Current Trends in Constitutional Reform
The initial discussion on Current Trends in Constitutional Reform affirmed that the debate on the second chamber and how to define its role, in order to best complete the institutional framework, is ongoing in almost all federal or devolved democracies.
A federal constitution typically sets up a system of cooperation between regional governments and the central government as well as between regional governments themselves. On national sensitive issues the second chamber might play an important role with respect to facilitating this cooperation, ensuring resources and burdens are distributed equally. The construction or the reform of a second chamber within federal and devolved democracies poses and relates to a number of questions, such as: How are disagreements between regions to be resolved? How are disagreements between the regions and the central government to be resolved? Will the Members of the Federation Council be elected or appointed? Where appointed, should this be done by the President, the Parliament or Regional authorities? What qualifications should representatives have, and what provisions should be made to ensure adequate territorial representation? What powers should be given to the Federation Council, and on what issues? As mandated by Article 142 of the Iraqi Constitution, the Constitutional Review Committee has considered a number of these questions, including the role the Federation Council might play in resolving disagreements between the regional and central governments.
There are both symmetric and asymmetric models of federalism. In symmetric models, each region is granted equal powers, where as in asymmetric models, certain regions are granted greater powers than others. A well functioning second chamber has been considered far easier to secure within symmetric models. In the Iraqi context it will be fundamentally important to understand what future status Kurdistan might have within the Iraqi federal system – will it have the same powers as other regions that may be formed, or will it be given special status? The answer to this might well depend on how other areas of Iraq develop, specifically whether they are formed into a few larger regions, or fragment into smaller regions or governorates.
The Federation Council would have its own specific functions. Article 65 states that the functions of the Federation Council should be decided by the Parliament based on a two thirds majority. However, the interpretation of the article can directly affect the meaning therefore agreement on the interpretation should be attained. The presentation of two chamber system showed that there are different ways in which bills may be challenged or Acts of Parliament opposed and that mechanisms should be in place to address such challenges.
There has been ongoing, far-reaching debate on the political challenge of the devolution of powers and the way these powers may be exerted. The powers granted to each chamber should be carefully considered in the interest of avoiding a break-down of government. Provisions should make it clear which chamber prevails in the case of disagreement, and only one chamber should have the power to issue a vote of no confidence against the government. Mechanisms, such as Select Committees, could be set up to help resolve disagreements between the two chambers in a constructive and democratic manner. Ideally, it was suggested, the second chamber should have the power to amend and consider laws and draft laws, but not have the power to bring legislation to a standstill. Special provisions might however be made to safeguard fundamental laws and the Constitution from amendments or changes initiated by only a single chamber.
With regards to the Iraqi context, participants recommended that in order to protect the federal system, powers in Iraq should be given to governorates. It was emphasized that the rights of minorities, in particular, should be protected by the second chamber from any actions that may be taken from the first chamber, which will be the primary decision-making body. There was considerable support for the enhancement of local federal powers with preference that the central government should perform limited functions and regional institutions should have the ability to perform local functions. This method would not challenge the unity of the state because the central government would have a fundamental role and responsibilities but in order to keep within the framework of unity it was considered important to provide local, regional institutions with considerable powers.
Territorial Perspectives and their representation at national level
Territorial perspectives refer to a geographic representation of various regions at the national level. The reform trend of second chambers in federal and devolved democracies tends to support the strengthening of the role of representing the interest of the territorial entities (Regions, States, Länder) at a national level.
Territorial entities will inevitably place significant importance on balancing financial and development issues. Financial and developmental imbalances can be detrimental to national stability, promoting both dissatisfaction and potentially migration. Kurdistan is experiencing a great deal of immigration at present, primarily as a result of its greater levels of development. This has consequences also for the provision of education and health care. It was suggested that lawmakers should work towards eliminating regional differences and promote regional equality.
