring balanced governance and fair participation in decision-making.

Efforts to Enact the Federal Legislative System in Iraq

The Iraqi Constitution mentions the Federation Council in only three provisions. It states that the legislative powers of the Federation Council are shared between the House of Representatives and the Federation Council. Furthermore, the council is composed of the majority of two-thirds of the members of the House of Representatives, which creates a situation where the House of Representatives holds a stronger influence over the Federal Council, thus making it a subsidiary body to the House of Representatives. However, the third article addresses the resolution of all issues related to the Federation Council, directing them to the second round of legislative elections. 

It is clear that many lawmakers, particularly those among the Kurdish and Sunni Arab factions, have expressed concern that the parliament could become a tool of control, predominantly influenced by the Shiite majority in Iraq. These groups warn against the risk that all three Iraqi political factions may experience division and conflict without having the capacity to protect their interests from potentially harmful, unjust, or oppressive laws.

In recent years, several attempts have been made to fill this legal gap. The first legal draft regarding the Federation Council was presented through the Constitutional Amendments Committee during the first session of the House of Representatives on 22/July/2009, but this attempt was unsuccessful due to the political parties' avoidance and their positions during that time period. Later, during the presidency of Dr. Fuad Masum, a legal project was proposed by the presidency, which was linked to some minor amendments through the Constitutional Amendments Committee. On 22/September/2014, the first reading of the project was presented to the House of Representatives, but the stages of passing the law were not completed, and it was shelved. In another attempt, as a result of the negotiations between the political parties in the State Administration Coalition (تحالف ادارة الدولة), the Federation Council legal project was submitted to the presidency of the parliament on 21/May/2023, with the aim of being read for the first time. However, up to this point, the law has not been clarified.

The legal provisions of those articles in the constitution related to legislative powers require careful consideration. The constitution does not provide a solution for the mechanism of interaction between both assemblies, which is essential for the overall legislative process, such as proposals, approvals, and resolving conflicts. Similarly, Article 65 of the constitution is connected to Article 137, and working with decisions related to the Federation Council continues until after the first round of elections, when a decision is passed by the House of Representatives by a two-thirds majority. This means that the passage of the Federation Council law is directly tied to the passing of this decision in the House of Representatives.

On another note, the Office of the Speaker of the House of Representatives, in its letter numbered (1289) on 25/9/2012, requested a review by the Federal Supreme Court regarding Article (137) of the constitution, which states: "The operation of the provisions of those articles related to the Federation Council in any part of this constitution must be postponed until the passage of a decision in the House of Representatives by a two-thirds majority of members in the second round of their elections, after the implementation of this constitution is concluded." Additionally, Article (65) of the constitution states: "A legislative assembly named the 'Federation Council' will be formed, comprising representatives from the regions and governorates with administrative divisions, which will be established, along with the eligibility and special rights of its members, and all matters related to the legislation process, which will be reviewed by a two-thirds majority of members in the House of Representatives." The question arises: before taking steps to enact the Federation Council law according to Article (65), should the House of Representatives, based on Article (137), issue a decision by a two-thirds majority? The Federal Supreme Court, in its ruling numbered (72/Union/2012), emphasized the necessity of passing a decision based on Article (137) to start the legislative process, highlighting the importance of completing the legislative authority by establishing the Federation Council (second chamber) in a law that clearly defines its political and legislative aspects, ensuring there is no constitutional conflict based on the provisions of Article (137) in the constitution.

In the context of the Constitution, it is important to recognize that the act of not defining the powers and responsibilities of the Federation Council has violated the principle of equality between the two councils. The  granting of executive powers to the House of Representatives contradicts constitutional principles and undermines the balance between both bodies. As a result of this distribution of powers, the influence and importance of the Federation Council can become diminished in comparison to the House of Representatives. If, in the future, conflicts arise between the two chambers, the House of Representatives may have the ability to easily assert its dominance, weakening the legislative authority of the Federation Council and potentially reducing its effectiveness in the lawmaking process. 

In the 2005 Iraqi Constitution, the dominant approach behind the distribution of powers was to grant more authority to the House of Representatives compared to other federal institutions, including the Federation Council. Indeed, then the Federation Council should have greater powers, especially in cases where it is not parallel with the House of Representatives. This is to create a balance between the vertical and horizontal  division of power. 

Furthermore, in Article 1 of the Internal Regulations of the Iraqi House of Representatives, it states: "The House of Representatives has the authority to legislate and oversee high-level matters, and its powers are determined according to Article 61 of the Constitution and other relevant articles." This clearly contradicts Article 48 of the Constitution, which states that Iraq's legislative powers are shared between the House of Representatives and the Federation Council, with neither having dominance over the other.

