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

C O N F I D E N T I A L SECTION 01 OF 07 BAGHDAD 003107

SIPDIS

E.O. 12958: DECL: 07/27/2025
TAGS: PREL PGOV KDEM IZ
SUBJECT: PART I 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).


1. (C) SUMMARY: This cable offers a detailed analytic
review of the draft constitution text under discussion
in the Constitution Committee as of July 27. (Reftel
offers a quick overview of the contents of this draft
text.) The document is unmistakably a very rough
draft. Although ostensibly an integrated document
pulling together work from six sub-committees, the
draft is more a Shia opening position than a consensus
text. Deputy President Abdel Mehdi told the
Ambassador July 25 that it came in response to Kurdish
demands (reported in ref b). The negotiating is
underway as this cable goes out on July 27. We are
engaged with committee members daily and pushing for
stronger guarantees on personal freedoms and a
unifying vision on federalism. Most importantly, we
are pushing for full participation in the drafting
process, particularly following the formal end on July
25 of the brief Sunni Arab boycott of constitution
committee deliberations. Even our Shia contacts, much
less the Kurds and Sunni Arabs, expect the Shia-
proposed draft to evolve dramatically in the days
ahead. This detailed analysis is interesting because
it shows what the Shia maximalist demands are and what
kind of vision they see for the state, especially on
issues such as balancing individual freedoms and
Islam, the broad extent of regional government
authorities. END SUMMARY:

--------------
The Context of the Document
--------------


2. (C) Constitution Committee Chairman Humam al-
Hamudi has passed to us and distributed to committee
members as of July 24 a draft constitution that
integrates the work done by each sub-committee. The
distribution and discussion of this document
represents the start of the second phase of the
committee's deliberations, which up until now have
taken place only in sub-committees. Although the
document purports to take all of the work done to date
and simply merge it into one document, Hamudi and Shia
Islamists have clearly put their own gloss on the
text, backtracking on previous compromises and
introducing a host of Islamic provisions that were not
agreed on at the sub-committee level. The document is
unmistakably a very rough draft. It is filled with
imprecise and ambiguous language, parenthetical
points, alternative options, gaps, recorded
objections, and is at times self-contradictory.

--------------
A CLOSER ANALYSIS:
Part I, Founding Principles
--------------


3. (C) The opening articles of the constitution offer
succinct language on several key issues and feature
aggressive efforts by Islamists to put a religious
stamp on the state.

-- NAMING THE REPUBLIC: Article 1 reads, "The Iraqi
(Islamic Federal) Republic is a sovereign independent
state. The system of government is republican,
democratic, unionist (federal)."

-- ANALYSIS: The parenthetical inserts indicate a bold
effort by Islamists to have Iraq named an "Islamic"
Republic, a phrase in use in Iran. The text also
reveals ongoing sensitivity over the word "federalism"
with efforts in the Arabic to use the synonym
"unionist." We doubt this will stick.

-- ESTABLISHING AN OFFICIAL RELIGION: Article 2
reads, "Islam is the official religion of the state
and the basic (in Arabic "asasi;" it can also be
translated as principal) source of law. No law may be
passed that contradicts its principles and rulings
(its agreed principles) and this constitution
preserves the Islamic identity of the majority of the
Iraqi people (in its Shia and Sunni majority) and
respects all the rights of the other religions."

-- ANALYSIS: Constitution Chairman Humam al-Hamudi has
assured us on multiple occasions that he supports
naming Islam only "a source among sources of law," and
this language contradicts those assurances. It is
most likely a retraction made in preparation for the
tough negotiations ahead. If passed, however, this
language would represent a dramatic departure from the
limiting language on Islam proffered under the TAL,
and would appear to subordinate all future laws, if
not all provisions of the constitution, to IslamQThis
would weaken the authority of the entire document.
TAL Article 7 (A) and previous drafts referred to
Islam as "a source of law" and here it has become "the
principal" source. TAL Article 7 (A) forbade the
passage of laws "that contradict the universally
agreed tenets of Islam, the principles of democracy or
the rights cited in Chapter Two." That language put
Islam on a parallel level with democratic principles
and constitutional rights. The new text appears to
drop those benchmarks and allows Islamic law to trump
other sources of rights. Article 10 may mitigate
these concerns or merely create a contradiction and
tension in the whole text. It reads, "Freedoms and
basic rights found in the constitution are guaranteed
for all and no law may be passed that that curtails
them."