In examining the experiences of other countries, it is important to consider, perhaps the most important experience in Kurdistan, the culture of tolerance and democracy that has taken root since 1992. Fundamentally, winning parties have not attempted to eliminate those they have defeated, and special representation has been given to regional minorities, such as Assyrian Christians. Suitable methods for promoting and protecting the rights of minorities were documented during the meeting and are noted in the relevant section of this report.
The discussion provided the opportunity to consider federal systems, world-wide, noting particular methods that will contribute to developing the most appropriate options in order to create the best federal model for Iraq and its people. This report considers the systems in Italy, Germany, India, Canada, Belgium and the United Kingdom.
The Italian Constitution, 1948, states that the Senate should be elected on a regional basis. Every Member of Parliament represents the nation and the ultimate goal is national unity. This integration process is already linked to the idea or notion of regional election and there are more legislative powers in the regions. The constitution introduced the notion of regional legislative powers and they have been extended by reform in 2001. Different types of federalism, namely Fiscal federalism, differentiated federalism, and municipal federalism, were defined and examples of each provided.
In fiscal federalism, the main issue is the equal distribution of resources. Two rules must be complied with throughout the nation. First, the level of benefits in terms of healthcare must be equal; for example, a citizen in one region must be able to enjoy the same type of benefits that are available to citizens in another region. Iraq must consider the importance of solidarity between the regions as equalisation shows equal rights for the citizens in the state. Second, basic responsibilities and functions of each local authority or regional authority include the ability to provide services that are important for the life of citizens. This is not an abstract idea; in Italy, there is presently a bill introduced on fiscal federalism.
Differentiated federalism is the idea that there is no symmetry, no single model or practice but there is the possibility of differentiating between the different powers of the regional authorities. It supports the ability to adjust to diverse situations and the ability to adopt a model that is flexible rather than rigid.
Municipal federal supports the view that there is a need for a ‘central’ element within the system. In Italy, the ‘central’ role of the Senate links up the forms of federalism and provides representation for regional interests with a clear aim in mind - national unity.
The German example also focussed on, and achieved, national unity through its federalist system. The Bundesrat, composed of 69 members of state governments, elected or appointed by the Prime Minister, is one of the permanent constitutional organs of the Federal Republic of Germany which represents the interests of Federal States. The status and function of the Bundesrat is described in Article 50 of the Basic Law or German Constitution, which, it was noted, has included the European dimension in national policies.
The German model was based on the principle that federalism is achieved through the union of several states forming one national state where the individual member states still retain individuality. Particular issues that are in the interest of all of the people are regulated at the national level, though all other matters are regulated by individual member states. In a federation, the classical horizontal division of the powers of state (legislative – executive – judicial) is complemented by a vertical division of power between the state as a whole and the individual member states. Distribution of power means control of power and protection against abuse.
There are several other positive points of a federal system such as in Germany. There is ‘more democracy’ as a citizen has two opportunities to exercise the right to vote as elections are held for the parliament of the state as a whole as well as the parliaments of the individual member states. In addition, the chances of political parties are greater and competition is encouraged because even if one is a minority, political responsibility can be attained in the individual member states.
The Bundesrat has the role of checking and discussing bills and utilises a mediation committee, which balances the interest of the Bundesrat and the Bundestag. It is a permanent joint committee, composed of 32 members, in which the Bundesrat and Bundestag are both equally represented. This method clearly represents the notions of federal equality. The mediation committee is a ‘helping mechanism’ designed to work through the suggestions to find a compromise and may be a particularly useful mechanism for Iraq to consider more carefully.
The Indian model did not suit any existing models when its federal system was designed. India suffered many of the same doubts as are presently expressed in Iraq such as fear of the potential divisions federalism may indirectly cause, along with the questions concerning the potential effects of decentralization. However, bold decisions were taken, and history has shown unity and diversity can be reconciled through a federal framework. Asymmetric federalism did not come at the cost of India’s national unity or cohesion. The number of states in India grew as it became clear that smaller states were able to prosper. Each state is entitled to representation at the Second Chamber, but the number of Senators is proportional to the population of each state. Additionally, there are a number of Senators selected as representatives of the sciences, arts, and professions.
