AN OVERVIEW OF IRAQ'S TROUBLING AND INSPIRING

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 003104

SIPDIS

E.O. 12958: DECL: 07/27/2025
TAGS: PREL PGOV KDEM IZ
SUBJECT: AN OVERVIEW OF IRAQ'S TROUBLING AND INSPIRING
DRAFT CONSTITUTION


Classified By: Political Counselor Robert Ford.
Reasons 1.4 (B) and (D)


1. (C) SUMMARY: The Constitution Committee convened as a
single body on July 25 to begin debating a draft document
that integrates the work done by six subcommittees. That
draft document, a copy and detailed analysis of which we
are disseminating septel, is more a Shia opening position
than a consensus text but it has been accepted as an
initial basis for negotiations. This cable outlines this
Shia draft's key achievements, defects, and gaps as
follows:

-- ACHIEVEMENTS: The draft offers a wide net of protections
and rights and establishes a three-branch parliamentary
government. The draft recognizes Iraq's minorities more
explicitly than the TAL and provides strong safeguards
against militarism.

-- DEFECTS: The draft allows Islamic law to circumscribe
individual rights, treaty obligations, and potentially
overshadow the constitution itself. TAL safeguards on
women's rights and representation have been dropped or
altered. The text alters the TAL procedure for judicial
appointments and opens the door to the politicization of
the judiciary. The text contains language on the Shia
religion and de-Ba'athification that could provoke Sunni
Arab delegates.

-- GAPS: The text does not make significant headway in
resolving the debate over federalism,. The text reflects
an ongoing debate over whether the Iraq's future political
system will require broad consensus or allow for majority
rule. Proposals on Kirkuk and dual citizenship do not
appear to reflect full consensus. The text fails to
adequately address the role, structure and authorities of
Iraq's judiciary. END SUMMARY.

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An Overview of a Very Rough Document
--------------


2. (C) The following cable offers a broad overview of the
draft constitution now under debate in the Constitution
Committee drafting committee. The draft document, attached
at the end of this cable, was prepared by SCIRI leader and
Constitution Committee Chairman Humam al-Hamudi and passed
to Poloff in confidence. It is more a Shia opening
position than a consensus text. Shia leaders appear to
have withdrawn compromises they previously offered on
religion and state so that they can offer them up again in
the escalating negotiations ahead. Furthermore, the
document is unmistakably a very rough draft. This cable
aims only to cite its key achievements, defects, and gaps.
A separate cable attempts a closer article-by-article
analysis.

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The Draft's Achievements
--------------


3. (C) The document takes important steps toward the
following key achievements:

-- A NET OF PROTECTIONS FOR THE ACCUSED, CHILDREN, AND THE
DISADVANTAGED: The text offers strong protections on search
and seizure and a wide ban on torture and inhumane
treatment. The text places tough limits on child labor,
though it does not ban it entirely, and it contains a flat
prohibition on any government efforts to revoke Iraqi
citizenship. It also steps back from previous drafts that
seemed to put a potentially overwhelming welfare burden on
the state. (See Section 2).

-- AFFIRMING NATIONAL UNITY: The text goes further than the
TAL to acknowledge and enshrine Iraq's mosaic, naming each
Iraqi ethnic and religious minority by name. (See Section
1, Articles 3 and 5)

-- GUARDS AGAINST MILITARISM: The military is placed firmly
under federal control and required to "emulate (Iraq's)
sectarian, religious and national composition." The
National Assembly must authorize the deployment of Iraqi
forces abroad "for defensive purposes" by two-thirds vote.
(See Section 1, Article 14 and Section 3, Chapter 1)

-- THREE-BRANCH GOVERNMENT WITH POWERFUL PARLIAMENT: The
parliament has confirmation authority over a broad range of
senior government officials and, perhaps problematically,
can even prevent the prime minister from firing members of
his own cabinet. The National Assembly also appears to
have veto authority over any loan or project concluded by
the government, a provision that could reduce the
government's flexibility to use even already-budgeted
funds. The text eliminates the body of the "presidency
council" and vests all of that institution's TAL-originated
powers in the hands of a single president. (See Section 3,
Chapters 1 and 2)