-- DEFINING THE NATION: Article 4 reads, "The Iraqi
people are made up of two principal nationalities and
they are Arab and Kurdish, and of essential
nationalities and they are Turkmen, Chaldean,
Assyrian, Syriac, Armenian, and Shabak (and Persian)
and Yezidi and Sabean Mandean, all of which have equal
rights and duties in citizenship."

-- ANALYSIS: This article goes farther than the TAL
ever did to meet minority demands that their presence
be recognized by name. In the process, however, the
drafters show signs of creating new problems even as
they solve an old one. The parenthetical reference to
Iraq's "Persian" community is already raising alarm
for Sunni Arab delegates who see it as an effort to
legitimize Iranian influence in Iraq.

-- IRAQ AND ARABISM: Article 5 reads, "The Iraqi state
is part of the Arab and Islamic worlds (or The Iraqi
state is a founding member of the Arab League and
Islamic Conference Organization)."

-- ANALYSIS: This text makes an effort to address the
issue of Iraq's Arab identity through two potential
compromise formulas. It may yet raise concerns among
Kurds and others worried about legitimizing Ba'athist
pan-Arab ideology.

-- AFFIRMING IRAQ'S UNITY: Article 8 reads, "The state
of Iraq is unified in land, people and sovereignty."

-- ANALYSIS: This article will address the fears of
Sunni Arabs who fear partition, but it stops short of
declaring the country "indivisible."

-- A FAMILY VALUES PROVISION: The language for Article
9 is presented parenthetically and appears open to
negotiation or elimination. It reads, "The family is
the foundation of society. The state preserves the
original Iraqi character of the family, which is based
on religious principles and values, and morality and
patriotism. It guarantees the protection of
motherhood and childhood and oversees youth and
provides the proper circumstances for the development
of their aptitudes and abilities."

-- BROAD EFFORT TO MARGINALIZE THE BA'ATH: Article 11
reads, "There is a ban on the ideology and practice of
thought, under any name, that adopts (or that strives
for or praises or paves the way for or promotes)
racism, terrorism and the charge of apostasy,
especially the Saddamist Ba'ath." Later sections
carry on the policy Qnounced in this section. In
addition, Section 3, Article 4 includes the TAL's
prohibition against the candidacies for the National
Assembly of individuals who fall subject to the de-
Ba'athification law. Finally, Section 6, Article 3
makes clear that the Supreme National De-
Ba'athification Commission shall continue its work
until the "conclusion of its mission" or until it is
ended by a 2/3 vote of the National Assembly. This
would constitutionalize a process heretofore only
addressed in CPA orders, Governing Council and
National Assembly decrees, and short section of the
TAL.

-- ANALYSIS: Here too we find language that may solve
one probQm while creating another. By banning
specifically the "Saddamist Ba'ath," this text offers
a nod to those Ba'athists who claim that de-
Ba'athification has been pursued too broadly because
the party was distorted under the former regime.
Saddamists are the criminals, not simply Ba'athists,
they say, and this text seconds that. However, by
broadly banning racism under any name, the provision
opens the door to legislation against political
parties already on the scene, several of which mirror
the chauvinistic pan-Arab, socialist approach of the
Ba'ath. Poloff previously asked Constitution
Committee Chairman Hamudi if he saw this provision as
banning any parties he has heard of recently, and he
would not rule out the idea.

-- COMMITTING IRAQ TO THE INTERNATIONAL COMMUNITY:
Article 12 reads, "Iraqi internal and foreign
relations are based on peace and cooperation with all,
particularly with neighboring countries." Article 13,
further breaking with the past, reads, "The state of
Iraq is committed to international treaties that do
not contradict the rulings of this constitution."

-- REGULATING THE MILITARY: Article 14 reads, "The
Iraqi Armed Forces, including all services and
security organizations, are part of the Iraqi people
and represent them in its national, religious, and
sectarian composition. It is under the leadership of
civil authority and its mission is the defense of the
state of Iraq and it cannot intervene in political
affairs and has no role in the transfer or power. It
is forbidden to use it to oppress the Iraqi people."