It is important to recognize that a second chamber can do more than provide legislative oversight. It can also contribute to a political system by providing a space for non-political public figures; allowing new leaders to emerge in the first chambers by offering a role to outgoing leaders; and enable the political representation of communities who would otherwise be under-represented
The Canadian model provides a good example of how regional parliaments cooperate extensively and productively with the national parliament. Whilst disagreement is natural, debate can almost always overcome these differences. One of the major roles of a second chamber is therefore to identify and debate controversial issues, identifying common ground and compromise, ultimately finding a consensus on what might be implemented in terms of legislation. Debate should retain focus on the ideal that federalism is about giving power to citizens, not regions.
Finally, the Belgian system could be carefully considered, in particular, due to its multi-cultural, multi-linguistic characteristics. In Belgium, special majority laws protect the rights of the two linguistic communities, with further provisions for the evaluation of a bill which a linguistic group considers discriminatory. The cultural communities are also represented in the second chamber. The Belgian Senate (71 Members) is composed of 40 Members directly elected, 10 appointed Members (prominent personalities), and 21 Members who are also Members of a Community Council (10 from the Flemish Council, 10 from the French Council, and 1 from the German Council).
Territorial Perspectives and their representation at national level – ‘Membership Criteria and Mechanisms’
The experiences and perspectives of other countries, particularly the United Kingdom, were discussed in order to provide participants with details and information that could be utilised in the development of membership criteria and mechanisms for its second chamber or Federation Council. There was a particular focus on the involvement of minorities in local politics and reasons for and against the use of seats “reserved” for cultural and ethnic groupings.
Britain has now become a multi-racial, multi-ethnic and multi-faith society which has led to minority populations within the diverse country. Given this range of diverse citizens, the UK has implemented and continues to enforce legislation against discrimination. Although such legislation is in place to protect minorities from discrimination, minority communities in Britain still struggle to find a way to be involved in the mainstream of British politics. Fortunately, advances have been made in recent years; ordinary people can be appointed to the House of Lords based on experiences, skills and expertise, rather than social status, which has contributed to the enhancement of the debate in that second chamber and in the scrutiny of the legislation, which may be sent from the elected chamber, the House of Commons.
In the House of Commons there are 642 members but only 12 members or 2% of this house actually belong to minority communities. In the House of Lords, there are 747 members with 30 members or 8% from minority populations. This is an improvement, but it is clear that there is still a disparity. The importance of dialogue within communities was stressed as it may allay imaginary or real fears and mistrust about each other, which can be very useful in bringing different communities together. When these types of issues are not addressed the social consequences can be very serious. In order to alleviate some of the mistrust and the ‘fears’, Iraq may wish to decentralise political power to attain a proper devolution. It is not yet clear what the regional and local structure will be in Iraq though in the United Kingdom the structure is largely based in local councils. The local authorities determine the budgets that they can spend and the government makes contributions based on needs, but local decisions are made by the local councils.
Another important element to be considered alongside membership criteria and mechanisms is that of the legitimacy of the second chamber; a second chamber must be legitimate and must be seen by the citizen to be legitimate. The extent to which a second chamber is legitimate goes to the very reason for its existence. If a second chamber is to have any role, at all, that role involves challenging the decisions of the first chamber, the democratically elected body which, logically, will be the more representative of the two bodies. If the second chamber is to challenge the first chamber it must be accepted as legitimate. The question, therefore, is what confers legitimacy on a second chamber? Who will select the members of the second chamber and how can they be legitimised?
Many participants supported that elections confer legitimacy on the second chamber. It has been said that second chambers not directly elected lack the democratic legitimacy and hence the real political influence that popular election confers. However, many second chambers are not elected. There are approximately 67 second chambers worldwide; 21 are wholly, directly elected (e.g. Australia); 15 are elected but some members are elected indirectly (e.g. France); 14 have a mixture of elected and appointed representatives; 17 are appointed (e.g. Canada, Germany).
