US embassy cable - 05BAGHDAD3104

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 003104 
 
SIPDIS 
 
E.O. 12958: DECL: 07/27/2025 
TAGS: PREL, PGOV, KDEM, IZ, National Assembly 
SUBJECT: AN OVERVIEW OF IRAQ'S TROUBLING AND INSPIRING 
DRAFT CONSTITUTION 
 
 
Classified By: Political Counselor Robert Ford. 
Reasons 1.4 (B) and (D) 
 
1.  (C) SUMMARY: The Constitution Committee convened as a 
single body on July 25 to begin debating a draft document 
that integrates the work done by six subcommittees.  That 
draft document, a copy and detailed analysis of which we 
are disseminating septel, is more a Shia opening position 
than a consensus text but it has been accepted as an 
initial basis for negotiations.  This cable outlines this 
Shia draft's key achievements, defects, and gaps as 
follows: 
 
-- ACHIEVEMENTS: The draft offers a wide net of protections 
and rights and establishes a three-branch parliamentary 
government.  The draft recognizes Iraq's minorities more 
explicitly than the TAL and provides strong safeguards 
against militarism. 
 
-- DEFECTS: The draft allows Islamic law to circumscribe 
individual rights, treaty obligations, and potentially 
overshadow the constitution itself.  TAL safeguards on 
women's rights and representation have been dropped or 
altered.  The text alters the TAL procedure for judicial 
appointments and opens the door to the politicization of 
the judiciary.  The text contains language on the Shia 
religion and de-Ba'athification that could provoke Sunni 
Arab delegates. 
 
-- GAPS: The text does not make significant headway in 
resolving the debate over federalism,.  The text reflects 
an ongoing debate over whether the Iraq's future political 
system will require broad consensus or allow for  majority 
rule.  Proposals on Kirkuk and dual citizenship do not 
appear to reflect full consensus. The text fails to 
adequately address the role, structure and authorities of 
Iraq's judiciary.  END SUMMARY. 
 
------------------------------------ 
An Overview of a Very Rough Document 
------------------------------------ 
 
2.   (C) The following cable offers a broad overview of the 
draft constitution now under debate in the Constitution 
Committee drafting committee.  The draft document, attached 
at the end of this cable, was prepared by SCIRI leader and 
Constitution Committee Chairman Humam al-Hamudi and passed 
to Poloff in confidence.  It is more a Shia opening 
position than a consensus text.  Shia leaders appear to 
have withdrawn compromises they previously offered on 
religion and state so that they can offer them up again in 
the escalating negotiations ahead.  Furthermore, the 
document is unmistakably a very rough draft.  This cable 
aims only to cite its key achievements, defects, and gaps. 
A separate cable attempts a closer article-by-article 
analysis. 
 
------------------------ 
The Draft's Achievements 
------------------------ 
 
3.  (C) The document takes important steps toward the 
following key achievements: 
 
-- A NET OF PROTECTIONS FOR THE ACCUSED, CHILDREN, AND THE 
DISADVANTAGED: The text offers strong protections on search 
and seizure and a wide ban on torture and inhumane 
treatment.  The text places tough limits on child labor, 
though it does not ban it entirely, and it contains a flat 
prohibition on any government efforts to revoke Iraqi 
citizenship.  It also steps back from previous drafts that 
seemed to put a potentially overwhelming welfare burden on 
the state.  (See Section 2). 
 
-- AFFIRMING NATIONAL UNITY: The text goes further than the 
TAL to acknowledge and enshrine Iraq's mosaic, naming each 
Iraqi ethnic and religious minority by name.  (See Section 
1, Articles 3 and 5) 
 
-- GUARDS AGAINST MILITARISM: The military is placed firmly 
under federal control and required to "emulate (Iraq's) 
sectarian, religious and national composition." The 
National Assembly must authorize the deployment of Iraqi 
forces abroad "for defensive purposes" by two-thirds vote. 
(See Section 1, Article 14 and Section 3, Chapter 1) 
 
