Posted by andreas from p3EE3C6AA.dip.t-dialin.net (62.227.198.170) on Sunday, November 24, 2002 at 7:56AM :
FYI: "Towards a Federal Iraq based on justice: a comparative legal study - Part IV"
Would be helpful to see Assyrian proposals more elaborated than AUA's latest "Declaration of Assyrian organisations" and somewhat more along the detailed lines of the below study - even if that is only a starter.
I think, the idea wouldn't be too far fetched that Assyrians are the ones not only most eligible but also most responsible to specify what they want at all.
How long will they wait?
A tip:
Look also at the model left out in the below text: "Wales" [in UK, I mean].
There aspects are currently under debate which might prove relevant also to Assyrians: I.e. that the preservation and further development of a minority languages needs some coherency in settlement patterns & targeted encouragement by cultural/adminstrative measures like funds allocation and special training which transcends the usual "minority protection".
A good contact here is Plaid Cymru - The Party of Wales at http://www.plaidcymru.org/
I am quite confident that the impressive number of Assyrian think tanks having mushroomed in the 80+ years of diaspora will take care of such aspects, of making political contacts for exchanging ideas and finally of enshrining them into a long overdue Assyrian constitution for any future Assyrian political/adminstrative entity of any degree of independence.
And what about the Assyrian ideology of being descendants of the world's cradle of civilization with all the pretended pride flowing from that political mythology being automatically conferred also to the last and very least lazy scoundrel?
Thanks to God, human rights are not "granted" or not on the basis of muddled historical claims and unarticulated and self-mutilated identities but they are inalienable rights based on the universal individual dignity of human beings: otherwise they wouldn't be hardly ever achieved.
So disappointing it therefore may sound to some Assyrians, also the Bushmen/Pygmees of the African Kalahari have human rights - no other than Assyrians.
Which seems to be the only concept that could finally save also Assyrians.
----------------------
Full text after excerpts.
"[...] All communities in Iraq, ethnic and religious, must be recognized as
federal entities on personal basis, that means a federal entity with out
territorial borders. Sometimes an ethnic group and a religious group
resemble in one, like the Assyrians for example, who are an ethnic group
and entirely Christians. Also these federal entities must be vested with
all powers necessary for running the affairs of the group without
interference from outside and equal to the regions and within the limits
of the constitution. It is also logical that every region and community
should have its own democratic constitution. [...]"
"[...] Ethnic communities:
1. Education: Includes all levels of education
2. Promotion of culture and language
3. External and internal relations, within the limits of the
constitution
4. Economic development of the community
5. Social affairs, like health care, welfare, sports and the like. [...]"
"[...] And in cases where a community combines in itself both characteristics,
ethnic and religious, like Assyrians for example, the respective
community shall enjoy both categories of competencies, the ones for a
religious community and the ones for an ethnic community. [...]"
-------------------------
http://www.kurdmedia.com/reports.asp?id=1141
ARTICLES/REPORTS:
Towards a Federal Iraq based on justice: a comparative legal study -
Part IV
KurdishMedia.com - By Dr Kamal Berzenji
12 November 2002
Part IV
Federal structure and competence
The structure of federal states, i.e. the territorial composition could
vary extremely from a federal state to another one in number of
constituent entities (for example Russia with 89 entities and Belgium
with only six), and in the size of the population of these entities (for
example the state of Utta Pradesh in India with 139 million and only
13,870 in Appenzell-Innerhoden in Switzerland. The population within the
constituent entities (states or provinces) could be ethnically and
culturally widely homogenous (Germany and Austria for example) or
heterogeneous (Switzerland and India for example). In the case of the
existence of ethnic minorities within a federal province of a federal
state like Russia and Belgium for example, the constitution of the
concerned federal state and the constitution of the federal province
must take account of the rights of these peoples.
There is for example a very effective technique to solve the ethnic
conflict of a minority without a closed-off-territories by granting them
the rights of a federal constituency on personal basis (as a community
and not a region) and not on territorial basis, as it has been the case
with the German-speaking minority in Belgium, which lives within the
region of Wallonia. The Idea of personal autonomy has been developed by
the Austrian politician and social democrat "Karl Renner" at the
beginning of the 20th century.
