Territories remain disputed, Article 140 can be implemented: Iraqi federal court

ERBIL, Kurdistan Region — An Iraqi federal court in Baghdad argued on Tuesday that Article 140 of the Constitution that would settle the status of disputed areas like Kirkuk “remains mandatory, and all of it needs to be implemented" despite its delayed implementation. 

“The Supreme Federal Court found that Article 140 of the Constitution of the Republic of Iraq of the year 2005 delegated to the Executive Authority undertaking the necessary steps to complete the implementation of the necessities of Article 58 of administration of the state in the Transitional Period [TAL] in all of its sections, which is still in effect based on the rulings of Article 143 of the Constitution,” read the court's statement. 

The TAL refers to May 2005 to May 2006 during the period of the Iraqi Interim Government, but before the current permanent government.

Article 58 of the Transitional Period stipulated that the Iraqi government had to address the issue of demographic change, administrative borders, and changes of ethnicity of residents of Kirkuk and other areas that have come to be known as the “disputed territories.” Property disputes were also to be resolved.

Article 143 of the Constitution stipulates the TAL law will all be abolished except for Article 58 and 53, the latter recognizing the Kurdistan Regional Government (KRG) as an authority over the lands it governed on March 19, 2003 — the date of the US-led invasion and beginning of the end of the previous regime.

In the Constitution, Article 140 was specially written to address the issue of lands that are disputed between the KRG in Erbil and the federal government in Baghdad. The areas are in the provinces of Diyala, Kirkuk, Nineveh, and Saladin.

A number of steps were designed to resolve the issue of these territories. Normalization had to take place for people like Arabs from elsewhere who had been settled in the area under Saddam Hussein to be compensated and then returned in their original homes. Kurds and Turkmen who were expelled were to be compensated, have lands and properties returned.

The Constitution stipulated that a census and referendum be held “by a date not to exceed the 31st of December 2007” in which the people of the areas “determine the will of their citizens.” 

However, this step was not implemented. 

“The Supreme Federal Court found that the steps were not completed, and sections of it have not been undertaken. The goal of placing and legislating Article 140 of the constitution remains mandatory, and all of it needs to be implemented,” the court said on Tuesday

“This [delay in implementation] does not change the essence of it nor the accomplishment of its goal,” added the court. 

It concluded the dates were put in place for “organizational matters and to have the relevant authorities implement it.”

“Based on this, the Supreme Federal Court decided that Article 140 of the Constitution of the Republic of Iraq remains in effect for now and until its steps are implemented and the goal for its legislating has been accomplished,” the court added.

Article 140 has been contentious since the beginning of the “new Iraq” with some Shiite MPs during the last parliament arguing to abolish the article. 

Despite the article attempting to rectify many of the Arabization policies of previous governments, Kirkuk since it was taken by Iraqi federal forces from the Peshmerga in October 2017 and has witnessed further criticized Arabization policies under Baghdad-appointed, Sunni Arab Governor Rakan al-Jabouri. 

In last year’s parliamentary election, the Patriotic Union of Kurdistan (PUK) won six seats in Kirkuk province, Turkmen and Arab parties three each, and the Christians took their minority quota seat. The Kurdistan Democratic Party (KDP), the largest party in the Kurdistan Region, refused to run in what they called an “occupied” Kirkuk.

The Kurdistan Region’s authorities have never relented in their demand for Article 140 to be implemented. Kirkuk has been called the “Heart” or “Jerusalem” of Kurdistan and it holds significance within the Kurdish political discourse in addition to massive petroleum reserves.