PART II OF II: AN ARTICLE-BY-ARTICLE ANALYSIS OF

C O N F I D E N T I A L SECTION 01 OF 04 BAGHDAD 003106

SIPDIS

E.O. 12958: DECL: 07/27/2025
TAGS: PREL PGOV KDEM IZ
SUBJECT: PART II OF II: AN ARTICLE-BY-ARTICLE ANALYSIS OF
THE SHIA-PROPOSAL FOR A CONSTITUTION

REF: A. BAGHDAD 3104

B. BAGHDAD 2981

C. BAGHDAD 3055

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


7. (C) EXECUTIVE AUTHORITIES: The document is
designed to avoid another extended executive
government formation process like that inadvertently
offered under the TAL and that took place from January
through April 2005. The assembly must convene within
15 days of the announcement of the election results,
and the President of Iraq must name the prime minister
within 15 days of that opening session. The prime
minister, in turn, has 20 days to form a government.

-- PRESIDENT SUBSUMES THE PRESIDENCY COUNCIL: Unlike
the TAL, the draft Shia text vests all the authorities
of the presidency council in the president alone. The
powers of this position hew closely to the TAL. The
president would have veto power over National Assembly
legislation. The assembly would be able to overturn
his veto with a two-thirds vote. The president would
also hold ceremonial responsibilities and may grant
pardons on the recommendation the prime minister. A
single Vice President would exercise minimal
authorities -- another deviation from the TAL that
would reduce the checks on an energetic executive.

-- PRIME MINISTER'S AUTHORITIES: Prime Ministerial
authorities remain similar to those stipulated in the
TAL with one significant curtailment. The draft
states that the prime minister is unable to fire a
member of his own cabinet without approval from the
National Assembly by absolute majority. A side-note
on the draft states, "This condition would weaken the
prime minister and it is best to remove it."


8. (C) JUDICIAL AUTHORITIES: A limited number of the
provisions on the judiciary (presumably only intended
to address the federal judiciary, though not expressly
stated) are drawn from the TAL. The authorities
outlined in these provisions are at times not
adequately defined or are in tension with other
judicial authorities contemplated by this draft.
Article 1 of Chapter Three appears to expand the
jurisdiction of the judiciary beyond the limits set in
the TAL. While the TAL provides for jurisdiction over
matters of innocence and guilt and matters arising
from the application of federal laws, Article 1 grants
the judiciary "exclusive" power to "consider all
disputes between people, the natural and the
juridical, including the governmental and non-
governmental departments." Such exclusive
jurisdictional authority seems to be in tension with
the existence of the "Regional Judicial Authority"
later stipulated in Section 4.


9. (C) Federal judges are to be nominated by the
Higher Juridical Council, approved by the National
Assembly, and appointed by Presidential decree. The
draft creates a federal supreme court (made up of a
judicial committee and cassation committee, which are
undefined). The Supreme Court would have jurisdiction
along the lines of Article 44(B) of the TAL. There is
no provision that defines the jurisdictional
relationship between the federal courts, including the
Supreme Court, and the constitutional court discussed
below. Nor is there a provision similar to Article
46(B) of the TAL that grants the federal judiciary the
express authority to review local and regional court
decisions on matters of federal law. Article 26 of
Section Four of this draft, for example, only provides
for a law to regulate the relationship between federal
and regional judicial authorities.

--------------
Part IV: Institutions
of the Regional Entities
--------------


10. (C) The opening article of this section states,
"The federal system in (The Federal Iraqi Republic) is
comprised of regional entities, governorates, and a
capital." The text immediately departs from the TAL
thereafter, devising a much more detailed and
expansive set of regional authorities. In some
instances, the sovereignty of the regions is appear to
conflict with authorities reserved for the central
government in Section Five, particularly in the area
of electoral systems.

-- NO LIMIT ON MERGERS: Where the TAL allowed no more
than three governorates to merge to form a regional
entity, the draft document sets no limit on the number
of governorates that may merge. It also eliminates
the National Assembly's right under the TAL to approve
or veto such a move. A final article does, however,
proscribe Baghdad from uniting with any another
region.

