Cole Oil

When you can't be sensible yourself, at least it is nice to know somebody is better at it.

[T]here is another corner of the petroleum bill that is often misreported. It has to do with the weakness of the central government and the power of the provincial confederacies or "Regions." An informed observer of Iraq affairs with expertise in finance and law allowed me to reprint the following email message though he wants to remain anonymous: The reporting in the press-media about the proposed Petroleum Law omits a material fact. The proposed Law does not have a word that relates to the "fair distribution of revenues." That phrase relates to the dispersion of gasoline stations, not to the distribution of revenues. The gasoline stations will be covered by another petroleum law not yet considered by the Council of Ministers. What is really going on relates to the Iraqi Constitution. The context is Article (113): "The federal system in the republic of Iraq is made up of the capital, regions, decentralized provinces, and local administrations." The Iraqi Constitution has a unique feature distinguishing it from the US federal structure. The provinces are the basic units of governance. But the Constitution treats regions as more important in the federal structure. There are extensive provisions with respect to the permitted regional governing institutions. There are only two relating to provinces.

Where on earth did those filling stations come from? Some classified discussion at Gulf2000 or thereabouts?

Anyway, of course the controversy about the petroleum bill is mainly about Khalílzád Pasha's "constitutiom," unless you pontificate from Ann Arbor are take no interest in mere structures and technical legalisms. ("The Iraqi constitution allows 50 deputies to call a vote of no confidence; but the Iraqi government is so dysfunctional it is not clear anyone would bother to do so," declares Himself, in another communiqué of today's date.)

Dr. Anon is wiser than that, but she cannot be a real structure person either, I do not think. A constitutional lawyer or political scientist would discuss the bizarrenesses of Zal's thing more generally. Dr. Anon discusses it only insofar as it is connected with the oil. She cannot be a historian either, to find it surprising that neo-Iraqi "federalism" works strictly top-down, and has nothing worth mentioning to do with Philadelphia in 1787, or consider that reversal the only deviation that distinguishes it from Mr. Madison's handiwork.

That the Khalílzád Konstitution said more about regions than about governatess probably only indicates that the native collaborationists who help toss it together had only a vague idea of what a proper constitution should be like, and their extremist GOP colleagues not much more. Under such invasion-based circumstances, it is not remarkable that space in the text should be allotted in proportion to what is important because it is controversial rather than important because it is fundamental.

The proposed Petroleum Law has provisions which deal with the ownership rights - including rights to award oil field development contracts - granted by the Constitution to "Regional Authorities." Article 110 of the Constitution expressly gives the power, in the case of the oil industry, to the federal government and "the producing regions and provinces," but the provinces are not included as such; they are disempowered. The way the Constitution is written permits, even requires, the substitution of the regional governments for the provincial governments.

Were it not for the general Green Zone dysfunctionality, there could be some jolly litihgation over Dr. Anon's loose construction of Section IV, Article CX. Let us have a look at the horse's mouth :

Article 110: The following competencies shall be shared between the federal authorities and regional authorities: First: To administer customs in coordination with the governments of the regions and governorates that are not organized in a region. This will be organized by law. Second: To regulate the main sources of electric energy and its distribution. Third: To formulate the environmental policy to ensure the protection of the environment from pollution and to preserve its cleanness in cooperation with the regions and governorates that are not organized in a region. Fourth: To formulate the development and general planning policies. Fifth: To formulate the 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 organize the main internal water sources policy in a way that guarantees fair distribution. This will be organized by law.

Can you find any fluid mentioned there besides water? Could Antonin Scalia find any? Is one to understand that because petroleum is, presumably, the "main sources of electric energy" in neo-Iraq, therefore federal authorities and regional authorities must possess a shared competency over it as per Section IV, Article CX, Clause 2? Here we have a neocolony that obtains over ninety percent of its revenues from fossil fuel extraction, and this is how the whole matter is "constitutionally" disposed of? Well, no, in fact the matter has already been disposed of by the time one arrives at Article CX:

Article 108: Oil and gas are the ownership of all the people of Iraq in all the regions and governorates. Article 109: First: The federal government with the producing governorates and regional governments shall undertake the management of oil and gas extracted from current fields provided that it distributes oil and gas revenues in a fair manner in proportion to the population distribution in all parts of the country with a set allotment for a set time for the damaged regions that were unjustly deprived by the former regime and the regions that were damaged later on, and in a way that assures balanced development in different areas of the country, and this will be regulated by law. Second: The federal government with the producing regional and governorate governments shall together formulate the necessary strategic policies to develop the oil and gas wealth in a way that achieves the highest benefit to the Iraqi people using the most advanced techniques of the market principles and encourages investment. (Antiquities and antiquity sites, traditional constructions, manuscripts and coins are considered part of the national wealth which are the responsibility of the federal authorities. They will be administered in cooperation with the regions and governorates, and this will be regulated by law.)

That's more like it! More like the chatty brand of "constitutionalism" that characterized the efforts of Feldman Effendi in neo-Afghanistan as well as Khalílzád Pasha at New Baghdad. "O Zayd, surely oil and gas are not ALL our national wealth?" "By Zeus, thou art right, O Hasan! Let's toss in cuneiform tablets and so forth as well at the end." And so they did.

Meanwhile Dr. Anon may have been puzzled by "governorate(s)" for "governate(s)" for muháfaza(t) to refer to what she hemself prefers to call a province. The chatters mention that sort of thing thirty-seven (37) times. To be sure, "region" and "regions" and "regional" ’iqlím, ’aqálím, ’iqlímí appear seventy-four (74) times, so her basic perception is not badly mistaken. Nevertheless, "the provinces are not included as such; they are disempowered" is a flat-out boo-boo, and ""The way the Constitution is written permits, even requires, the substitution of the regional governments for the provincial governments" is at best a non sequitur.

Onwards!

The "Regional Authorities" have the power and jurisdiction over the production segment of the oil industry. Basra should "own" the Rumayla Oil Field, but apparently does not. In the cases of many other things, the provinces will also be disenfranchised. The power and jurisdiction is established by the reservation article, just as all powers not expressly granted to the US federal government are reserved to the states. But the power is reserved not to the provinces, but to the regions: "Article (111): All that is not written in the exclusive powers of the federal authorities is in the authority of the regions. In other powers shared between the federal government and the regions, the priority will be given to the region's law in case of dispute." I don't know where this came from or whether the US Government had any part in devising it. Much is explained by taking this unique feature into account. It is not clear to me that it has been thought through by the US Government or the Iraqis. Note also the use of the word "granted." The US had states. They got together and formed a federal government and gave it powers. That is not what has happened in Iraq.

Well, at least this time the number is right. I presume Section IV, Article CXI is itself Dr. Anon's "reservation clause," even though the casual chatters are translated as having offered us "given" instead of "granted," a word which admittedly resounds with a more Madisonian dignity.

As to any future pseudoconstitutional exegesis, however, the key word has to be "priority." Let's see, ... takúnu l-’awwaliyya ... li-qánún al-’aqálím wa-l-muháfazát ..., "... the law of the regions and [of] the governates shall have firstness ...." Not "supremacy," mark you, the "unitary regime" (al-hukúmat al-ittihádiyya) shall possess only "firstness" whenever it shares authority with regions and governates. Secondness is not excluded altogether. It is very typical of the Khalílzád-Feldman school of legal chatter that one has no clue under what circumstances secondness is admissible, let alone what would happen if secondness happened to be in order, but the region said X and one of its governates said not-X.

A brief digression in favor of James Madison and the Gang of '87 is appropriate. They would never have signed their names to off-hand invasion-based tripe and baloney like this that does not even attempt to indicate how the machinery of government is supposed to work. In a different direction, they would never have admitted details like ""antiquities and antiquity sites, traditional constructions, manuscripts and coins are considered part of the national wealth." Agriculture was as important to them as mineral extraction is to the Green Zone collaborationists, but they did not say a word specifically about it. But onwards!

