CONSTITUTIONAL REVIEW COMMITTEE: PREPARING FINAL

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 001605

SIPDIS

SIPDIS

E.O. 12958: DECL: 05/15/2017
TAGS: PREL PGOV KDEM IZ
SUBJECT: CONSTITUTIONAL REVIEW COMMITTEE: PREPARING FINAL
REPORT, SEEKING FINAL COMPROMISES

Classified By: Political Counselor Margaret Scobey for reasons 1.4 (b)
and (d)


1. (C) Summary. The Constitutional Review Committee's (CRC)
May 15 deadline to submit its recommendations to the Council
of Representatives (CoR) passed with measurable progress on
key issues but without final consensus on issues such as
resource distribution and power-sharing. The most
comprehensive proposals to date focus on judicial reform,
independent institutions and the federation council. While
the CRC has functioned well in the past few weeks, CRC Chair
Humam Hammoudi (SCIRI) and Deputy Chairs Ayad Sammarai (IIP)
and Fouad Massoum (PUK) admit their respective political
leaders are unaware of the impact and scope of the CRC's
recommendations. They agree that support from Iraq's
political leadership is essential before any of the changes
can be accepted. Privately, United Nations Assistance
Mission to Iraq (UNAMI) officers, Sunnis, and Shia CRC
members express concern that Kurdish leaders will refuse to
endorse any amendments which change regional autonomy,
resource distribution or the process for determining Kirkuk's
final status.


2. (C) Summary cont. The CRC intends to address outstanding
issues ) including power sharing between the central and
regional/provincial governments; resource distribution; and
the authorities of Iraq's Presidency Council ) over the next
few days with a goal of completing their report by May 21,
the day before CoR reconvenes. The CRC leadership is
unconcerned that the report is incomplete by the May 15
deadline, citing a letter sent by Hammoudi to CoR Speaker
Mashadani outlining the CRC's progress and outstanding issues
as sufficient. The CRC is prepared to continue working
together until consensus is reached, even if a partial list
of recommendations must be submitted to CoR. Both Hammoudi
and Sammarai recommended that U.S. efforts, particularly with
Kurdish leadership, was now in order to encourage their
support of the CRC's recommendations. End Summary.

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Progress Made: Judiciary; Institutions; Federation Council
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3.(C) The CRC has adopted recommendations on judicial reform
based on suggestions submitted by UNAMI and recommendations
from Iraq's Chief Justice. Some of the proposed judiciary
changes include renaming the "Federal Supreme Court" to the
"Federal Constitutional Court" and granting authority to that
court to review the constitutionality of regional
Constitutions, laws, and regulations. Furthermore, the
CRC, using suggestions again provided by UNAMI, examined the
role of Iraq's independent institutions, clarifying that the
commissions are independent financially and administratively.
They have also proposed an Independent Commission for
Promoting the Constitution. This new commission would be
responsible for informing people about their constitutional
rights, reporting on ministry violation of those rights, and
challenging laws in the Federal Constitutional Court that
appear to violate the Constitution. Finally, the CRC has also
reached consensus on specifying the role of the Federation
Council (FC),the second legislative chamber, in the
constitution. The CRC proposal grants the FC the authority
to draft and consider laws affecting the regions and
governorates. The proposal would also establish how members
are elected to the FC and the number of representatives per
region or governorate.


4. (C) In a May 15 meeting with Legal Advisor and Poloff,
UNAMI representatives stated that further recommendations
relating to Iraq's security forces may be forthcoming. The
CRC is reviewing, UNAMI said, a provision that would allow
the national army to respond to an act of aggression against
a province or a natural disaster within a province without
seeking permission from the local government. UNAMI further
stated that the CRC is debating whether the regional guards
permitted in the constitution would be considered as part of
Iraq's national security forces. Finally, the CRC appears to
have reached consensus on a number of minor changes to the
constitution affecting inheritance and reaffirming a
commitment to hiring public servants on a merit-based system.


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What's Left to Decide: Power and Resource Sharing
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5. (C) Sammarai and Hammoudi each told PolCouns that
consensus on Articles 110 through 115, the constitutional
articles relating to resource distribution and power sharing
between the central and regional governments, has almost been
reached. It appears that the CRC will recommend that customs
policy and administration of waterways will become the

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exclusive domain of the federal government. Furthermore,
according to Sammarai, the CRC's final report will contain a
recommendation that the central government have the authority
to tax and regulate air-traffic control. The CRC, at least
Sammarai and Hammoudi, is further pushing for central
government authority to regulate the distribution of oil
revenue. While the CRC's Kurdish representatives, including
Fouad Masoum, appear to support the principle of this
recommendation, this recommendation does not necessarily have
the support of Kurdish leadership, especially among KDP
leaders.

