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Identifier
Created
Classification
Origin
05BAGHDAD3088
2005-07-26 09:38:00
CONFIDENTIAL
Embassy Baghdad
Cable title:  

TNA PASSES CONSTITUTION REFERENDUM LAW BUT SOME

Tags:   PREL  PGOV  KDEM  IZ 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
						C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 003088 

SIPDIS

E.O. 12958: DECL: 07/26/2025
TAGS: PREL PGOV KDEM IZ
SUBJECT: TNA PASSES CONSTITUTION REFERENDUM LAW BUT SOME
SCRAMBLING TO FIX VAGUE LANGUAGE

REF: BAGHDAD 3017

Classified By: Political Counselor Robert Ford.
Reasons 1.4(b) and (d)

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 003088

SIPDIS

E.O. 12958: DECL: 07/26/2025
TAGS: PREL PGOV KDEM IZ
SUBJECT: TNA PASSES CONSTITUTION REFERENDUM LAW BUT SOME
SCRAMBLING TO FIX VAGUE LANGUAGE

REF: BAGHDAD 3017

Classified By: Political Counselor Robert Ford.
Reasons 1.4(b) and (d)


1. (C) Summary. The TNA passed the law governing the
procedures for the October 2005 constitutional
referendum on July 24 but failed to clarify whether
the use of the Arabic term "nakhibeen" means "those
who vote" or "those on the voter list." The manner in
which the terms was let vague gives rise to suspicions
that Shia politicians were trying an end run around a
provision in the TAL that gives minorities like Kurds
and Sunni Arabs more leverage over the constitution.
TNA Legal Committee Chairman Mushen Saadoon assured
PolOff July 25 that the TNA did not want to change the
Arabic language found in Article 61(C) of the TAL.
The Independent Electoral Commission of Iraq (IECI)
reacted negatively and asked UNAMI to intervene on
IECI's behalf. Embassy will encourage IECI to
interpret "nakhibeen" the way IECI prefers and the way
it was intended in the TAL, as "those who vote." We
also learned July 25 that the Presidency Council will
issue a clarification that the vague language is to be
interpreted as "those who vote" - thus re-establishing
beyond question the balance in the TAL. In our own
contacts, we will point out to Iraqi politicos that
any possible, misguided attempts to strip away the
three-governorate "veto" clause would be very
unhelpful. A translation of the law follows. End
Summary.

TNA PASSES WITH AMBIGUITIES
--------------


2. (C) The TNA passed the draft referendum law on
July 24 but failed to clarify whether the use of the
Arabic term "nakhibeen" means "those who vote" or
"those on the voter list." If the Presidency Council
does not reject the draft within 15 days, it will
become law. Article 4 of the draft referendum law
copies Article 61(C) of the TAL in Arabic in its
entirety, including use of the term "nakhibeen."
Thus, the possible ambiguity of the Arabic term
"nakhibeen," passed into the new referendum law. In
the English version, Article 61(C) states, "The
general referendum will be successful and the draft

constitution ratified if a majority of the voters in
Iraq approve and if two-thirds of the voters in three
or more governorates do not reject it." The TAL
intends that "voters," or "nakhibeen", mean "those who
vote," rather than "those on the voter list," or
"those eligible to vote."


3. (C) During the 17 July TNA session, Shia Coalition
parliamentarians Saad Qindell and Asamaa Al-Musawi
argued that the correct translation of "nakibeen" is
"constituents" or "those on the voter list." Without
explanation, Da'wa parliamentarian Nuri Kamel added
that the interpretation "those who vote" could be used
by people "who want to stop the constitution." The
discussion ended without the resolution of this issue,
and TNA Speaker Hassani closed the debate by stating
that the matter would be clarified with the UN.
PolOff July 18 cautioned TNA Legal Committee Chairman
Mushen Saadoon that the TAL intended the term
"voters," as defined in Article 61(C), only to include
"those who vote." A different interpretation, i.e.
defining "voters" as "those eligible to vote," would
have the negative effect of stripping away the three-
governorate "veto" provision specifically inserted in
the TAL to protect minority groups. Saadoon at this
July 18 meeting agreed with this position and assured
PolOff that the final draft subject to vote by the TNA
would clarify that "voters" meant "those who vote."


4. (C) After the July 24 vote, Saadoon told PolOff
that the TNA did not want to change the Arabic
language found in Article 61(C). He said that he would
cooperate with the Independent Electoral Commission of
Iraq (IECI) to ensure that the term "nahkibeen" is
properly understood to mean "those who vote."

IECI UPSET
--------------


5. (C) IECI Commissioner Safwat was disturbed that
the TNA did not change the word for "voter" or clarify
that the term "nakhibeen" means only "those who vote".
He told Poloff on July 24 that IECI would be subject
to political and legal challenges without this
clarification. Safawt asked the acting United Nations
electoral team leader to speak with SRSG Qazi and
requested that he intervene on IECI's behalf. Safawt
also is considering calling a meeting with the
international diplomatic community to request
assistance. (COMMENT: IECI is very upset because it
has been pushing the TNA for a clarification of this
term. IECI is uncomfortable operating within
perceived legal ambiguities, but Post will encourage
IECI to interpret "nahkibeen" the way IECI prefers --
and as the TAL intended -- as "those who vote." We
will also remind Iraqi politicos that any attempts to
take away the three-governorate "veto" clause are
unacceptable and misguided. Insisting that
"nakhibeen" mean "those who are on the voter list"
makes it more difficult for the referendum to pass
because a majority of the registered voters would have
to vote "yes" rather than only a majority of those who
actually vote. END COMMENT.)

ISSUING A CLARIFICATION
--------------


6. (C) Poloff touched base again on July 26 with
Safwat who said that he met with the TNA late July 25.
Safwat said he had received assurances that the TNA
would clarify the term "voters" to mean those who
vote. Separately, Deputy President Adel Abdel Mehdi
told us July 25 that the law as passed and the vague
definition was not helpful. He said that the
Presidency Council would issue a clarification when it
approves the law that the term "voters" means those
who vote, not those registered.

THE FINAL DRAFT
--------------


7. (C) A translation of the final draft of the
referendum law provided by TNA Legal Committee
Chairman Mushen Saadoon on July 24 follows.

Begin Text.

In the Name of God, the most gracious and the most
compassionate.

Draft of referendum law on the project of Constitution

Article 1
The referendum process on the project of constitution
starts on Saturday Oct 15, 2005 by giving the opinion
on the following question: (Do you agree on the
project of the constitution) the answer would be
either Yes or No.

Article 2
Voting on the question of the referendum would be
through general, direct and secret balloting.

Article 3
The person is eligible for voting in the referendum
when such conditions are met:


1. He has to be Iraqi or included in Article 11 of the
TAL;


2. His birth date must be on or before 31 December
1987; and


3. He has to be registered to be able to vote
according to the rules issued from the Independent
Iraqi Elections Committee.

Article 4
The referendum is successful and the project of the
constitution is to be endorsed when the majority of
the voters in Iraq accept it and if two-thirds of the
voters in three or more governorates do not reject it.

Article 5
The Independent Iraqi Elections Committee undertakes
implementing the referendum process and it is in
charge of releasing the necessary rules.

Article: 6
This law is to be enforced from the date of publishing
it in the official gazette.
The Reasons
In order to organize the process of the referendum on
the project of constitution, this law was enacted.

End Text.


8. (U) REO HILLAH, REO BASRAH, REO MOSUL, and REO
KIRKUK, minimize considered.


Khalilzad