As mentioned in Article 48 of the Constitution, legislative authority is shared between the two bodies of the House of Representatives and the Federation Council. This means that both bodies are equal in terms of formation, nature, and function according to the Constitution. In other words, both bodies are equal in terms of their establishment. However, according to Article 65, it is impossible for the Federation Council be equal to the House of Representatives. In actuality, the Federation Council is u der the authority of the House of Representatives, the latter which has been the powers to assign and pass laws. 

At the same time, some argue that the drafters of the new Iraqi Constitution were aware of this issue. However, due to two main reasons, they were compelled to accept this situation: First, because of the political circumstances in Iraq, which were influenced by the conflict between political parties and international factors which impacted the Constitutional drafting process. The second reason is the political disagreements between the secular and Islamic groups and parties. Their disagreements regarded the selection of Council members and their responsibilities. 

Briefly, currently, there is no higher authority in Iraq with the power to protect the country's legal system and prevent the enactment of harmful or unsound laws. Unfortunately, none of the the Presidents, Prime ministers or their successors, nor any Parliament leaders have prioritized the establishment of a Federation Council, and this is largely due to the lack of political will. If things continue as they are, it may take one to two more generations before the body is seriously established, which could further delay the process. In this context, Iraq's unpredictable and unstable future is seen as a source of instability for its own people and its international partners. If Iraq fails to establish a strong and fully functional Federation Council, it may become a weak, ineffective state that is unable to reach its desired future. To recognize the importance of the Federation Council and its role in protecting the rights of regions and establishing a Federal state, efforts must be made to pass the relevant law through the House of Representatives as soon as possible to ensure clarity and transparency.

Therefore, the absence of political will and the lack of agreement between Iraq's political factions have been, since the start, a hindrance to the ability and will of constitutional drafters to form a federation council within the framework of the constitution. This strategic mistake resonates until today, resulting in a situation where the Kurdish region and Kurdistan have suffered, and the country has yet to achieve the necessary cohesion to make this work effectively.

Conclusion

The 2005 Iraqi Constitution adopted a parliamentary system, granting significant powers to the legislative branch, and embraced a bicameral system. However, the constitution did not delve into the details of the establishment, authorities, and relationship of the Federation Council with the other legislative body, leaving these issues to be addressed by subsequent legislation.

Given the Federation Council's importance and its high-level role in strengthening the foundations of democracy and federalism in Iraq, protecting the rights of regions, and maintaining balance between the two legislative bodies, it is clear that—despite the constitutional challenges—the mechanisms for establishing and defining the authorities of this Council should have been outlined in the constitution alongside the House of Representatives. Nevertheless, the passage of the Federation Council law and its establishment would mark a positive step in the legislative process, enhancing Federalism's foundations and safeguarding the rights of minorities and smaller regions in legislative decision-making and the management of shared interests. It would also help reduce tensions between federal authorities and the regions.

As a result, such measures would increase trust among the regions in federal laws and decisions, as they would have a role in shaping these through their participation. Therefore, delaying or obstructing the establishment of the Federation Council under the pretext of unconstitutionality is unacceptable, especially since more than nineteen years have passed since the 2005 ratification of Iraq's constitution, yet no clear progress has been made in passing its law or forming it.

It is the duty of Kurdish political parties participating in Iraq’s political process, as well as Kurdish representatives in the House of Representatives and the President of the Republic, not to remain silent in the face of this constitutional neglect. They must urgently address this constitutional void, as further delay and neglect of this matter would harm the Kurds while benefiting the Shiite majority. For this reason, Shiite-dominated political forces have taken a more dismissive approach to this issue and have, in some cases, intentionally sought to create obstacles to prevent it from reaching its intended goal.

Recommendations:

We propose amending Article 65 of the Constitution in a way that ensures all procedural details for establishing the Federation Council and all related provisions are incorporated into the constitutional text during any constitutional amendment process.

We recommend that both direct and indirect mechanisms for selecting members of the Federation Council be employed, with regional parliaments playing a key role in nominating members and ensuring proper representation of minorities within the council.

Based on the experiences of established federal systems where powers are balanced between bicameral legislative bodies, we suggest that Iraq adopt a similar approach, with a foundation of balanced authority and a collaborative relationship between the Federation Council and the House of Representatives.
There is an urgent need to enact the Federation Council law and establish this council with the aim of strengthening the principles of federalism and safeguarding the rights of regions. This matter should be prioritized in legislative efforts.

The President of Iraq, as a key and influential position currently held by the Kurds, should draft and submit the proposed Federation Council law to the House of Representatives. The president should play an active role in aligning differing perspectives within Iraq to achieve this goal.