-- FINESSING KIRKUK: The draft text makes an artful effort
to finesse the problem of Kirkuk, emphasizing the need for
Article 58 to be implemented but not deviating from the
outline offered in the TAL that puts off border adjustments
and a referendum until after the constitution. (See
Section 6, Article 4)
-- POSSIBLE COMPROMISE ON DUAL-CITIZENSHIP: The document
appears to make an effort to achieve a compromise on the
controversial issue of dual citizenship. In this text,
the right to dual citizenship is granted but National
Assembly membership and other senior positions in the
government appear limited to those who are children of two
Iraqi parents. (See Section 2, Article 4 and Section 3,
Article 4)

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The Draft's Defects
--------------


4. (C) Even as it stakes out progress in the above areas,
this draft, in addition to being loosely written and self-
contradictory, raises several areas of concern:

-- ISLAM OVERSHADOWS THE CONSTITUTION, INTERNATIONAL LAW:
Islam is described as "the principal source of law" and
Iraq's treaty obligations and guarantees on women's rights
are all bounded by the condition that these treaties and
rights "do not violate the rulings of Islam." The text
alters the appointment procedure for the Federal
Constitutional Court in a manner that would appear to allow
the Council of Ministers greater latitude to politicize or
even Islamize the body. The document contains an article
that enshrines the "independence" of the "marja'iya," or
religious authority, which puts a distinctly Shia cast on
what is supposed to be a non-sectarian document. (See
Sections 1 and 2)

-- SAFEGUARDS AGAINST THEOCRACY DROPPED: A final draft
from sub-committee number two, obtained July 23 by Poloff,
would have declared religious commitments essentially
voluntary and allowed citizens to choose the personal
status law they want applied to them, be it Sunni, Shia,
Christian or even civil law. The new draft omits that
article. This text drops this language, although the
Iraqi Penal Code currently does proscribe any punishments
not provided for by law.

-- SAFEGUARDS, GUARANTEES ON WOMEN'S RIGHTS, REPRESENTATION
DROPPED OR ALTERED: The text makes its guarantees on
women's rights subject to "rulings of the Islamic Sharia."
The text drops the TAL provision that guaranteed women a
quarter of the seats in the National Assembly, although
several female members of the committee have insisted that
they are confident this guarantee will be reinstated
without bruising debate. (See Section 2, Article 6)

-- PROVOCATIVE MEASURES FOR SUNNI ARABS: The mandate of the
De-Ba'athification Commission, which many Sunnis hoped
would end with the writing of a new constitution, is
strongly reaffirmed. The constitution also guarantees the
rights of Iraq's "Persian" community by name (albeit in
bracketed language),a tolerant if obscure gesture that
Sunni Arabs are likely to consider a nod to a "fifth
column" in their midst. (See Section 1, Article 3, and
Section 6, Article 3.)

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The Draft's Gaps
--------------


5. (C) The draft fails to resolve, treats ambiguously, or
omits several key issues:

-- NO RESOLUTION ON FEDERALISM, ONLY OPTIONS: The text
removes the TAL's limitations on federalism, allowing an
unlimited number of regions to unite without any approval
from the central government. The text makes a stab, in
extremely loose language, at laying out the authorities of
the regional entities. It calls for a multiplicity of
constitutions, one for each region, and it allows each
regional president to represent his area abroad and enter
into certain limited treaties with foreign countries. It
also implies that the regions would have responsibility for
internal security, which presumably means full control over
the police forces, an area currently limited by the
authority of the Interior Ministry. Even as it lays out
these provisions, the text records objections from other
members. A series of alternative provisions on revenue
sharing present more a menu of options than an actual
proposal, ranging from centralization to extreme
decentralization of resource ownership and management. (See
Section 4)
-- A PIVOTAL DEBATE OVER ELECTING THE PRESIDENT: The draft
text shows an ongoing debate over whether the assembly
would elect the president and vice president by absolute
majority or two-thirds majority. The TAL calls for this to
be a two-thirds vote, and that steep requirement forced the
Shia list and Kurdish alliance to ally after the January
2005 elections and produce a coalition government. (See
Section 3, Chapter 2, Article 2)

-- NO SUPREMACY CLAUSE: Unlike the TAL (see TAL Article
3A),the draft text contains no "supremacy clause" making
clear that the constitution is the highest law in Iraq.
The draft proposes the establishment of a Supreme
Constitutional Court and a Supreme Federal Court but does
not adequately lay out the differences in the two courts
jurisdictions. (See Section 3, Chapter 3)


7. (U) REO HILLA, REO BASRA, REO MOSUL, and REO KIRKUK,
minimize considered.


Khalilzad