In the UK, in 2000, a Committee of Enquiry found that the second chamber lacked political legitimacy and confidence to do its job. The Committee of Enquiry found that the most important influences were first its powers, second the characteristics of its members and third the perceived legitimacy of the membership. The key points in the debates that followed may be stated as follows.
Arguments in favour of elections:
¨ Only elections can confer legitimacy
¨ Only elected second chamber will have authority to hold the government to account
¨ Only elections make it clear that membership of the second chamber is a job and not an honour
¨ Only elected members put the interest of the electors first
¨ Those elected derive legitimacy from the electors, the ultimate source for sovereignty
¨ Only those elected have a moral right to exercise power in the name of the citizen
¨ Free elections are an effective way of legitimising a institution
Arguments against elections, in support of appointment:
¨ Elections divide a country even in mature democracies
¨ Elections place power in the hands of party machines, not the people
¨ Elections can result in an assembly that is unrepresentative of a diverse society because, for example, women, ethnic groups, professions or even regions are unwilling to stand for election or find it difficult to be nominated in the first place
¨ It is said that elections do not balance gender, religion, ethnic diversity
¨ Appointment is more likely to result in a chamber of ordinary citizens as opposed to professional politicians
¨ Appointment is more likely to have a chamber distinct and different from the lower elected chamber
There are powerful arguments on both sides in favour of elections and in favour of a system of appointment, and indeed the debate between the two occurs in mature democracies as well. There is clearly no right or wrong answer. Iraq may find it useful to more closely examine the United Kingdom system that took a centralised government and transformed into a federal model, particularly considering the systems established in Scotland and Wales. In determining the most suitable solution for Iraq, however, it is essential to consider Iraq’s politics, history and the people. In order to gain the confidence of the people, it was said that appointing members might be more suitable. It is imperative that the citizens trust the federal and democratic institutions of Iraq.
If Iraq prefers a system of appointments, it was said that the central government should not be mandated with making such appointments. If Iraq prefers a system of elections, it may be more beneficial to conduct elections on a territorial basis. There has been debate on this issue and it seems that the majority of participants supported the election of members of the assembly by direct elections. Suggestions have been made as to the number of votes of each governorate, for instance four (4) per governorate with an exception of Baghdad which will have eight (8), plus an additional six (6) seats for minorities, with a total of eighty-two (82), to be regulated by legislation. Regardless of whether representation is achieved through election or appointment, which will surely be debated further once all of the options have been thoroughly reviewed, there was consensus on the importance of equal representation.
An additional suggestion, with a view to pre-emptively protect minorities, favoured the idea that the Iraqi second chamber should reserve seats for ethnic, religious and racial minority groups who may never have had the opportunity to be part of the mainstream Iraqi society and who may feel excluded from the system though it is the responsibility of the chamber to decide how many seats should be reserved or if this is even a suitable option. There was support for the allocation of seats for minorities, though it was suggested that the decision on how many seats should be assigned should be made by another body.
In discussing the selection of members it was also considered important to bear in mind that a second chamber will deal with issues specific to the Federal State and it is therefore important to have a mechanism to ensure that the members in that chamber will represent federalism (as opposed to representing the population, which will be represented in the existing assembly).
It was widely accepted that consensus on constitutional questions is difficult to achieve and, returning to the United Kingdom model, it still has not been achieved. A more practical, productive approach could be the creation of a system that works for Iraq, initially, and in time it can be amended, refined and continually improved. It was strongly emphasised that the lack of consensus should not delay the process otherwise a complete consensus may never be achieved and the ultimate goal of establishing a second chamber could be jeopardised.
Article 65: Options for Implementation
A number of questions have been raised with respect to designing and implementing a second chamber in Iraq, including: What will be its powers, and what will be its relation to other chambers? How many members, and how will these be selected or appointed? What will be their powers? Should each member have one vote, and what will be their powers? How can conflicts of interest be avoided? How can a duplication of the first chamber be avoided?
