Self-originating sovereignty and constitutional supremacy

Research Question and Hypothesis

The central question of this article is as follows: if the Sovereignty of the Kurdish Nation does not derive from the permission, grant, recognition, or consent of any foreign State, international organisation, or pre-existing treaty, what role does the Constitution of the Republic of Kurdistan play in embodying, organising, exercising, and protecting that Sovereignty?

The hypothesis advanced in this article is that the Constitution does not create the ontological source of Sovereignty. Under Article 3, the Sovereignty of the Kurdish Nation arises from the historical shared consciousness and essential will of the Nation itself. The Constitution nevertheless gives that Sovereignty legal and institutional form, defines the limits governing the exercise of Authority, and establishes mechanisms to protect it against deviation, distortion, and institutional appropriation.

Two distinct levels must therefore be recognised. At the ontological level, the Nation is the holder of Sovereignty. At the legal and institutional level, the Constitution is the sole legitimate framework through which that Sovereignty may be exercised. The Constitution is consequently neither the grantor of Sovereignty nor merely a symbolic instrument. It is the legal articulation of self-originating Sovereignty and the constitutional shield of its legitimate exercise.

Method of Interpretation and Source Basis

This article distinguishes among three analytical levels. The first is the direct text of the Constitution: the principles expressly established by Articles 3, 16, 28, 123, 128, 129, and 139. The second is constitutional interpretation: the conclusions reasonably derived from the coherence of the text, the Spirit of the Constitution, and the relationship among its provisions. The third is institutional proposal: mechanisms that may be introduced to secure the more effective implementation of constitutional principles without being presented as express commands already contained in the Constitution.

This distinction is essential. Constitutional analysis must not present a scholar’s interpretation or an institutional recommendation as though it were a direct constitutional provision. At the same time, the Constitution must not be reduced to a narrow and exclusively literal reading. Its provisions must be understood within the general constitutional structure, the founding intent, and the semantic unity of the text.

Self-Originating Sovereignty and the Function of the Constitution

Article 3 establishes the ontological foundation of the constitutional order. Under that Article, the Sovereignty of the Kurdish Nation arises from the Nation’s historical shared consciousness and essential will. Its fundamental legitimacy is therefore not derived from international recognition, a treaty, an agreement, the consent of a foreign power, or any prior referendum.

This principle does not mean that the Constitution has no role in establishing the sovereign constitutional order. A distinction must be drawn between the “source of Sovereignty” and the “legal constitution of Sovereignty.” The Nation is the source; the Constitution translates that Sovereignty into a legal order in which Authorities, institutions, Rights, duties, and mechanisms of constitutional review are defined.

In this capacity, the Constitution performs three principal functions. First, it transforms National Sovereignty from a state of historical will and shared consciousness into a binding legal expression. Second, it establishes the means through which Authority may be exercised and determines who may decide on behalf of the Republic, for what period, through which procedures, and within what limits. Third, it protects Sovereignty against any institution or temporary majority that might seek to present itself as the permanent owner of Authority.

An amendment or alteration of the constitutional text cannot extinguish the ontological source of Sovereignty. It may, however, weaken the legal structure through which Sovereignty is protected. For this reason, Article 128 safeguards the provisions relating to the definition of the Republic, the National Flag, the self-originating nature of Sovereignty, and the republican form of the State as immutable constitutional principles.

The Legitimacy of Authority and the Limits of Institutional Mandate

Article 16 identifies the source of legitimacy of elected Authorities. Under that Article, Authorities derive their legitimacy from the Constitution, lawful and constitutional procedures, general elections, and the formal establishment of State institutions. Such legitimacy is not permanent. It is conferred for a defined term, within a limited mandate, and subject to continued adherence to the immutable principles of the constitutional order.

This reveals the distinction between the “original holder of Sovereignty” and the “temporary exerciser of Authority.” From the perspective of constitutional interpretation, the Nation is the holder of Sovereignty. The President of the Republic, the National Assembly, the Council of Sages, the Cabinet, and all other institutions receive only a constitutional mandate to exercise a defined portion of Authority. That mandate neither transfers ownership of Sovereignty nor grants unlimited power.

An electoral majority may determine the composition of the Executive Authority or the Legislative Authority, but it cannot transfer ownership of Sovereignty or abolish the immutable principles of the Republic. A majority acquires the right to govern within the Constitution; it does not acquire the right to abolish the constitutional framework from which its own legitimacy is derived.