-- ANALYSIS: This language does an important job of
addressing concerns about a sectarian and oppressive
military. Other provisions continue this effort by
banning active soldiers and intelligence officials
from political office and by stipulating that all
handovers of power be made peacefully.

-- ENSHRINING THE MARJA'IYA: Article 15 reads, "The
religious authority (marja'iya) has independence and
sacred place of guidance as an exalted, patriotic and
religious symbol."

-- ANALYSIS: Rumors of this provision have already
prompted surprise and amazement from Sunni
participants in the constitution drafting process.
This text, more so than any other section of the
document, attempts to put a Shia stamp on the
constitution without offering any parallel language
for religious figures of other faiths. The writers of
the draft appear well aware of this, for accompanying
this section is a note, "Some have reservations (about
this article)."

--------------
Part II: Fundamental Rights
and Public Freedoms
--------------


4. (C) The first several articles in this section lay
out strong provisions for equal rights, basic
freedoms, and equal opportunity, but a series of
Islamic conditions on more specific rights and the
broad provisions made in Part I throw these early
guarantees into question.

-- BASIC FREEDOMS: The first three articles provide
for equality beforeQe law and band discrimination on
any basis, including gender. They guarantee the right
to privacy, and provide for equal opportunity.
However, Article 14, which discusses privacy in the
context of the home and freedom of communication,
makes the former subject to exceptions "in accordance
with the law," and the latter subject to "legal and
security necessity."

-- DUAL CITIZENSHIP: Further provisions in Article 4
allow Iraqis who had their citizenship revoked to
reclaim it; this is important to Shia and Kurds. The
same article provides for dual citizenship, which
Sunni Arab delegates have complained will open the
door to excessive influence from the sizeable Iraqi
community in Iran. To address this concern, the
constitution in subsequent sections limits elected
office to those who are children of two Iraqi parents.
Hamudi has also mentioned the idea of limiting elected
office to those who renounce all but their Iraqi
citizenship.

-- SAFEGUARDING THREATENED RIGHTS: Further provisions
in articles 7-9 put limits on limits on child labor
and ban torture and illegal search and seizure. The
provisions ban the state from exiling its citizens
illegally; a practice of the former regime, and ban
state-imposed limits on movement, assuming such
movement does not violate "public order and morals."

-- ONE SAFEGUARD AGAINST ISLAMIC LAW DROPPED: The text
does not include past provisions that forbade the
state to prosecute crimes or impose punishments not
recorded in the law. The text notes a general debate
on the subject but offers no language on the issue.
Such a provision would prevent the state from using
religious sources as a free-form legal guidance,
delineating and prosecuting crimes in accordance with
interpretation or provisions. However, the Iraqi
criminal code already includes such a prohibition.

-- LIBERAL PROVISION ON PERSONAL STATUS DROPPED: The
current draft text lacks a personal status provision
that Sub-Committee Secretary Kameran Saeed touted on
July 25 to Poloff as one of the strongest liberal
provisions. That provision had made it clear that
religious obligations are voluntary commitments and
allowed all citizens the right to choose the personal
status law they saw appropriate to their identity, be
it Christian, Sunni, Shia, or secular. The provision,
now omitted, read, "The followers of every religion or
sect are free in their commitment in personal status
according to their religious and sectarian beliefs,
and (they are free) in the practice of their religious
rites in their places of worship and holy sites. All
of this will be done in the limits deemed permissible
to them and in accordance with the constitution and
the law. It is not permissible for any faith or
sectarian action to be used as a cover for civil
strife or inciting problems in the society." It is
likely that supporters of such a provision will try
again to have it inserted.

-- MANDATORY NATIONAL SERVICE DROPPED: The integrated
draft text drops a clause in the final sub-committee
proposal that reads, "Every Iraqi must defend the
nation and preserve its unity unless his service is
regulated by law and equivalent to volunteer work."