When Muqtada al-Sadr and others speak of a "unitary government" and a "united country," they really mean it. The federal government is going to pass many laws which, under a federal system, should be enacted by the provinces. The problem the Iraqis have is that the Constitutional default or reserved power system calls for the regions to enact the laws, but, outside of the Kurdistan Regional Government's territory, there are no regional governments in existence to enact the laws. This unique feature might or might not cause serious problems in the future. The Iraqis are probably developing in sophistication daily. Notwithstanding the elemental struggle going on in Basra, I have seen indications that there are at least a few sophisticated people who appear to have received outside advice in the trade unions and at least one gentleman in South Oil Company. They have a decision to make. They could form their own three-province regional government or they could go it alone. If they decide upon the latter, they will be carving new ground and will have trouble. But they also will have a lot of de facto power.

As we just saw, it is not only the Rev. al-Sadr who speaks about "unitary government," but the Khalílzád Konstitution itself. Dr. Anon seems to be playing at Humpty-Dumpty a little here, informing us free of charge that what has been imposed on the conquered natives by the militant Republicans is not genuine federalism, but some sort of shoddy imitation product. No point in arguing about words, though -- the main question is whether she describes the product accurately. Since she erred about Section IV, Article CX, Clauses 1 and 2, I fear her deductions are mistaken as well. Maybe only three governates have a regional affiliation at the moment, but the other fifteen undoubtedly exist aas governates and are plainly said in the "constitution" to possess firstness of law vis-à-vis New Baghdad as regards oil and gas and mediaeval MSS. They will accordingly be better off not to regionalize themselves, I should think. Why invent a third part into future quarrels they may have with the unitarian régime? If they can't be sure a neo-region would always agree with themselves, why invent it? Even if the rulers of the governates could be sure, how would they be better off, de-facto-powerwise? or de-jure-powerwise either? There may, for all I know, be reasons why they would be better off lurking in other clasues of the Khalílzád Konstituton, but I entirely fail to discern any in the bits of it that Dr. Anon alludes to. Onwards!

Abdul Aziz al-Hakim also is breaking new ground. Does he really intend that there will be a replica of the Kurdistan Regional Government (KRG), with a constitution, a legislature, a council of ministers, a court system and other institutions nearly all of which will be new and unprecedented? If he does not, or if the proposal is defeated in the Council of Representatives - which is a real possibility, see next paragraph - what is going to happen is that the powers of the federal government will be unlimited as a practical matter in relation to the provinces. When the Sunni leaderships look at their options, a regional government must seem to them conceptually and existentially to be a non-starter. What that means is that, with respect to voting or fighting, there are only two alternatives: live with the new system or fight. It would take a significant effort to lay out for them what Mr. al-Hakim might be, but is not necessarily, considering. That is why I have been stressing the point, because preparation should have begun yesterday. One trouble might be that the Embassy has no one who understands the problem in specific detail. They might simply be applying the embedded US model without focusing on the fact of this unique feature in the Iraqi Constitution. I am not clear that the PRTs are being appropriately staffed and have the right mission. Their first and main task after they assure that food and medical assistance is available, is or should be to get the provinces, that is the Regions, started drafting a lot of laws. At the moment, with the exception of the Investment Law, the only laws of Iraq are in decrees of the former regime or orders issued by the Coalition Provisional Authority.

"When the Sunni leaderships look at their options, a regional government must seem to them conceptually and existentially to be a non-starter" -- golly! Has Dr. Anon been paying any attention to native politics at all? Hasn't she noticed that perhaps the sole pont upon which all the dozens of TwentyPercenter factions and subfactions and subfactionettes agree is that "regional government" was never anything but a non-starter, and further that it never will be anything else, if they can impose themselves? It took Arab Sunnidom about half a second to work out the implications of the Rev. al-Hakím and SCIRI for themselves. One might as well devote "a significant effort" to teaching Dr. Rush Limbaugh the dreadful ickiness of the Democrat Party. Golly!

Would it help bring peace and freedom to the Crawfordites' Peaceful Freedumbia if the eighteen (18) governates and the one (1) region started scribbling lots and lots of local laws? In Free Kurdistan, I daresay they are doing it already, but that legislative vigor is not unconnected with the fact that Free Kurdistan is only nominally part of "Iraq" at all. Dr. Anon must be talking about the fifteen (15) regionless governates, which just coincidentally happen to be Arab ethnographically. The idea would appear to be nonsense if viewed in our fixer-upper's own framework: did she not just inform us that "the provinces are not included as such; they are disempowered"? No, I take it back, her proposal is nonsense taken de jure, but one could take it de facto instead, in which case she recommends that fifteen governates go into rebellion against New Baghdad immediately. If the governates won the ensuing war, then of course their laws would be legal, and the Green Zone pols' laws would be nothing at all.