-- TO EACH REGION A CONSTITUTION: Where the TAL left
the governing structure of regions open to
development, the draft constitution delineates three
branches of regional government. More significantly,
each regional assembly would be free in its
constitution to establish a council of ministers and
ministries as it sees fit. The first elected assembly
of each regional entity would be charged with drafting
a constitution for the region. A side note on the
document indicates calls by some delegates for Iraq to
have only one constitution. There also is no
provision stipulating that regional constitutions may
not afford less protection to Iraqi citizens than the
national constitution.

-- HOW TO ELECT A REGIONAL PRESIDENT: The draft
demonstrates continued divisions over the mechanism
for electing the president of each regional entity.
One proposal recommends allowing each regional
constitution to delineate the process, another
recommends one process for the whole nation, and
another recommends giving the regional president only
ceremonial powers in any event. The draft calls for
all candidates for regional president to be citizens
of the region and at least 40 years old, although one
objection calling for all Iraqis to be able to run
anywhere is noted. The president of Iraq is tasked
with ratifying the election of regional presidents.

-- OPEN-ENDED REGIONAL AUTHORITIES: The text lays out
diplomatic authorities for the regional president that
are certain to raise loud objections from those who
fear that federalism is a step toward partition.
Article 14 reads, "The president of the regional
entity represents his region abroad and before the
federal authorities and it is he who signs agreements
with other regional entities in the Federal Republic
of Iraq in accordance with the limits set by the
regional constitution." The executive branch of the
regional government is further charged with preparing
a budget. Another loosely prescribed provision,
Article 20, reads, "The regional government
specializes in all that the administration of the
region demands in all respects and in particular with
the administration and organization of the region's
internal security forces." The regional governments
would also seem to possess a check on the use of
Iraq's armed forces within their borders. The text
states that the regional government is only able to
request the assistance of central government security
forces with the approval of the regional legislative
council.

-- AN EXPANSIVE PROPOSAL ON REGIONAL DIPLOMATIC
AUTHORITY: The draft text includes a recommendation by
two delegates that the constitution grant the regional
entities rights similar to those offered to areas in
Switzerland. This recommendation, which the text
notes has met with objections, is offered in Article
22, which reads, "1. Areas may sign agreements with
other countries in their areas of specialty or in
administrative or local matters. 2. These agreements
may not contradict the rights and interests of the
union or the rights of the other areas, and these
areas are obligated to inform the union of such
treaties before signing them. 3. The areas may work
directly with foreign entities that are at their level
while in some other circumstances their interaction
will take place on the level of the federal
government."

-- UNCERTAIN STATUS FOR REGIONAL JUDICIAL ENTITIES:
The judicial authority in the province is composed of
the Regional Juridical Council and the judicial
apparatus therein, and the Regional Court of Cassation
is the top of the judicial pyramid therein and its
consultative council." The relationship between
regional and federal judicial authorities remains
undefined, though the draft text contemplates that the
national assembly will enact a judiciary law defining
the types and jurisdiction of regional courts.

-- A NOD TO UNATTACHED GOVERNORATES: The fifth part of
this section of the draft documents echoes TAL
language on the authorities of governorate councils
and governors. The point of the section is to
demonstrate that governorates can function within the
federal system even if they do not merge to form
regional entities.

--------------
Part V: Constitutional Guarantees
--------------


11. (C) This section lays out the provisions of the
Federal Constitutional Court, Election Commission, and
the Commission for Public Integrity. An attached
section makes the draft document's clearest effort at
proposing solutions to the dispute over revenue
sharing between the central government and provinces.

-- POTENTIAL FOR A POLITICIZED CONSTITUTIONAL COURT:
The draft text opens greater opportunity for
politicians to influence the composition of the
constitutional court than that provided in the TAL for
the composition of the Federal Supreme Court. TAL
Article 44 allows the Higher Juridical Council to
propose a pool of nominees from which the presidency
council then chooses the nine members of the
Constitutional Court. Article 2 of this draft allows
the Higher Juridical Council to name only five of the
members and makes all of the nominations subject to
approval by a two-thirds vote in the National
Assembly. The Prime Minister has the right to present
the National Assembly with 8 nominees to choose from
for the remaining four slots. The language opens the
door to the appointment of Islamic scholars as opposed
to secular lawyers or judges. Article 2 (B) reads,
"Four of the members (will be chosen) from among
Sharia scholars, and law professors and those who are
lawyers, legal consultants, and those who have served
in the field of law for no less than 20 years." Where
the TAL grants the presidency council the authority to
name the chief justice, this draft text lets the
National Assembly elect a President and Vice
President.