No Authority may therefore depart from the Constitution in the name of the “will of the Nation.” Within a constitutional order, the will of the Nation becomes legally binding only through constitutional and lawful mechanisms. Invoking the Nation in order to circumvent the Constitution would, in substance, transform National Sovereignty into the rule of an individual, a group, or an institution.

Promulgation of the Constitution and the Constituent Act

Article 123 defines the promulgation of the Constitution as a Constituent Act of Sovereignty. This formulation requires careful interpretation because it contains two distinct but complementary dimensions.

At the ontological level, the act of promulgation does not create Sovereignty out of non-existence. Article 123 itself treats promulgation as the recognition of a pre-existing reality: the absolute and non-negotiable will of the Kurdish Nation to exercise Sovereignty over its Historical Territory. In this sense, the act is declaratory because it brings an already existing reality into legal visibility.

At the legal and institutional level, the same act is constituent. From the moment of promulgation, the historical and previously unarticulated will of the Nation is transformed into an express and binding legal order. The Constitution becomes the Supreme Law; institutions acquire the foundation of their legitimacy; Authorities are subjected to defined limits; and the relationship between the Citizen and the Republic is brought within a constitutional framework.

There is therefore no contradiction between Article 3 and Article 123. Article 3 identifies the ontological source of Sovereignty. Article 123 identifies the act through which the legal and institutional order of that Sovereignty is constituted. The first answers the question, “From where does Sovereignty arise?” The second answers the question, “How does Sovereignty become a legal and institutional order?”

International Recognition and the Constitutional Existence of Kurdistan

Within the logic and Spirit of the Constitution, international recognition is not a condition for the existence of the Sovereignty of the Kurdish Nation. Article 123 does not make the exercise of the Republic’s international Rights dependent upon recognition by any external party. International recognition may facilitate diplomatic relations, the conclusion of treaties, membership in international organisations, and the more effective exercise of external Rights. It does not, however, constitute the source of the Kurdish Nation’s Right to its own State and National Territory.

A distinction must accordingly be maintained between “recognition” and “creation.” International recognition is the external acknowledgement of a status that the Constitution understands to be self-originating. It is not an act that creates the Sovereignty of Kurdistan out of non-existence. Any interpretation that reduces National Sovereignty to an externally granted permission would be incompatible with Articles 3 and 123.

National Sovereignty must likewise not be reduced to autonomy, internal administration, or Authority delegated by another State. Under the constitutional structure, Sovereignty means the Nation’s ownership of its own decision-making power. Autonomy, by contrast, may consist of limited and delegated Authority exercised within the constitutional order of another State. Conflating these concepts is not merely a linguistic error; it is a substantive distortion of constitutional meaning.

Constitutional Supremacy and the Immutable Clauses

Constitutional Supremacy has two interrelated dimensions. The first is formal. Every law, decision, order, or institutional act must be adopted by a competent Authority, through the prescribed procedures, and within the limits of constitutionally conferred power. An act lacking a lawful basis of Authority remains constitutionally defective even when it pursues a desirable objective.

The second dimension is substantive. A law or decision must not merely comply with formal procedures; its content, purpose, and actual effects must also conform to the essence of the Constitution. Article 129 declares any interpretation that weakens National Sovereignty, the Unity of the Country, or National Security to be unconstitutional and null from the outset.

Article 128 provides an additional constitutional shield for the identity of the Republic. The constitutional amendment mechanism may not alter the existential essence of the Republic or the principles constituting the basis of the State’s existence. The power of amendment is therefore not an unlimited Constituent Authority. It is a limited constitutional power that may not abolish the very source from which its legitimacy is derived.

Consequently, the formal adoption of a law by the required majority does not, by itself, guarantee the constitutionality of its substance. A majority cannot use a correct procedure to produce an unconstitutional result. Both procedure and substance must conform to the Constitution.

Constitutional Interpretation and Final Interpretive Authority

Article 129 recognises the Supreme Court as the sole Authority possessing final decision-making power in the interpretation of the provisions of the Constitution. This does not mean that the Supreme Court owns the Constitution or may alter its substance according to judicial preference. On the contrary, its interpretive Authority is limited by the founding intent, the First Gateway, the immutable principles, and the semantic unity of the constitutional text.

Article 28 confers upon the Supreme Court the power of Constitutional Review over laws, decisions, orders, and official acts of the Authorities. Article 129 determines the interpretive standards and constitutional orientation governing the exercise of that power. The first provision confers the power of review; the second defines the limits and direction of its exercise.