The Federation Council, as outlined in its draft law, should possess legislative and supervisory powers. Its role must not be limited to advisory or ceremonial functions, nor should it be subordinate to the House of Representatives. Instead, it should be on equal footing and, in some cases, even superior in specific areas of authority.

Given that the Federation Council law is a national and collective matter, discussions on this issue should not be confined to the House of Representatives alone. Civil society organizations should be involved, playing a leading role in creating public and media pressure and preparing a comprehensive draft law.

Kurdish representatives in the Iraqi House of Representatives must not remain passive regarding this issue. They should act actively and strategically, working unitedly and purposefully to push forward and secure the approval of the Federation Council draft law.

Since the Federation Council plays a significant role in protecting the rights of regions, Kurdish representatives should remain vigilant to ensure that any draft law passed in the House of Representatives aligns with the council’s intended purpose and does not deviate from its core objectives or become a tool for the central powers at the expense of the regions and minorities.

Addressing this issue should not be left solely to Kurdish representatives in Baghdad. Instead, the Kurdistan Regional Government (KRG) must also leverage all its resources, engage in discussions with Baghdad, and use diplomatic channels to exert pressure for the passage of the Federation Council draft law.
In cases of neglect or obstruction by other Iraqi parties or the creation of deliberate roadblocks against the Federation Council draft law, the matter can be escalated to the Federal Supreme Court. Legal mechanisms should be utilized to create pressure and advance this matter.

References 

‌آ) کتێب:

١) د.حمید حنون خالد، مبادیء القانون الدستوریي وتطور النظام السیاسي في العراق، ط ١، مکتبة السنهوري، بغداد، ٢٠١٢.

٢) عابد خالد رسول، المجلس التشریعي الثاني في الدولة الفیدرالیة، ط ١، مرکز کوردستان للدراسات الاستراتیجیة، السلیمانیة، ٢٠١٣.

٣) د.منذر الشاوي، القانون الدستوري، الجزء الاول، ط ٢، المکتبة القانونیة، بغداد، ٢٠٠٧.

ب) توێژینەوە:

١) د.حميدحنون خالد و محمود وهاب حسن البرزنجي، التنظيم الدستوري لمجلس الاتحاد الفدرالي، مجلة العلوم القانونية/ كلية القانون – جامعة بغداد العدد الخاص الثالث- الجزء الاول، ٢٠١٧.

  ٢) سلیمان کریم محمود و شالاو صباح عبدالرحمن، ضرورة ثنائیة السلطة التشریعیة الاتحادیة في العراق ومعوقات تکوینها في العراق، مجلة کلیة القانون للعلوم القانونیة والسیاسیة، جامعة کرکوک، ٢٠١٥.

٣) د.علي مهدي، قانون المجلس الاتحادي استحقاق دستوري ومطلب التوازن التشريعي، سلسلة إصدارات مركز البيان للدراسات والتخطيط، ٢٠٢٣.

٤) د.علي عبدالحسين الخطيب و د.باسم علي خريسان، الحَلُّ المَنسِيّ مَجلِسُ الإتّحاد: تَرشيدُ السلطةِ وتَعزيزُ التشريع، الطبعة الاولی، سلسلة إصدارات مركز البيان للدراسات والتخطيط، بغداد، أيار – مایو ٢٠٢٢.

٥) د.ليث عبد الحسن الزبيدي و د.کاظم علي مهدي، مجلس الاتحاد والتوازن التشریعي في العراق، مجلة قضايا سياسية، جامعة النهرین، العدد ٣٧-٣٨، بغداد، ٢٠١٤.

٦) نور ليث مهدي، التنظيم الدستوري لتشكيل مجلس الاتحاد في دستور جمهورية العراق لسنة ٢٠٠٥، المجلة القانونية، جامعة القاهرة، المجلد ٥، العدد ٥، ٢٠١٩.

ج) دەستوور:

دەستووری کۆماری عێراق ساڵی ٢٠٠٥.

د) بڕیارەکانی دادگا:

قرار محکمة اتحادیة العلیا العدد (٧٢ / اتحادية / ٢٠١٢ ).

‌ه) وتاری ئەلیکترۆنی:

١) دلاوەر عەلائەدین، كەلێنی ئەنجومەنی فیدرالی رێگرە لە دەوڵەتسازی، لەسەر ئەم ماڵپەڕەی خوارەوە دەبینرێت:

https://www.meri-k.org/publication/last visited: 17/12/2024.

٢) د. سعدي الابراهيم، جدوى تشكيل مجلس الاتحاد العراقي، متاحة علی الموقع الالکتروني التالي:

https://marsaddaily.com/news.aspx?id=6434&mapid=29/last visited: 19/12/2024