Competence:
As far as the distribution of competencies between the center and the
provinces (states) concerned, so this matter is the core of the
constitution of any federal state, since it determines the quality and
the degree of decentralization thereof.
There are various methods to distribute the competencies between the
center and the states. The methods depend very much on the type and
history of federal states. Centrifugal federal states, i.e. states,
which were originally unitary states and have been transformed into
federal states (Belgium for example) tend to enumerate the competencies
of constituent states only, leaving the residual powers to the center,
while centripetal federal states, i.e. states, which were originally
confederations (Switzerland for example) tend to enumerate the
competencies of the center, leaving the constituent units the residual
powers. Another method is to enumerate the competencies of the center
and of the constituent units exclusively (Canada for example), and if a
new matter arises the courts will normally decide under whose competence
it falls. There is generally a shift now from dual federalism (where the
competencies of the center and those of constituent units are strictly
separated) to cooperative federalism (where the constituent units and
the center strongly cooperate).
There exist also in almost every federal state the so called concurrent
and parallel (accumulated) competencies. In the case of concurrent
jurisdiction the center and the states have jurisdiction, but the center
has the primacy. Only if the center fails to exercise its jurisdiction
the state may exercise its own jurisdiction in this matter. In the
second case, i.e. parallel or accumulated jurisdiction, the center and
the states may exercise their jurisdiction in parallel without
interfering in each others competence, in the field of research for
example. No federal system is a true copy of another one, since every
system has to respond to the specific situation needs of the respective
country.
1. Belgium
Belgian Federation has been characterized as bipolar and centrifugal.
The bipolar character means that unlike other federal systems, that
count at least eight to ten constituent units, each having its own
tradition, Belgium consists of only two large communities (like Iraq for
example), the Flemish Community and the French Community, plus a very
small German Community. Centrifugal federalism means, as stated above,
that the federal entities have developed out of a state which was
originally a unitary state.
Belgium is almost unique in its federal system, since it has two kind of
federal entities, the Communities and the Regions.
The Communities, as mentioned in Art 2 of the Belgian Constitution are:
1. The French Community;
2. The Flemish Community; and
3. The German-speaking Community.
And the Regions are according to Art 3 of the Constitution:
1. The Flemish Region (Dutch speaking);
2. The Wallon Region (French speaking); and
3. The Brussels-Capital Region.
Belgium thus comprises of six federated entities, all vested with a
distinct legal personality. Like states, each Community and Regions has
a legislation body (Council), and a government (Executive), as well as
its own Civil Service. That means there are six Councils, Executives and
administrations, but in reality there are five, because the Councils and
Executives of the Flemish Community and Region are organized and managed
as one entity.
The idea behind the bipolar character of Belgian Federation is, that
communities are responsible also for their members outside the Regions.
So the Flemish Community is responsible also for Flemish speaking
Community in Brussels. The German Community has not its own region,
since it is being administered by the Wallon Region.
Competencies of Communities and Regions
The devolution of competencies in the Belgian System is essentially
based on exclusive powers attributed to the Communities and Regions. The
idea behind this system is that it would be a useful means of preventing
conflicts of competence. There are also exceptions from exclusive rule,
since Communities and Regions has sometimes shared exclusive powers
(Tourism for example); or parallel powers, i.e., when a power exercised
by several authorities (like scientific research for example). There is
also a mod of limited concurrent powers, when the national authority
sets out the basic principles, leaving the power to complete to the
Communities and Regions (e.g. employment of foreign workers).
The Communities and Regions have also the so called implied powers, that
means they may regulate matters which are not enumerated, but only to
the extent that they do not infringe in any way on the competence
reserved by the Constitution for the National Legislation.
The Powers of the Communities in particular are
1. Cultural matters, i.e. promotion of language, fine arts, libraries,
Radio and TV and etc;
2. Education, i.e. education in schools;
3. Personalized matters, i.e. health care, family policy, care for
elders and etc;
4. Use of languages, the Flemish and French Communities are empowered to
regulate the use of language in administrative matters, for example.
For the German speaking Community, this power has remained as a national
matter.
5. Cooperation between Communities, i.e. conclusion of cooperation
agreements between themselves and with the State.