-- CLEAR ISLAMIC RESTRICTIONS ON WOMEN'S RIGHTS:
Article 6 reads, "The state guarantees women's basic
rights and her equality with men in all areas in
accordance with the rulings of Islamic Sharia, and
(the state) assists her in reconciling her duties
toward the family and her work in the society." As
reported ref c, this language offers room for abuse
and limitation of women's rights, and introduces a
tension with the unlimited guarantees offered in the
first articles. It adds an Islamic restriction that
the sub-committee charged with drafting this section
had never recommended. The Sub-Committee Secretary,
Yezidi leader Kameran Khairi Saeed, has passed to
Poloff a "final" copy of his committee's work that has
no Islamic reference, offering simply, "The state
guarantees women's basic rights and her equality with
men in all areas in accordance with the law." The
added language on state "assistance" in reconciling a
women's work and family obligations also appears to
open the door to government intervention in personal
life despite other guarantees of privacy.

-- FREEDOM OF EXPRESSION AND RELIGION GUARANTEED BUT
BOUNDED BY "MORALS": Articles 11 and 12 guarantee
freedom of expression and religion while placing an
identical "morals" limitation on both. The wording of
the provisions at times implies that these rights are
guaranteed only in the event that subsequent
legislation does not take them away. The final
proposed document on rights and freedoms from the
second sub-commQtee did not include such a limitation
and it appears to have been added during the process
of integrating the texts. Article 11 reads, "Every
individual has the right to express an opinion through
any means guaranteed by law provided it does not
violate public order and morals. And the state
guarantees: A. Freedom of press and printing and
advertising and assembly and peaceful demonstration.

B. Founding and joining associations and political
parties and professional syndicates and unions."
Similarly, Article 12 reads, "Freedom of religion and
belief and the practice of religious rites are
guaranteed in accordance with the law provided it does
not violate public order and morals." Making freedoms
dependent on "public morals" opens the door to
legislative and judicial restrictions on rights.

-- POTENTIAL FOR EX POST FACTO LAWS: Article 14 (I)
appears to permit ex post facto criminal laws. The
provision states, "Criminal laws shall not have a
retroactive effect unless the law stipulates
otherwise."

-- BAN ON MILITIAS OR SECRET ORGANIZATIONS: Article 16
B will reassure some Sunni Arabs with a clear ban on
militia activity even as victims of the former regime
look to it as a bulwark against the Ba'ath, which
arose as a secret movement. It reads, "The
establishment, secretly or openly, of civil
institutions that have an antagonistic character, or
that damage the society, or that have a military
character, or of an armed militia, is forbidden."

-- USING ISLAM TO BOUND INTERNATIONAL TREATY
OBLIGATIONS: Article 17 of this section puts a Islamic
condition on all Iraqi treaty obligations that throws
its commitment to international obligations into
question. It reads, "In addition to all the rights
mentioned in this constitution, an Iraqi enjoys all
rights stipulated in international treaties that Iraq
is a party to insofar as they do not contradict with
the principles of Islam." This qualification is
particularly worrisome when one considers that some
radical Islamists argue that the Sharia specifically
supports weapons of mass destruction and terrorism.

-- LIMITING STATE WELFARE OBLIGATIONS: This draft
text takes a step back from earlier drafts that risked
putting significant welfare obligations on the
government. Under Article 19, state resources limit
state obligations as follows, "All Iraqis have the
right to education and health care and social security
and the availability of work opportunities and the
state must guarantee this within the limits of its
resources." A provision in a preliminary draft that
would have obligated the state to pay pensions and
unemployment insurance was dropped entirely.

--------------
Part III: Institutions
of the Federal Government
--------------


5. (C) The third chapter of the constitution outlines
the structure of government while introducing a number
of small but potentially significant changes to the
system. Echoing the TAL, it provides for three
branches of government and the separation of Qwers.
While the chapter is relatively complete, the text
contains some internally inconsistent discussion on
relations between the three branches (including
appointment of Higher Juridical Council members).
Later drafts presumably will rectify this.


6. (C) LEGISLATIVE AUTHORITIES: The draft document
calls for a bicameral legislature consisting of a
National Assembly and a "Council of Provinces and
Governorates." The text that follows, however, only
describes the authorities of the National Assembly,
leaving doubts about even the existence of the
"Council of Provinces and Governorates." The draft
also does not address the issue of Iraq's electoral
law or the shape of the next elections, a matter that
some have argued is not constitutional in nature.

-- SEAT DISTRIBUTION OFFERS NO PROVISION FOR WOMEN:
This text establishes a ratio of one representative
for every 100,000 people, and a side-note indicates
they expect to arrive at 275 seats. The text notes a
recommendation that 5 extra seats be set aside for
minorities and filled by the provinces and
governorates. The text contains no provision ensuring
one-quarter representation for women as found in TAL
Article 30 (C).