-- A STRONG (BUT INCONSISTENT) LIST OF CENTRAL
GOVERNMENT AUTHORITIES: The first and only two
articles of a section entitled "Exclusive Authorities
of the Federal Government" assigns to the federal
government sole authority over foreign policy,
economic, commercial and loan policy; national
security and borders; financial and monetary policy;
regulating weights and measures; transportation
education, environment, health and energy policy.
This list of authorities, while broad, is in tension
with seemingly overlapping authorities laid out for
regional entities in the previous section.

-- MORE EMPHASIS ON IRAQ'S UNITY: Article 1 of this
section reads, "The federal government preserves the
unity and security and independence of the Iraqi
Federal Republic."

-- REVENUE SHARING: The text offers three options on
revenue sharing that move from a centralized system to
the extreme of decentralization. Article 19 of Part
IV of the draft appeared to put off this issue. It
reads, "The revenue of the province is composed of the
allotment agreed from the natural resources, other
regional income, and a grant from the federal
government." Part V re-opens the issue and attempts
to offer multiple options rather than prescribe a
single solution. The three options offered are listed
as follows:

-- OPTION A: The wealth of oil and minerals belongs
to all Iraqis. The federal government shall manage it
and shall allocate a portion of the resources to the
producing regions. This shall be regulated by a law.

-- OPTION B: The wealth of oil and minerals belongs to
all Iraqis. The federal government shall manage it in
cooperation with the regional governments. The federal
government shall allocate a portion of the resources
to the productive regions. This shall be regulated in
a law.

-- OPTION C: The natural wealth (oil, gas and
minerals) is considered the property of all Iraqis and
shall be exploited by the regional governments under
the supervision of the federal government. Its
revenues shall be distributed in accordance with the
following percentages: 5 percent to the producing
governorate; 3 percent to the federal government; and
56 percent to the regional governments. (Comment:
this is the version the Kurdish maximalists wanted -
see ref b.)

--------------
Part VI: Final Rulings
--------------


12. (C) The closing section on final rulings stays
faithful to the TAL language on amendment provisions
and Kirkuk, while offering an even broader mandate to
the De-Ba'athification Commission.

-- MAINTAINING TOUGH AMENDMENT PROVISIONS: The
proposed draft maintains a high standard for amending
the constitution despite calls by some members for a
document more malleable in its early years. The
president and council of ministers can jointly propose
an amendment or one fifth of the National Assembly
members can propose an amendment. The amendment can
only be voted into force by a two-thirds vote in the
assembly or by a popular referendum.

-- OPEN MANDATE ON DE-BA'ATHIFICATION: The draft
document defies the hopes of some delegates who wanted
to see the constitution curtail or set a limit on the
work of the De-Ba'athification Commission. It calls
for the commission to continue its work "until the
completion of its mission." The National Assembly can
halt the work of the De-Ba'athification Commission
only by a two-thirds vote.

-- REAFFIRMING THE IRAQI SPECIAL TRIBUNAL: The text
notes that the work of the Iraqi Special Tribunal
"shall continue."

-- FINESSING ARTICLE 58: The text aims to carry over
the mandate for implementing TAL Article 58 without
adding new complications or guarantees on the issue.
It reads, "The federal government must take the
necessary steps to complete the implementation of the
requirements of Article 58 of the Transitional
Administrative Law, especially part C." (Part C
refers to the permanent disposition of Kirkuk.)

-- SILENT ON CONTINUATION OF EXISTING LAWS, AND
INCOMPLETE ON RATIFICATION: The text is silent on what
happens to existing Iraqi laws after the new
constitution is ratified. The draft's provision for
ratification of the constitution does not appear to
incorporate the potential provincial veto incorporated
in TAL Article 61C. This most likely is not
intentional, as the referendum law recently approved
by the TNA mirrors the language of Article 61C.


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


Khalilzad