6. International Cooperation, the Communities are empowered as to
international cooperation within the scope of their competencies.
These above mentioned powers of the Communities cover their respective
unilingual linguistic Region. The Flemish Community and the French
Community also have jurisdiction over institutions in the bilingual
Region of Brussels-Capital.
The powers of Regions in particular are
1. Area and development planning, i.e. town planning, land policy, the
acquisition, development, and equipment of sites for heavy industry and
etc;
2. Environmental matters;
3. Rural redevelopment and nature conservation;
4. Housing;
5. Water policy;
6. Economic affairs, i.e. export policy, natural resources;
7. Energy policy, i.e. supply and local transmission of electricity, new
sources of energy, excluding those derived from nuclear power;
8. Subordinate authorities, i.e. supervision of the associations of
municipalities, general financing of municipalities and financing of
public work to be carried out by the municipalities,
9. Employment policy;
10. Public work and transport, i.e. roads, waterways, airports and the
like.
Canada
Canada is composed of ten provinces (states). The French speaking
Canadians form the majority only in Quebec, about 90%. It is also worth
mentioning that a third of the population of New-Brunswick is
French-speaking. In other provinces, Francophons amount to about 5% or
less of the population.
Provinces / Population / Area in sq. Km
Newfoundland / 541 000 / 371635
Prince Edward Island / 137 980 / 5660
Nova Scotia / 939 791 / 52841
New Brunswick / 754 969 / 71569
Quebec / 7 345 390 / 1 357 812
Ontario / 11 513 808 / 916 734
Manitoba / 1 143 509 / 547 704
Saskatchewan / 1 027 780 / 570 113
Alberta / 2 964 689 / 638 233
British Columbia / 4 023 100 / 892 677
Distribution of powers
The Canadian Constitution establishes the distribution of legislative
powers between the federal parliament and provincial legislatures:
1. Federal exclusive jurisdiction: Section 91 to 95 of the Constitution
Act, 1867, as amended subsequently, enumerates 28 matters to which the
exclusive authority of the Parliament of Canada extends.
These matters include among others, Militia, Military and Naval Service
and Defense, Regulation of Trade and Commerce, Postal Service, Currency
and Coinage, Weights and Measures, Indians and Lands reserved for the
Indians, the Criminal Law and etc.
2. Exclusive jurisdiction of provincial legislatures: The Section 91 to
95 of the Constitution Act, as amended subsequently, enumerate 15
matters to which the exclusive authority of provincial legislatures
extends. These matters cover large areas of affairs, the most important
of them are: Direct taxation within the province in order to the raising
of a revenue for provincial purposes, Land management, Transportation,
Property and Civil Rights in the province, the Administration of Justice
and generally all other matters of a merely local or private nature in
the province like Non-Renewable Natural Resources, Electrical Energy and
Education.
When a new matter arises, which simply did not exist before, it is
normally added to the Federal List of Powers, one example is
aeronautics. This is of course not happening automatically, but it must
be checked by courts, whether the new matter is of an identity, which
makes it distinct from provincial matters.
3. SWITZERLAND
Swiss Federation consists of 26 Cantons (States) 20 full Cantons and six
half-Cantons and its marked by high level decentralization and its weak
central government and strong degree of local autonomy. Switzerland is
almost the centerless state and it is an extreme example of federalism
and direct democracy. The Swiss Federation comprises of four linguistic
groups, German, French, Italian and Romanche. German is official
language in 17 Cantons, French in four, Italian in one. The remaining
four Cantons are multilingual. Three Cantons have French and German as
their official languages, while one has three official languages,
German, Italian and Romanche.