-- MEMBERSHIP REQUIREMENTS KEEP HALF-IRAQI'S AND
SOLDIERS OUT: The Assembly membership requirements
stipulate that all members must be born of two Iraqi
parents, a provision that may assuage fears by Sunni
Arabs that some representatives will have dual
loyalties. The text adheres to the requirements laid
out in the TAL with a few interesting additions that
broaden the ban on former regime figures. It states,
similar to the TAL, that candidates may not be
"covered by de-Ba'athification law" or have been
members of the former "apparatus of oppression." It
adds, however, nominees must also "not be a member of
the armed forces or security services at the time of
nomination." These standards also apply to the prime
minister.

-- SIMPLE AND ABSOLUTE MAJORITIES FOR MOST KEY
DECISIONS: The draft sets a four-year election cycle
and two 6-month sessions for the assembly per yeaQ
Quorum is set at an absolute majority of members, a
step that could favor a future successful Shia
alliance. A simple majority, unless specified
otherwise, would be required for all decisions. The
draft text shows an ongoing debate over whether the
assembly would elect the president and vice presidents
by absolute majority or two-thirds majority. The
National Assembly would confirm the prime minister and
cabinet by absolute majority. The document continues,
as per the TAL, to allow the assembly to ratify
treaties by a simple majority vote. The draft also
maintains the call for an absolute majority vote in
the confirmation of the prime minister and his
cabinet.

-- 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
National Assembly, according to this Shia-proposed
text, would also have the ability to confirm the prime
minister and cabinet by absolute majority. Choosing
the president by absolute majority would significantly
diminish the need for future Iraqi governments to be
based on broad coalitions spanning across ethnic/
religious groups. A majority in parliament (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 elections.)

-- STRONG CONTROL OF ARMED FORCES: The Assembly must
authorize the deployment of Iraqi armed forces abroad
by a two-thirds vote. An absolute majority, however,
can approve the deployment of the Iraqi armed forces
for a UN mission. The assembly must approve a
declaration of war or announcement of a state of
emergency by a two-thirds vote. The latter is limited
to one-month periods, subject to renewal.

-- POTENTIAL TO MICROMANAGE GOVERNMENT ECONOMIC
POLICY: Article 22 appears to give the National
Assembly significant authority to micromanage the
economic development work of the government within
approved budgetary outlays by granting it the right to
"consider" any project or loan concluded by the Iraqi
government that would require expenditure of Iraqi
funds. (Comment: given the enormous abuses of Iraqi
oil wealth in the Saddam regime, such a limitation is
understandable but problematic. End Comment.)

-- EXTENSIVE SECURITY AND JUDICIAL CONFIRMATION
POWERS: The assembly must approve a wide range of
appointments by the prime minister, including the
chiefs of staff of the armed forces, director of the
intelligence service and members of the national
security council. Acting by absolute majority, the
assembly would also have to confirm the council of
ministers' appointments to the Higher Juridical
Council. A two-thirds majority would be required to
approve judicial appointments by the prime minister to
the Constitutional Court. The assembly would also be
required to approve the Higher Juridical Council's
nominees for the justices of the court of cassation
and for general prosecutor.

-- AN ARRAY OF NO CONFIDENCE VOTES: The assembly
would be able to withdraw confidence in the prime
minister by an absolute majority provided such a vote
is called by either one-fifth of the members; the
president, and then only under "justified essential
reasons"; or in the event that the prime minister has
been convicted by the Supreme Court (presumably of
criminal offense, though the supreme court is not a
criminal court). The National Assembly would have the
right to withdraw confidence in individual ministers
by absolute majority in the event of an "absence of
capability or integrity." (A separate, apparently
contradictory article calls for a two-thirds majority
on such no confidence votes.) The assembly may
dissolve itself by a two-thirds vote, which would
force elections within three months.

-- STANDARDS FOR SUCCESSION: If the president steps
down, his deputy replaces him and the assembly must
elect a new president within one month, according to
the draft. If the Council of Ministers receives a no-
confidence vote, they may finish out their term for
one month. If the prime minister steps down, the
deputy prime minister replaces him or her for at most
one month.


Khalilzad