If Dr. Anon had thought things through carefully, she would have presented this brainstorm as a nifty scheme to partion neo-Iraq into sixteen pieces rathen the paltry two or three that would satisfy most schizophiles. Considered as half-baked, though, her notion is probably vaguely that if the sixteen agencies start issuing lots of wannabe laws, many of our neo-Iraqi subjects will start obeying them -- (why?) -- and then gradually al-Diyála and Dhí Qár in our own time will come to resemble Connecticut and South Carolina in the 1780's. After that, the road ahead is clear enough, they have only to emulate the Philadelphia miracle!

The Sadrists, plus the IAF and Mutlak's Dialogue have 87 votes. (Those two, in addition to their allotted 30, that the Sadrists cleverly won are going to come in handy at some point.) They would need 51 more. Allawi would add 25, leaving a deficiency of 26. Maliki's Da'awa has 30; the UIA independents have 23; Fadhila 15. If the Council of Representatives were to reject the proposed Petroleum Law, that would be that, short of another revolution. The agreement struck between Mr. al-Hakim and Adnan al-Dulaimi to postpone the effective date of the Regions Law until mid-2008 means that the matter might not come up again until after the Regions Law becomes effective, and Provincial elections are held after the enactment of an Elections Law. During that time, staffing and intra-government relationships will be firmly entrenching the new regime in Baghdad. The power of the federal government will be absolute. It should be noted that no reference is being made to the third source of law, the Sharia.

(Prof. Cole may despise structures, but he plays a similar game with numbers of quasideputies over at the link already cited.)

Here again Dr. Anon's policy advice -- to reject the petroleum bill -- can be separated from her inadequate reasons and her implausible scenarios. I'm for rejection myself, but on the orthodox Sadrist grounds that nothing should be done under the yoke of alien and extremist Republicans that cannot be undone with ease later on. Until then, everything is at best only temporary and provisional, and at worst, flatly illegitimate.

"Firmly entrenching the new regime" is an ambiguous expression from this standpoint. I believe M. al-Sadr has agreed to entrenchment in the sense that when Iraq becomes a nation once again, the neorégime of poor M. al-Málikí, or some coupless successor to it, will be the first legitimate government of "the Second Iraqi Republic," to speak on the model of French politics. At that point, the only people with any real right to concern themselves will definitively decide such questions as whether or not "the power of the federal government [shall] be absolute," and exactly what Islamic Divine Law shall have to do with day-to-day law and administration.

As to the writer's scenarios, I am not at all clear what would be what, "short of another revolution." Does she mean that nothing resembling the present extraction bill will ever stand a chance at New Baghdad in the future? Maybe in fact it would not, but I do not see from what she writes why it should not. She warned Prof. Cole at the outset, however, that she was addressing herself to only "another corner" of the controversy. Deciding judiciously whether such a scheme might be implemented at a later date, after Iraq has become a nation once again, probably requires that one examine the other three corners as well. In the present bill, the "Iraqi" Fedguv and the governates and the region(s) are not the only players involved, the whole cast is to include, lemme see,

First: To assist the Council of Ministers in creating Petroleum policies and related plans, arranged by the ministry in coordination with the producing provinces and regions, and to put important legislations for exploration and production based on ARTICLE 9 of this law the ministers council creates an entity to be named “the Federal Oil and Gas Council”. The Prime Minister or his/her representative shall be the president of this council, and the council should include: 1- Federal Government’s Ministers from the ministries of oil, treasury, planning, and cooperative development. 2- The director of the Iraqi central bank 3- A regional government minister representing each region. 4- A representative from each producing province not included in a region 5- Executive managers of from important related petroleum companies including the national Iraqi oil company and the oil marketing company 6- Three or less experts specialized in petroleum, finance, and economy to be hired for a period not exceeding 5 years based on a resolution from the council of ministers. The Council shall represent all the different basic components of the Iraqi people.

(That's from Article V, page 8 of the translation.)