These questions ought to be considered in the correct order; however, at the basis of many of them is the issue of what the ultimate purpose of the second chamber should be. A number of suggestions were presented on this issue.
The first suggestion was to increase the accountability of the first chamber, which may be seen as a dictator of sorts, given that other institutions do not have authority over it. It was noted however that some oversight is offered by the President of the Republic, as well as his Deputies, in addition to a number of Committees and by the Constitution itself, which defines the scope of what laws may be passed. Iraq’s regions also have the possibility of limiting the influence of legislation passed by the first chamber. The second chamber would usefully add a second layer of oversight and scrutiny.
The second suggestion was to address mistakes made when designing the first chamber. Due to the nature of elections in Iraq, and possible weaknesses in current election law, there exists a gap between Members of Parliament (MPs) and the people of Iraq. Citizens vote for closed lists only, and develop as a consequence no relationship with their MPs. The current system has also allowed some parties to monopolize political discussion and committees, much to the detriment of genuine democratic debate. Given the current power of certain political groups, there is a danger the first chamber might be reduced to a simple “voting machine,” with decisions made elsewhere.
The first chamber is at present faced with the extensive task of coping with a crisis and rebuilding the Iraqi state. A second chamber might be able to redistribute some of this burden, and spend some time reflecting on the future of Iraq within a more extensive and long-term context.
Finally, it was considered necessary to increase competencies and skills to the Parliament. The nature of the current list system and the principles of majority rule have meant there is often a lack of competencies within the Iraqi Parliament, or that competencies are not properly distributed. A second chamber might offer the possibility of including scientists, academics, and other professionals in legislative deliberation, ensuring all of Iraq’s talent is used in the reconstruction of the state.
All these contributions are, however, clearly premised on its functionality and legitimacy in the eyes of the Iraqi people. As such, a number of opinions were presented on the best method of selecting Members of Iraq’s Second Chamber, such as implementing a system of appointments, which would offer the benefit of ensuring all communities and talents are represented, potentially overcoming some of the aforementioned obstacles that have emerged as a result of present election laws and votes, greatly hindering the work of the first chamber.
Elections would however offer the second chamber greater legitimacy, as there is much distrust of central administration in Iraq. It is especially unclear who might legitimately carry the final say on who is appointed to the second chamber. If elected, it will be important to ensure Members are adequately representative of Iraqi society, with some participants stating that only proportional representation can ensure the rights of all citizens are protected. Elections should also recognize the inadequacies of current election laws, possibly through reform or amendment.
Iraqi participants also requested the input of foreign participants on these complex questions, with the suggestion that written consultation with various federal institutions present, as well as the Constitutional Review Committee, might continue beyond the Conference.
The success of federalism in Iraq is important not only to its people, but also to the Middle East as a whole. Should it take root, it might eliminate one of the principal causes of regional instability. The federal system was not introduced easily to Iraq, and it continues to be a point of controversy. A lack of familiarity with its philosophy and principles is at the root of this problem, with its opponents frequently characterizing it as a system that will divide, rather than unite, Iraq. Further education, dialogue and consultation are therefore needed with the Iraqi people on this topic. In addition, past injustices, in particular in the Kurdistan region, should not be forgotten. Proper relations between Iraq’s regions and its central government are crucial in order to avoid a return to authoritarianism, and to guarantee the rights of its many and diverse communities. A Federation Council has been considered a useful instrument for national unity and indeed federalism is considered necessary for the unity of Iraqi society.
Conclusion
The conference was successful in meeting the intended objectives of creating dialogue on the methods for establishing a Federation Council for Iraq. The conference provided a forum of some of Iraq’s most senior political figures and leaders, distinguished members of the Iraqi National Assembly and the Kurdistan Regional Parliament, as well as politicians and experts from Belgium, Canada, Germany, India, Italy, Spain and the United Kingdom, government officials, academics, media and civil society, and engaged all participants in dialogue identifying potential options appropriate for Iraq in developing federalist and devolved solutions for the development of a Federation Council in Iraq.