In conducting Constitutional Review, the Supreme Court must not ask only whether a law was adopted by the required number of votes. It must also determine whether the adopting institution possessed constitutional Authority, whether the prescribed procedures were followed, whether Rights and Fundamental Freedoms were protected, whether immutable principles were weakened, and whether the real effects of the law conform to the Spirit of the Constitution.

Semantic Unity and Constitutional Security

Article 139 establishes the Fundamental Constitutional Definitions as an immutable interpretive framework and a Supreme Source for State institutions. Its purpose is not merely to standardise vocabulary. It is to prevent foundational constitutional concepts from being redefined according to temporary interests, changes in Authority, or external pressure.

If each institution were permitted to redefine “National Sovereignty,” “Nation,” “State,” “Territory,” “Citizen,” or “National Security” according to its immediate preferences, the constitutional text might remain formally unchanged while its legal substance was hollowed out from within. A transformation of meaning could therefore produce the same result as a formal amendment without passing through the constitutional amendment procedure.

From the perspective of constitutional interpretation, Semantic Unity is part of Constitutional Security. A constitutional order is preserved not only by protecting its sentences but also by preserving its concepts and the semantic relationships among them. Constitutional terminology must retain the same substantive core in legislation, judicial adjudication, executive action, and institutional discourse.

For example, “National Sovereignty” cannot be interpreted as “autonomy” or as Authority granted by an external power. Nor may “National Territory” be reduced to a temporary administrative boundary. Such interpretations do not merely substitute one word for another; they distort the constitutional essence of the concepts themselves.

Institutional Consequences and the Standard of Constitutional Review

The relevant constitutional provisions support the formulation of a five-stage standard for assessing the constitutionality of laws and acts of Authority:

1. The Authority Test: Does the institution derive the power to perform the act from the Constitution or from a constitutionally valid law?

2. The Procedural Test: Were all prescribed processes, conditions, time limits, voting requirements, Transparency obligations, and oversight mechanisms observed?

3. The Substantive Test: Does the law or decision protect Rights, National Sovereignty, the Unity of the Country, National Security, and the immutable principles?

4. The Semantic Test: Are the concepts and terms used consistent with the Constitutional Definitions and the Semantic Unity of the text?

5. The Effects Test: Do the real consequences of the act conform to the purpose and Spirit of the Constitution, or do they indirectly weaken a constitutional principle?

A negative answer to any one of these questions places the act under a serious presumption of unconstitutionality. The Supreme Court must consider all these dimensions in Constitutional Review rather than limiting its examination to the formal procedure through which a law was adopted.

At the legislative level, a “Statement of Constitutional Compatibility” may be introduced as a preventive mechanism for every proposed law. Such a statement could identify the source of legislative competence, assess the proposal’s effects upon Rights, explain its relationship to the immutable principles, verify terminological consistency, and evaluate its institutional consequences.

Requiring such a statement would constitute an institutional proposal inferred from the Spirit of Articles 28, 129, and 139. It is not an express constitutional command already prescribed under that title. Its purpose would be to ensure that Constitutional Review does not begin only after a constitutional dispute has arisen, but instead operates preventively from the stage at which legislation is drafted.

Conclusion

The constitutional structure of the Republic of Kurdistan organises the relationship among the Nation, Sovereignty, the Constitution, and State institutions according to a defined hierarchy. Ontologically, the Kurdish Nation is the source and holder of Sovereignty. Legally, the Constitution is the constituent expression and Supreme Source governing the exercise of Authority. Institutionally, the Authorities are holders of temporary, limited, and accountable mandates.

Article 3 identifies the self-originating source of Sovereignty. Article 123 transforms that Sovereignty into a legal and institutional order. Article 16 limits the legitimacy of elected Authorities. Article 28 establishes the mechanism of Constitutional Review. Article 128 protects the immutable essence of the Republic. Article 129 determines the standards of constitutional interpretation and final decision-making Authority. Article 139 safeguards the Semantic Unity of the constitutional order.

Constitutional Supremacy is therefore not an obstacle to the legitimate power of the State. It is the condition under which that power is created, justified, and sustained. Power without constitutional limits may become the will of an individual, a majority, or a group. Power bound by the Founding Covenant can protect the Sovereignty of the Kurdish Nation, guarantee the Rights of Citizens, and govern the Republic of Kurdistan in a legitimate, unified, and enduring manner.