US embassy cable - 05BAGHDAD3088

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 003088 
 
SIPDIS 
 
E.O. 12958: DECL: 07/26/2025 
TAGS: PREL, PGOV, KDEM, IZ, National Assembly 
SUBJECT: TNA PASSES CONSTITUTION REFERENDUM LAW BUT SOME 
SCRAMBLING TO FIX VAGUE LANGUAGE 
 
REF: BAGHDAD 3017 
 
Classified By: Political Counselor Robert Ford. 
Reasons 1.4(b) and (d) 
 
1.  (C) Summary.  The TNA passed the law governing the 
procedures for the October 2005 constitutional 
referendum on July 24 but failed to clarify whether 
the use of the Arabic term "nakhibeen" means "those 
who vote" or "those on the voter list."  The manner in 
which the terms was let vague gives rise to suspicions 
that Shia politicians were trying an end run around a 
provision in the TAL that gives minorities like Kurds 
and Sunni Arabs more leverage over the constitution. 
TNA Legal Committee Chairman Mushen Saadoon assured 
PolOff July 25 that the TNA did not want to change the 
Arabic language found in Article 61(C) of the TAL. 
The Independent Electoral Commission of Iraq (IECI) 
reacted negatively and asked UNAMI to intervene on 
IECI's behalf.  Embassy will encourage IECI to 
interpret "nakhibeen" the way IECI prefers and the way 
it was intended in the TAL, as "those who vote."  We 
also learned July 25 that the Presidency Council will 
issue a clarification that the vague language is to be 
interpreted as "those who vote" - thus re-establishing 
beyond question the balance in the TAL.  In our own 
contacts, we will point out to Iraqi politicos that 
any possible, misguided attempts to strip away the 
three-governorate "veto" clause would be very 
unhelpful.  A translation of the law follows.  End 
Summary. 
 
TNA PASSES WITH AMBIGUITIES 
--------------------------- 
 
2.  (C) The TNA passed the draft referendum law on 
July 24 but failed to clarify whether the use of the 
Arabic term "nakhibeen" means "those who vote" or 
"those on the voter list."  If the Presidency Council 
does not reject the draft within 15 days, it will 
become law.  Article 4 of the draft referendum law 
copies Article 61(C) of the TAL in Arabic in its 
entirety, including use of the term "nakhibeen." 
Thus, the possible ambiguity of the Arabic term 
"nakhibeen," passed into the new referendum law.  In 
the English version, Article 61(C) states, "The 
general referendum will be successful and the draft 
constitution ratified if a majority of the voters in 
Iraq approve and if two-thirds of the voters in three 
or more governorates do not reject it."  The TAL 
intends that "voters," or "nakhibeen", mean "those who 
vote," rather than "those on the voter list," or 
"those eligible to vote." 
 
3.  (C) During the 17 July TNA session, Shia Coalition 
parliamentarians Saad Qindell and Asamaa Al-Musawi 
argued that the correct translation of "nakibeen" is 
"constituents" or "those on the voter list."  Without 
explanation, Da'wa parliamentarian Nuri Kamel added 
that the interpretation "those who vote" could be used 
by people "who want to stop the constitution."  The 
discussion ended without the resolution of this issue, 
and TNA Speaker Hassani closed the debate by stating 
that the matter would be clarified with the UN. 
PolOff July 18 cautioned TNA Legal Committee Chairman 
Mushen Saadoon that the TAL intended the term 
"voters," as defined in Article 61(C), only to include 
"those who vote."  A different interpretation, i.e. 
defining "voters" as "those eligible to vote," would 
have the negative effect of stripping away the three- 
governorate "veto" provision specifically inserted in 
the TAL to protect minority groups.  Saadoon at this 
July 18 meeting agreed with this position and assured 
PolOff that the final draft subject to vote by the TNA 
would clarify that "voters" meant "those who vote." 
 
4.  (C) After the July 24 vote, Saadoon told PolOff 
that the TNA did not want to change the Arabic 
language found in Article 61(C). He said that he would 
cooperate with the Independent Electoral Commission of 
Iraq (IECI) to ensure that the term "nahkibeen" is 
properly understood to mean "those who vote." 
 
IECI UPSET 
---------- 
 
5.  (C) IECI Commissioner Safwat was disturbed that 
the TNA did not change the word for "voter" or clarify 
that the term "nakhibeen" means only "those who vote". 
He told Poloff on July 24 that IECI would be subject 
to political and legal challenges without this 
clarification.  Safawt asked the acting United Nations 
electoral team leader to speak with SRSG Qazi and 
requested that he intervene on IECI's behalf.  Safawt 
also is considering calling a meeting with the 
international diplomatic community to request 
assistance.  (COMMENT:  IECI is very upset because it 
has been pushing the TNA for a clarification of this 
term.  IECI is uncomfortable operating within 
perceived legal ambiguities, but Post will encourage 
IECI to interpret "nahkibeen" the way IECI prefers -- 
and as the TAL intended -- as "those who vote."  We 
will also remind Iraqi politicos that any attempts to 
take away the three-governorate "veto" clause are 
unacceptable and misguided.  Insisting that 
"nakhibeen" mean "those who are on the voter list" 
makes it more difficult for the referendum to pass 
because a majority of the registered voters would have 
to vote "yes" rather than only a majority of those who 
actually vote.  END COMMENT.) 
 
ISSUING A CLARIFICATION 
----------------------- 
 
6.  (C)  Poloff touched base again on July 26 with 
Safwat who said that he met with the TNA late July 25. 
Safwat said he had received assurances that the TNA 
would clarify the term "voters" to mean those who 
vote.  Separately, Deputy President Adel Abdel Mehdi 
told us July 25 that the law as passed and the vague 
definition was not helpful.  He said that the 
Presidency Council would issue a clarification when it 
approves the law that the term "voters" means those 
who vote, not those registered. 
 
THE FINAL DRAFT 
--------------- 
 
7.  (C) A translation of the final draft of the 
referendum law provided by TNA Legal Committee 
Chairman Mushen Saadoon on July 24 follows. 
 
Begin Text. 
 
In the Name of God, the most gracious and the most 
compassionate. 
 
Draft of referendum law on the project of Constitution 
 
Article 1 
The referendum process on the project of constitution 
starts on Saturday Oct 15, 2005 by giving the opinion 
on the following question: (Do you agree on the 
project of the constitution) the answer would be 
either Yes or No. 
 
Article 2 
Voting on the question of the referendum would be 
through general, direct and secret balloting. 
 
Article 3 
The person is eligible for voting in the referendum 
when such conditions are met: 
 
1. He has to be Iraqi or included in Article 11 of the 
TAL; 
 
2. His birth date must be on or before 31 December 
1987; and 
 
3. He has to be registered to be able to vote 
according to the rules issued from the Independent 
Iraqi Elections Committee. 
 
Article 4 
The referendum is successful and the project of the 
constitution is to be endorsed when the majority of 
the voters in Iraq accept it and if two-thirds of the 
voters in three or more governorates do not reject it. 
 
Article 5 
The Independent Iraqi Elections Committee undertakes 
implementing the referendum process and it is in 
charge of releasing the necessary rules. 
 
Article: 6 
This law is to be enforced from the date of publishing 
it in the official gazette. 
The Reasons 
In order to organize the process of the referendum on 
the project of constitution, this law was enacted. 
 
End Text. 
 
8.  (U) REO HILLAH, REO BASRAH, REO MOSUL, and REO 
KIRKUK, minimize considered. 
 
 
Khalilzad