Federalismos

Via: Constitutional Notions, Eamad Mazouri no KRG (orgão Kurdo)

"(...)First, we need to clarify once again, that a federal system consists of two or more territories coming together voluntarily on common grounds where they have shared interests for some common goals. (...)

We have to admit that the Iraqi model of federalism that has already being agreed upon, can be called (Asymmetric federalism), where states are granted different powers, or some possess greater autonomy than others do.

While (Symmetric Federalism) means that, every component state of a federation possesses the same powers. This is often done in recognition of the existence of a distinct culture in a particular region or regions. In Spain, "historical communities" such as Navarre, Catalonia, and the Basque country have more powers than other autonomous communities, partly to deal with their distinctness and to appease nationalist leanings, partly out of respect of privileges granted earlier in history.

Naturally, Kurdistan should follow the suit for the same reasons mentioned above. By the same token, there is another common issue in federal systems where there is a conflict between regional and national interests, or between the interests and aspirations of different ethnic groups.

In some federations, the entire jurisdiction is relatively homogeneous and each constituent state resembles a miniature version of the whole; this is known as 'congruent federalism'.

On the other hand, incongruent federalism exists where different states or regions possess distinct ethnic groups. This latter is what apply to Kurdistan in relation to Iraq.

The ability of a federal government to create national institutions that can mediate differences that arise due to linguistic, ethnic, religious, or other regional differences is an important challenge. The inability to meet this challenge may lead to the secession of parts of a federation or to civil war, as it occurred in United States and Switzerland.

Generally, people with distinct identity going through such an experience are prune to record their rights in most details within the intended constitution. This process of detail recording helps guaranty those rights against any possible present and future misinterpretation of their rights. The best example on that would be South African Constitution, which thoroughly details the rights of all with no exception. The Kurds definitely need to have their rights stated in details in the new constitution without leaving any room for misapprehension or misconception. The same goes for the others as well. Since Iraqi people with all their ethnicities, religions, sects and factions have chosen to build a new federal country, and then the people ought to be able to decide, lead the way and choose how they want to be part of that union.

Often, there are issues that democratic countries do not trouble to endorse in their constitutions; nevertheless, they become reality, as it is the case with Christianity religion in the United States of America, which has flourished, more than any other country despite the fact that the American constitution does not specify Christianity as the official state religion. In fact, it has clearly separated between state and religion.

There are also other issues that need to be paid some attention. Take a glance at the compact theory of Jefferson -one of the major writer of the American constitution, that states, federalism is to have contracted one another to establish a federal government and to have delegated some of their powers to it, reserving the rest for themselves. The federal government often merely issues broad directives to the Länder (self-governing regions), which then have broad discretion as how to implement them.

In Germany, the division of powers is less one of content than of administration: For example, article X of the Bill of rights to the American constitution provides that: (The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people).

That means any powers not covered in the constitution are left to the states in U.S. This is one of the significant issues and under no circumstances should it escape the attention of the Kurdish delegates to the constitutional committee. It is essential to have one single separate article that clearly state this principle.

In some system, it is stipulated that since the union is truly based on voluntarism, then the states should have the right after certain numbers of years to secede from the union, naturally after following a quantity of procedures such as conducting a free referendum to let the people decide their own fate. There is no reason why Kurds should not request the same thing.

Finally, it is common that during the historical evolution of a federation there is a gradual movement of power from the component states to the centre, as the federal government acquires additional powers, sometimes to deal with unforeseen circumstances. The acquisition of new powers by a federal government may occur through formal constitutional amendment or simply through a broadening of the interpretation of a government's existing constitutional powers given by the courts,( the Supreme Court). Usually, this is the case with true democratic federal unions such as United States of America where initially the federal government was granted little powers while most of the powers were retained by the states. When the reverse is the case, it gives reverse results also. Whilst the federal government keeps most of the powers, the states gradually and overtime slips away from the center into secession and the union dissolves.