Canton / Population / Area in sq. Km
Zurich / 1 179 044 / 1 729
Bern / 958 192 / 6 049
Luzern / 326 268 / 1 492
Uri / 34 208 / 1 076
Schwyz / 111 964 / 908
Obwalden / 29 025 / 491
Nidwalden / 33 044 / 276
Glarus / 38 508 / 685
Zug / 85 566 / 239
Fribourg / 213 571 / 1 670
Solothurn / 231 746 / 791
Basel-City / 199 411 / 37
Basel-Land / 233 488 / 428
Schaffhausen / 72 160 / 298
Appenzell- / 52 229 / 243
Ausserhoden Appenzell- / 13 870 / 172
Innerhoden St. Gallen / 427 501 / 2 014
Graubunden / 173 890 / 7 106
Aargau / 507 508 / 1 405
Thurgau / 209 362 / 1 013
Ticino / 282 181 / 2 811
Vaud / 601 816 / 3 219
Valais / 249 817 / 5 226
Neuchatel / 163 985 / 797
Geneva / 379 190 / 282
Jura / 66 163 / 837
Switzerland is also divided by two main religious groups: Protestant and
Catholic. The religious cleavage, cuts across the linguistic cleavage.
There are eleven predominantly Catholic Cantons, seven are German, two
bilingual, one French and one Italian. There are also ten predominantly
Protestant Cantons, seven are German, two French and one is bilingual.
This cross-cut religious division is also the secret behind the
political stability of the Country, since the religious identity was at
first at the center of politics and the ethnic identity.
Switzerland has predominantly a dual federal system, that means each
level of Government (Federal and Cantonal level) acts within its own
sphere and distinct policy domain without the interference from other
levels of government. However there is a shift to cooperative
federalism, where levels of Government share responsibility within
policy areas.
Distribution of Powers:
A new Constitution was adopted in Switzerland by a referendum on April
18, 1999, which was again amended and again adopted by a referendum on
March 12, 2000. The main principle in connection with the sovereignty of
the Cantons is laid down in Art 3 of the Swiss constitution, as it
reads: "The Cantons are sovereign insofar as their sovereignty is not
limited by the Federal Constitution. They exercise all rights, which are
not entrusted to the Confederation".
It must be mentioned here that the Swiss Constitution uses the term
"Confederation" to refer to the Federation, since Switzerland was known
as a Confederation prior to 1848. Art 54 to 125 of the Swiss
Constitution enumerate the Competencies of the Federal Authorities,
leaving the residual powers for the Cantons.
The Center has mainly three categories of jurisdiction:
The fist category covers the domains of:
Foreign Relations:
The Center is not exercising this power alone but with the participation
of Cantons and also the Cantons may conclude treaties with foreign
countries within the scope of their competencies (Art 54 to 56);
- The use of force is Federal matter (Art 58)
- Military legislation, as well as the organization, the instruction and
the equipment of the army is Federal matter (Art 60), and within the
limits of Federal laws, the Cantons are authorized to form Cantonal
troops, appoint and promote officers of such troops;
- Postal and communication service is Federal matter (Art 92);
- Money and Currency are Federal matters (Art 99);
- Weights and Measures are Federal matter (Art 125)
The second category covers the matters, where only the legislation is
Federal matter:
- Field of Civil Law and Civil Procedure (Art 127);
- Field of Criminal Law and Criminal Procedure (Art 123);
- Civil defense (Art 61);
- Professional education (Art 63);
- Statistics, like collection of necessary statistical data on
population and economy (Art 65);
- Nuclear Energy (Art 90);
- Transport and supply of electricity (Art 91);
The third category covers the areas where the Federation only undertakes
activities to support and promote:
- Scientific research (Art 64);
- Sports, culture, film production and etc (Art 68);
The main purpose of studying and analyzing of these three Federal
Systems above, was to extract some lessons to be applied to Iraq in the
future. The following description of the possible federal structure and
competencies of the future federal Iraq are mainly based on the
experience of these above described countries, taking account of
distinct characteristics of Iraq.
Iraq: Iraq is for the time being a highly centralized totalitarian
state, composing of 18 Governorates. The illegitimate president of the
country is playing the central or the exclusive role in "running" the
affairs of the country. Art 81 to 108 of the constitution from 1990
governs officially the office of the president, but in reality the
president himself is the state. He exercises all powers, as suits him
and according to his mood.
As far as the governorates are concerned, so they are being officially
governed by the "Law of Governorates" No. 109 from 1969, as amended
subsequently. According to Paragraph 2 of this law, Iraq is divided into
Governorates or administrative units (Muhafatha), Districts (Qathaa) and
Sub-districts (Nahia), each one with its own legal personality. The
heads of these administrative units are being appointed by the president
of the republic and they represent him. The president is further
eligible to create new administrative units, dissolve them or change
their borders by a decree.
