The Legitimacy of KRG’s Abstention to Implement the Federal Laws

By Mustafa Muayad - Head of Baghdad office in Salt & Associates - m.ridha@saltandassociates.com - 00964 78 050 10222

By Mustafa Muayad – Head Of Baghdad Office

Pursuant to the Iraqi constitution, Iraq is following the federal system, which consist of a decentralized capital, regions, and governorates, as well as local administrations according to article (116) which states:
“The federal system in the Republic of Iraq is made up of a decentralized capital, regions, and governorates, as well as local administrations”
Therefore, this Constitution, upon coming into force, recognize the region of Kurdistan, along with its existing authorities, as a federal region according to article (117). The current Constitution included provisions illustrate the authority of the Federal Government, Regional Government (KRG) and the Governorates as it divide the said authority as follows:

I. The exclusive authorities of the Federal Government:
According to the article (110) which states, “The federal government shall have exclusive authorities in the following matters:
First: Formulating foreign policy and diplomatic representation; negotiating, signing, and ratifying international treaties and agreements; negotiating, signing, and ratifying debt policies and formulating foreign sovereign economic and trade policy.
Second: Formulating and executing national security policy, including establishing and managing armed forces to secure the protection and guarantee the security of Iraq’s borders and to defend Iraq.
Third: Formulating fiscal and customs policy; issuing currency; regulating commercial policy across regional and governorate boundaries in Iraq; drawing up the national budget of the State; formulating monetary policy; and establishing and administering a central bank.
Fourth: Regulating standards, weights, and measures.
Fifth: Regulating issues of citizenship, naturalization, residency, and the right to apply for political asylum.
Sixth: Regulating the policies of broadcast frequencies and mail.
Seventh: Drawing up the general and investment budget bill.
Eighth: Planning policies relating to water sources from outside Iraq and guaranteeing the rate of water flow to Iraq and its just distribution inside Iraq in accordance with international laws and conventions.
Ninth: General population statistics and census.
Note that the above mentioned authorities are exclusive for the Federal Government only. Further, the Constitution give the power to the regional Government to exercise its authority on other issues which it has not been stipulated in the exclusive authorities above, according to article (115) which states that “All powers not stipulated in the exclusive powers of the federal government belong to the authorities of the regions and govern orates that are not organized in a region”.

II. The common authorities between The Federal Government and The Regional Government
Pursuant to article (114) the following competencies shall be shared between the federal authorities and regional authorities:
First: To manage customs, in coordination with the governments of the regions and govern orates that are not organized in a region, and this shall be regulated by a law;
Second: To regulate the main sources of electric energy and its distribution;
Third: To formulate environmental policy to ensure the protection of the environment from pollution and to preserve its cleanliness, in cooperation with the regions and governorates that are not organized in a region;
Fourth: To formulate development and general planning policies;
Fifth: To formulate public health policy, in cooperation with the regions and governorates that are not organized in a region;
Sixth: To formulate the public educational and instructional policy, in consultation with the regions and governorates that are not organized in a region;
Seventh: To formulate and regulate the internal water resources policy in a way that guarantees their just distribution, and this shall be regulated by a law.
Referring to article (115) again, in respect to the said common authorities state that “With regard to other powers shared between the federal government and the regional government, priority shall be given to the law of the regions and governorates not organized in a region in case of dispute”.

III. The authority of the Regional Government
According to article 121(1), (2) the authorities of the Regional Government are as follows:
First: The regional powers shall have the right to exercise executive, legislative, and judicial powers in accordance with this Constitution, except for those authorities stipulated in the exclusive authorities of the federal government;
Second: In case of a contradiction between regional and national legislation in respect to a matter outside the exclusive authorities of the federal government, the regional power shall have the right to amend the application of the national legislation within that region;

Dispute resolution between the Federal Government and the Regional Government:
In the event of any disputes that might arise between the Federal Government and the Regional Government regarding a legislation, modification or abstaining from implementing any laws, it shall be referred to The Federal Supreme Court according to the article (93) which states that:
“The Federal Supreme Court shall have jurisdiction over the following:
First: Overseeing the constitutionality of laws and regulations in effect;
Second: Interpreting the provisions of the Constitution;
Third: Settling matters that arise from the application of the federal laws, decisions, regulations, instructions, and procedures issued by the federal authority. The law shall guarantee the right of direct appeal to the Court to the Council of Ministers, those concerned individuals, and others. Fourth: Settling disputes that arise between the federal government and the governments of the”.
Therefore, The Federal Supreme Court shall interpret the laws to determine under which category it should fall from the said authorities to rule accordingly.