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Increasing Presidential Powers, Decreasing the PM's Role
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6. (C) Sunni demands that the Presidency be strengthened in
comparison with the Prime Minister's authorities continue.
While Sammarai conceded that it is unrealistic to change
Iraq's commander-in-chief from the Prime Minister to the
President, they remain committed, Sammarai said, to
strengthening the Presidency,s powers. He suggested that
the Sunnis would support increasing the President's
authorities to include the ability to refer executive
decisions and legislation to the judicial system if a
question of constitutionality arose. UNAMI officers assess
that in the coming days Sunni CRC members will continue
endorsing recommendations aimed at shifting power away from
the PM, although it is unlikely that the Shia or Kurdish CRC
members would support any extensive changes in the division
of powers.

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Article 140: The Spoiler in the Review Process?
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7. (C) While CRC contacts have emphasized a desire to address
Article 140, the provision which outlines how the final
status of Kirkuk and the disputed territories will be
determined since the Committee began meeting, it has been
assumed that serious discussion would not occur due to
Kurdish staunch opposition to any change. However, both
Sammarai and Hammoudi told PolCouns that the CRC may propose
a change to Article 140 which would delay the referendum
currently scheduled to occur by December 31, 2007. The
recommendation, put forward by CRC member Abbas al-Bayati
(Shia Coalition, Turkomen),stipulates that Kirkuk would be
considered its own region and would be prohibited from
joining any other region for five years. During that period
an international arbitrator would review boundary disputes
and make recommendations for boundary changes, as allowed for
under Transitional Administrative Law (TAL) 58. At the end
of five years Kirkuk, with its newly defined boundaries, and
any other disputed territories could move forward with a
referendum.


8. (C) Sammarai told PolCouns that Tawafuq supports such a
suggestion and in a May 15 meeting Hammoudi told PolCouns
that this idea has gained momentum in the CRC. The Kurdish
Alliance does not have the authority to negotiate changes to
Article 140 so it is uncertain what action they will take
should such a recommendation be put forward, although Kurdish
leadership would be unlikely to support such a suggestion.

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Other Issues of Concern: Human Rights, Article 41
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9. (C) Several other issues remain which have not been fully
addressed by the CRC, but are of significant importance to
specific groups or communities. Hunain al-Qeddo, CRC member
representing the Shabbak community, has tried to amend
Article 125 to include the Shabbak and Yezidis in the list of
named ethnic minorities whose "administrative, political,
cultural, and educational rights" shall be guaranteed. The
Kurds have opposed this change stating that the Shabbak and
Yezidis are ethnic Kurds, a charge strongly resisted by the
Shabbak and Yezidi communities. The Kurds' motivation,
according to al-Qeddo, is to further their expansionist goals
in northern Ninewa, which includes lands inhabited by the
Yezidis and Shabbak. Sammarai told PolCouns that Tawafuq
supports the Yezidis and Shabbak in their efforts, but
intimated that if they are forced to compromise with the
Kurds on resource sharing and distribution of wealth, they
would yield on Article 125.


10. (C) Article 41, the personal status code, has also
prompted heated discussions amongst women's rights groups who
argue that this article should be deleted completely. They
propose a return to Iraq's Personal Status Law from 1959.
Both the Kurds and the Sunni groups, according to UNAMI,
agree that Article 41 should be deleted. The Shia, however,

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oppose deletion and while they may be open to modification it
is unlikely an acceptable compromise can be found.

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Next Steps: Presenting to CoR, Engaging Party Leadership
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11. (C) UNAMI has suggested that the CRC remain active to
address any unresolved political and technical issues after
the initial report has been submitted to COR. If the CRC
submits an initial report that does not address all issues to
COR, the Speaker may return the report to the CRC so that it
can continue to work to achieve consensus on difficult issues
among the party leadership. Once agreement is reached the
CRC could amend its report and resubmit the amended report to
COR. Debate on the CRC,s report could commence anytime
after the CRC's amended report is submitted to COR. The
constitution does not stipulate a timeframe for this debate,
and CRC members as well as UNAMI expect that CoR members will
debate the recommendations for some time. Following the
debate, CoR will vote on the proposed recommendations. UNAMI
has encouraged Deputy CoR Speaker Khalid al-Attiyah to
prevent the CoR from voting on issues in a "line item"
fashion and instead is suggesting that CoR vote on the entire
package as a whole once political negotiations conclude. CRC
member Abdullah Saleh confirmed to Poloff on May 15 that the
amendments would be voted on as a bloc. The entire package
of approved proposals then would be placed on a referendum
for the public.

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Comment
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12. (C) After stalling following the April 12 CoR bombing,
the CRC has increased momentum in the past couple of weeks,
working diligently to strike compromise and present a
comprehensive list of proposed changes which address Sunni
concerns and make technical improvements to the constitution.
While the compromises so far reached do not address critical
issues such as resource distribution and power sharing, the
process has demonstrated that the CRC is able to work
together and find common ground. Transferring this to the
political party leaders will be a challenge which could delay
final resolution on the outstanding issues. Iraqi political
leaders, ability to reach consensus in the coming weeks on
these difficult political issues will demonstrate their level
of commitment to using the constitutional review process as a
tool for reconciliation.
CROCKER