Those latest comments and the reactions to them illustrate the continuing stalemate on one of the more fundamental issues in Iraqi constitutional law. Kurdish president Mahmud Barzani seemed angry with Maliki for his lack of interest in federal regions outside Kurdistan, despite the constitutional provisions that exist. For their part, some of the participants at the Iraqiyya meeting seemed to condemn federalism as a principle altogether (rather than new federal regions), to the point where media stories about Salih al-Mutlak supposedly rejecting the federal status of KRG began circulating. In this way the whole debate gets polarised: The KRG is actively abetting federal projects outside its own territory and is claiming powers that are not even in the constitution, whereas some Iraqiyya leaders give the Kurds reason to doubt that the federalism granted to them by the constitution is indeed guaranteed. Another complicating factor relates to the discrepancies between the constitution and the provincial powers law of 2008. When Iraqiyya is claiming “more power for the governorates”, do they mean more power than granted to them by the provincial powers law of 2008, or just a proper implementation of that law? In article 115 of the constitution federal regions and governorates enjoy exactly the same residual powers and are arguably created almost equal; in the provincial powers law of 2008 (and the draft oil and gas law) a greater degree of administrative subordination to Baghdad is clearly envisaged.
Many suspect that local politicians in Iraq are contemplating the creation of federal regions for the sake of getting bigger budget shares. Some apparently believe they can ask for anything in the name of the existing governorates as long as they do not utter that “divisive” F word! However, the current practice of allocating a certain share of the budget to the sole federal region (Kurdistan) and exempting it from contributing to other central government expenses than defence and the foreign ministry has no constitutional basis as such, and would become a matter of debate if more federal regions were created. The bottom line is that unless there is constitutional revision to clear up the distinction between a federal region and a governorate, the discussion about the Iraqi state structure is likely to remain detached from reality and will serve as yet another distraction from the more pressing issue of consolidating a government that can provide services and infrastructure for the Iraqi population.
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