THE SUBSTANCE OF THE CONSTITUTION COMPROMISE

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 004223

SIPDIS

E.O. 12958: DECL: 10/13/2015
TAGS: PGOV KDEM IZ
SUBJECT: THE SUBSTANCE OF THE CONSTITUTION COMPROMISE

Classified By: Deputy Chief of Mission David M. Satterfield for reasons
1.4 (b) and (d).


1. (C) SUMMARY: The final set of constitutional amendments
announced on October 12 comprises one major gesture to all of
the constitution's detractors and a series of smaller
provisions to address the concerns of specific communities.
The review clause at the core of the amendment package will
allow the next Council of Representatives a one-time
opportunity to amend the constitution under loosened
amendment procedures. The clause ensures that even opponents
of the constitution will see that the path to affecting
Iraq's development lies within the political system, not
outside it. Another key pair of amendments affirms the
limited scope of the De-Ba'athification process and
recognizes the need for a review of the commission's work --
sentiments that have never been made explicit before. The
remaining amendments address concerns from scattered
constituencies on the issues of culture, antiquities, sports,
citizenship, Iraq's identity, and language usage. END
SUMMARY.


2. (U) The text appended at the bottom of this cable
represents the deal reached and announced on October 12 on a
series of amendments to the constitution. These amendments
will be incorporated into the body of the current text and be
considered as part of the draft constitution for referendum
purposes. The amendments, and the logic behind them, can be
summarized as follows:

-- THE REVIEW CLAUSE: This core amendment was aimed at the
Sunni Arab community, especially those who did not
participate in the last elections. It requires the next
Council of Representatives (COR) to establish a committee to
review the constitution and recommend any amendments
necessary to cement it as a national compact. Amendments can
cover any part of the document and must be approved in a
package by an absolute majority in the COR. They will then
be presented to the Iraqi people in a referendum, which will
be conducted under the same terms as the October 15 vote.
The entire process can take no longer than six months.

-- DE-BA'ATHIFICATION CLAUSES: Two additional clauses
moderate the draft constitution's de-Ba'athification
provisions in Article 131. The clauses, worked on by former
Prime Minister Allawi with an eye toward building bridges
with non-criminal and low-level ex-Ba'athists, offer a
statement on the limits of de-Ba'athification and an
assurance that the next COR will review and monitor the
process.

-- CULTURE ARTICLE: Leading Iraqi cultural figures have
criticized the constitution for lacking a clear reference to
Iraq's heritage and to the need for state support of cultural
institutions. Leading Da'wa Party member Jawad al-Maliki
pushed through an additional article offering such assurances
in the final negotiating session on October 12.

-- ANTIQUITIES JURISDICTION: The original draft constitution
did not place antiquities under exclusive federal
jurisdiction, an oversight that would have jeopardized the
federal government's role in regulating this area by allowing
regional governmental control of antiquities. Such a result
could have made impossible the federal government's effort to
comply with international agreements on antiquity protection,
as it would have lacked sufficient means to fulfill its
obligations. The additional article on the subject resolves
this problem.

-- SPORTS ARTICLE: Several groups of Iraqi sportsmen have
complained to constitution negotiators on all sides that the
document provides no protection or assurances for athletics,
a key part of Iraqi life. A new article on the subject
satisfies their concern.

-- SMALL GESTURES ON LANGUAGE, CITIZENSHIP, AND IDENTITY:
Sunni Arab negotiators had complained that the constitution
allowed Kurdish local institutions to eliminate Arabic usage
altogether. They also attacked the right of Iraqi women to
pass on citizenship to their children and complained that the
constitution put Iraq's Islamic identity before its Arab one.
None of these demands could be met with the extreme measures
that many Sunni Arabs wanted. Instead, the amendments offer
assurances that Kurdish local institutions will use both
languages and that citizenship issues will be regulated by
law, though Iraqi mothers still will be able to pass on
citizenship to their children. Lastly, the sentence
detailing Iraq's Islamic and Arab identity has been reordered
to place the Arab identity first.


3. (U) The following is the final text agreed upon and read
aloud at the extraordinary Transitional National Assembly
session on October 12:

BEGIN TEXT
Amendments to the Constitution

Explanatory Note:

First: The Transitional National Assembly has decided to add
some articles and make some amendments of the draft
constitution.

Second: The added articles and the amendments of some
provisions of the draft constitution shall be considered part
of the draft for which the public referendum will be
conducted on 15th of October.

Chapter One Article (1):

The Republic of Iraq is one federal, independent and fully
sovereign state in which the system of government is
republican, representative (parliamentarian),democratic, and
this constitution is a guarantor of the unity of Iraq.
Amendment to Article (3):

Iraq is a country of multiple nationalities, religions and
sects, and it is a founding and active member in the Arab
League and committed to its charter, and it is part of the
Islamic world.

Amendment to Article (4):

Third: The federal and official institutions in the region of
Kurdistan shall use the two languages.

Rearranging Article (18):

First: The Iraqi nationality is a right for every Iraqi and
is the basis of his citizenship.
Second: Anyone who is born to an Iraqi father or to an Iraqi
mother shall be considered an Iraqi, and this shall be
regulated by law.

All other items shall remain as it is.

Adding an Article numbered (35):

The state shall promote cultural activities and institutions
in a manner that befits the civilizational and cultural
history of Iraq, and it shall seek to support deep-rooted
Iraqi cultural orientations.

Adding an Article numbered (36):

Practicing sports is a right of every Iraqi and the state
shall encourage and care for such activities and shall
provide for their requirements.

Adding the following Article between Articles (109) and (110):

Antiquities, archeological sites, cultural buildings,
manuscripts and coins shall be considered national treasures
under the jurisdiction of the federal authorities, and shall
be managed in cooperation with the regions and governorates,
and a law shall regulate this.

An addition to Article (131):

Fifth: Mere membership in the dissolved Ba'ath party shall
not be considered a sufficient basis or referral to court,
and a member shall enjoy equality before the law and
protection unless covered by the provisions of
De-Ba'athification and the directives issued according to it.

Sixth: The Council of Representatives shall form a
parliamentary committee from among its members to monitor and
review the executive procedures of the Higher Commission for
De-Ba'athification and state institutions to guarantee
justice, objectivity and transparency and to examine their
consistency with the laws. The committee decisions shall be
subject to the approval of the Council of Representatives.

Adding an article before the last two articles:

First: The Council of Representatives shall form at the
beginning of its work a committee from its members
representing the principal components of the Iraqi society
with the mission of presenting a report to the Council of
Representatives, within a period not to exceed four months,
that contains recommendations of the necessary amendments
that could be made to the constitution, and the committee
shall be dissolved after a decision is made regarding its
proposals.

Second: The proposed amendments shall be presented to the
Council of Representatives all at once for a vote upon them,
and shall be deemed approved with the agreement of the
absolute majority of the members of the Council.

Third: The articles amended by the Council of Representatives
pursuant to item (second) of this Article shall be presented
to the people for voting on them in a referendum within a
period not exceeding two months from the date of their
approval by the Council of Representatives.

Fourth: The referendum on the amended Articles shall be
successful if approved by the majority of the voters, and if
not rejected by two thirds of the voters in three or more
governorates.

Fifth: Article (122) of the constitution (concerning amending
the constitution) shall be suspended, and shall return into
force after the amendment stipulated in this Article have
been decided upon.
Khalilzad