The 2005 Iraqi Constitution was meant to establish a federal system and distribute power between federal and sub-federal entities (regions and provinces). The constitution gives sub-federal governments significant autonomy in local decision-making and also to substantially participate in decision-making at the federal level. Additionally, their legislation takes precedence over national laws in any conflict which involves the application of shared powers.
Regarding provincial councils, the constitution stipulates that they are not subject “to the control or supervision of any ministry or any institution not linked to a ministry.” Furthermore, the Iraqi Constitution states that provincial councils have “broad administrative and financial authorities to enable them to manage their affairs in accordance with the principle of decentralized administration, and this shall be regulated by law.” Moreover, it explicitly emphasizes “their independent finances.” In principle, the federal government cannot exercise powers over matters that are constitutionally considered within the competence of the province without its consent.
Federal legislature elaborated these general constitutional principles and rules into the law of “Provinces Not Incorporated into a Region (Provincial Law).” The bill was set to devolve powers to provinces and provide a legal framework for establishing federal regions equivalent to the Kurdistan Region. However, the extent of the devolution of powers, the decentralization in the Provincial Law, and its compatibility with the constitutional mandate for a federal system are contentious.
The provincial Law of 2008 itself is controversial and contradictory. The Provincial Law subjects provincial councils to supervision by the federal parliament. The legislation makes governors directly responsible before the federal authorities, meaning they can be removed from office by an absolute majority of the parliament at the request of the prime minister.
Moreover, the Provincial Law has been amended several times, and each amendment has added more contradiction between various articles within the law itself and with the constitution too. The removal of a governor by federal authorities is one of the many constitutional violations in the Provincial Law.
In its original 2008 text, the legislation provided that a governor can be removed either by members of the provincial council or by parliament upon the request of the prime minister. In any case, a dismissed governor could appeal to the Federal Supreme Court against the removal decision. In 2013, parliament amended the Provincial Law and repealed such jurisdiction for the Federal Supreme Court and instead provided that the governor can appeal the dismissal decision to the administrative court.
On several occasions, the Supreme Court was asked to decide on the constitutionality of the provincial law. The response from the court is not surprising given the court has often legitimized the federal government’s position in this regard. For example, in 2015, the then-removed governor of Mosul challenged the constitutionality of the Provincial Law provision that entitled federal authorities to dismiss the governor. He argued that such a power contradicts the Iraqi Constitution and does not lie within the exclusive competences of the federal government.
In response, the Court argued that the 2005 Iraqi Constitution neither provides for parliament to dismiss the governor, nor prevents it from that, since parliament is entitled to override the executive branch (Article 61) and the governor is part of the executive branch—as the parliament, pursuant to Article 61, can dismiss ministers, it is, therefore, authorized to dismiss governors who are the highest executive chief in their province. Furthermore, the Court ruled that parliament can dissolve provincial councils and, as such, it can also dismiss governors. Through this decision, the Court legitimized the expansion of the federal authorities’ power as reflected in the Provincial Law.
Over the years, federal authorities in Bagdad have substantially limited the extent of the constitutional powers of the provincial council and governor. In practice, provinces are mostly weak and incapable of exercising their powers because of increased dependence on the federal authorities for a budget. The provinces’ administrative and delivery of public services is also under the influence and direction of federal government ministers.
On the subject of removing governors, the Iraqi Parliament has a record of dismissing governors who are elected by the provincial councils, which themselves are elected in local elections. Indeed, removing and replacing governors has become one of the highly contested political issues in recent years; notably, following the removal of governors in both Kirkuk and Mosul. Unfortunately, as with many other political problems in Iraq, federal authorities and political functions have often abused constitutional and legal rules to compete for influence, authority, and power.
Majida Ismael holds a Ph.D. in Public Law/Constitutional Law from the University of Liverpool, England.
The views expressed in this article are those of the author and do not necessarily reflect the position of Kurdistan 24.
Editing by Karzan Sulaivany