There is no doubt that the current system has proved its insufficiency
and that is why an alternative system has to be found. There is a wide
consensus among the political opposition parties of Iraq, that a federal
solution is the only solution, which could save Iraq from disintegration
and end the decades long internal wars. As far as the Kurds concerned,
so the legitimate and democratically elected Kurdish parliament has
voted October 4, 1992 for the federal option, as a minimal basis for
enjoyment of Kurdish rights.
A future federal Iraq will be, like any other more than 20 federal
systems currently existing in the world, a unique system, since Iraq has
its own characteristics. The proposals on a future federal Iraq
submitted in this chapter are to be seen as no more than a basis for
discussion. Although it is mention worthy that the proposals are based
on experiences of relatively successful federal systems with some
similarities to ethnic and religious composition of Iraq, which give the
proposals a scientific and realistic character.
The proposed structure of federal Iraq
As stated before in this article the aim of creation of any political
organization, of which the states are a form, must be the realization of
justice. In the case of Iraq it is a known fact that Iraq is not
comprising only of Kurds and Arabs, but also of several other ethnic and
religious groups. So if the justice was to be realized in a future
federal Iraq, then all distinct groups must have equal rights. The
realization of this goal is organizationally complicated but not
impossible, if there is a will for peaceful coexistence between all the
groups, who have to live together in Iraq.
>From my point of view, there are organizationally two options to create
a federal Iraq based on justice, both options are based on the Belgian
experience of dual federal structure. That means a federal structure
based on regions and communities. The only difference in the case of
Iraq is, that the word community does not only include ethnic groups but
also religious groups, like Yezides for example, who are ethnically
Kurds but non-Moslems, or Sabeans in the South, who are ethnically Arabs
but also non-Moslems.
The Options are:
Option I:
a) On the regional level
The creation of two federal regions based on ethno-territorial borders:
An Arab region and a Kurdish region, with constitutionally entrenched
borders and vested with all powers within the limits of the
constitution.
b) On the community level
All communities in Iraq, ethnic and religious, must be recognized as
federal entities on personal basis, that means a federal entity with out
territorial borders. Sometimes an ethnic group and a religious group
resemble in one, like the Assyrians for example, who are an ethnic group
and entirely Christians. Also these federal entities must be vested with
all powers necessary for running the affairs of the group without
interference from outside and equal to the regions and within the limits
of the constitution. It is also logical that every region and community
should have its own democratic constitution.
The creation of federal communities is very important, since many of the
ethnic and religious groups live dispersed across the Kurdish and Arabic
regions.
Option II:
a) On the regional level:
The creation of three federal regions: A Kurdish in the North, an Arabic
in the Middle and also another Arabic in the South of the country. This
option was developed by an Arab Iraqi legal expert (see Dr. Munther
Alfadhal, the Federalism and the Future of Iraq).
Indeed this option responds much stronger to the principles of justice,
since the South of the country has its own distinct characteristics
compared with the Arabic middle. This division will also be much more
practical, since it creates a balance between the Kurdish region and the
Arabic regions. In the case of option I, it would have meant that a
Kurdish region with approximately 4 million population has to exist
beside an Arabic region with approximately 18 million population. But
the last option will improve the balance of population. The Southern
region will probably include more than 10 million and the region in the
middle about 8 million. The majority in the South is Shi'a Moslem and
the majorities in the Middle and in the North are Sunni Moslems. So
there will be also here a balance, which is very important in
decision-making-process.
b) On the community level
The same proposals, as states in Option I (b) are to be applied here
also.
Competence
A future federal Iraq will be a centrifugal federal state, that means it
will have developed out of a centralized state which have been
transformed into a federal state, like Belgium for example. This will
also mean that the competencies of regions and communities should be
exclusively enumerated, while leaving the residual powers to the center.
This is indeed a very effective technique to avoid any conflict of
competence with the center. On the other side this mode will also give
the center a bigger possibility to misuse its powers.
Iraq, unlike Belgium, has absolutely no democratic tradition, in
contrary it has a long tradition of totalitarism and a culture of
misusing the powers in the state. Developing a democratic culture in
Iraq, where also the state exercised self-restraint could take decades
if not centuries. That is why we have to reconsider the application of
the Belgian model of distribution of powers and look for another
technique much more suitable to the Iraqi situation. Other options will
be the Swiss or the Canadian model of distribution of competence. In the
Swiss case, as stated before this will mean that the constitution
enumerates exclusively the competence of the center, while leaving the
residual powers to the states.
This, if applied in Iraq will surely reduce the risqué of misusing the
power by the state but may also lead to chaos, since the regions and
communities will be eligible to exercise the residual powers. An in the
Canadian case, where the competencies of the center and of states are
being enumerated in the constitution, may, if applied in Iraq lead to
endless conflicts of competence between the center, communities and
regions, especially if a new matter arises, taking into consideration,
that the communities and regions are not necessarily identical, some of
them are ethnic and others are religious communities and they can not
exercise the same jurisdiction. The Canadian model would be any how
better, compared with the Swiss model.
>From my point of view the best solution for the question of distribution
of powers would be a combination of Swiss and Belgian models. That means
the future Iraqi constitution should enumerate exclusively the
competencies of the center and of the communities, while leaving the
residual powers to the regions.
The distribution of competencies in particular
Since the peoples of Iraq generally have a bad experience with their
state and the state is widely seen as an apparatus of oppression and
even committing genocide, especially in the North and in the South, the
center shall have as less power as possible and these powers shall
include only the matters, which can not be masterminded by regions and
communities alone.
The powers of the center
1. Defense: All matters related to defending the country against outside
threats. The cooperation of regions is also here needed to increase the
effectiveness of defense capabilities of the country, since the regions
are bordering on neighboring countries and the inhabitants of the
regions know their own terrain very well and are accommodated with the
regional environment. This could be organized in a form that the
constitution obliges the regions to maintain a will equipped
border-guard-police force to observe and defend the borders if
necessary.
2. Foreign Relations: Foreign relation include generally all matters
related to official relations between a state and foreign states and
international organizations on all levels. Since these relations could
also include matters, which could affect the interests of regions and
communities, like treaty making power for example, the regions and
communities must be involved in decision-making-process in this field
and within the limits of the constitution. The techniques will be
discussed in detail later, when dealing with legislative power.
3. Money print and coinage.
4. Natural resources.
5. Federal transportation, like highways, airports, railways and a like.
6. Federal energy policy
7. Scientific research: This power will a parallel jurisdiction, since
also the regions and communities may exercise research.
The Powers of communities
The powers of the communities are to be understood as privileges, since
they are being granted additionally to the equal rights the members of
the communities enjoy on the regional and federal level.
a) Religious communities: The competencies of religious communities are
limited by the nature of these communities itself and will mainly
include:
1. Religious education
2. Management and maintenance of religious institutions and sites
3. Family affairs, including family courts
4. External and external relations of religious nature
5. Social affairs, like care for elderly in special institutions
reserved and managed for and by this group.
b)Ethnic communities:
1. Education: Includes all levels of education
2. Promotion of culture and language
3. External and internal relations, within the limits of the
constitution
4. Economic development of the community
5. Social affairs, like health care, welfare, sports and the like.
And in cases where a community combines in itself both characteristics,
ethnic and religious, like Assyrians for example, the respective
community shall enjoy both categories of competencies, the ones for a
religious community and the ones for an ethnic community.
The three federal regions, A Kurdish and two Arabic will exercise the
residual powers in cooperation and in coordination with the center and
the communities, when necessary.
In connection with the Kurds living permanently in Arab regions and the
Arabs living permanently in the Kurdish region and how should they
exercise their rights as ethnic communities, so there are two options to
solve this problem:
1. The Arabs in the Kurdish region and the Kurds in Arabic regions
should be recognized as ethnic communities,
2. The Kurdish region and the two Arabic regions extend their
jurisdiction to their own ethnic groups living in either regions. But
since, according to our model, there should be two Arab regions, the
conflict of competence on who should be in charge for Ethnic Arabs
living in the Kurdish region must be settled between these two regions
or by the constitution.
Next chapter will deal with the legislative power.
-----------------------
-- andreas
-- signature .