-- THREE-BRANCH GOVERNMENT WITH POWERFUL PARLIAMENT: The 
parliament has confirmation authority over a broad range of 
senior government officials and, perhaps problematically, 
can even prevent the prime minister from firing members of 
his own cabinet.  The National Assembly also appears to 
have veto authority over any loan or project concluded by 
the government, a provision that could reduce the 
government's flexibility to use even already-budgeted 
funds.  The text eliminates the body of the "presidency 
council" and vests all of that institution's TAL-originated 
powers in the hands of a single president. (See Section 3, 
Chapters 1 and 2) 
 
-- FINESSING KIRKUK: The draft text makes an artful effort 
to finesse the problem of Kirkuk, emphasizing the need for 
Article 58 to be implemented but not deviating from the 
outline offered in the TAL that puts off border adjustments 
and a referendum until after the constitution.   (See 
Section 6, Article 4) 
-- POSSIBLE COMPROMISE ON DUAL-CITIZENSHIP:  The document 
appears to make an effort to achieve a compromise on the 
controversial issue of dual citizenship.   In this text, 
the right to dual citizenship is granted but National 
Assembly membership and other senior positions in the 
government appear limited to those who are children of two 
Iraqi parents. (See Section 2, Article 4 and Section 3, 
Article 4) 
 
------------------- 
The Draft's Defects 
------------------- 
 
4.  (C) Even as it stakes out progress in the above areas, 
this draft, in addition to being loosely written and self- 
contradictory, raises several areas of concern: 
 
-- ISLAM OVERSHADOWS THE CONSTITUTION, INTERNATIONAL LAW: 
Islam is described as "the principal source of law" and 
Iraq's treaty obligations and guarantees on women's rights 
are all bounded by the condition that these treaties and 
rights "do not violate the rulings of Islam."  The text 
alters the appointment procedure for the Federal 
Constitutional Court in a manner that would appear to allow 
the Council of Ministers greater latitude to politicize or 
even Islamize the body.  The document contains an article 
that enshrines the "independence" of the "marja'iya," or 
religious authority, which puts a distinctly Shia cast on 
what is supposed to be a non-sectarian document. (See 
Sections 1 and 2) 
 
-- SAFEGUARDS AGAINST THEOCRACY DROPPED:  A final draft 
from sub-committee number two, obtained July 23 by Poloff, 
would have declared religious commitments essentially 
voluntary and allowed citizens to choose the personal 
status law they want applied to them, be it Sunni, Shia, 
Christian or even civil law.  The new draft omits that 
article.   This text drops this language, although the 
Iraqi Penal Code currently does proscribe any punishments 
not provided for by law. 
 
-- SAFEGUARDS, GUARANTEES ON WOMEN'S RIGHTS, REPRESENTATION 
DROPPED OR ALTERED:  The text makes its guarantees on 
women's rights subject to "rulings of the Islamic Sharia." 
The text drops the TAL provision that guaranteed women a 
quarter of the seats in the National Assembly, although 
several female members of the committee have insisted that 
they are confident this guarantee will be reinstated 
without bruising debate. (See Section 2, Article 6) 
 
-- PROVOCATIVE MEASURES FOR SUNNI ARABS: The mandate of the 
De-Ba'athification Commission, which many Sunnis hoped 
would end with the writing of a new constitution, is 
strongly reaffirmed.  The constitution also guarantees the 
rights of Iraq's "Persian" community by name (albeit in 
bracketed language), a tolerant if obscure gesture that 
Sunni Arabs are likely to consider a nod to a "fifth 
column" in their midst. (See Section 1, Article 3, and 
Section 6, Article 3.) 
 
---------------- 
The Draft's Gaps 
---------------- 
 
5.  (C) The draft fails to resolve, treats ambiguously, or 
omits several key issues: 
 
-- NO RESOLUTION ON FEDERALISM, ONLY OPTIONS:   The text 
removes the TAL's limitations on federalism, allowing an 
unlimited number of regions to unite without any approval 
from the central government.  The text makes a stab, in 
extremely loose language, at laying out the authorities of 
the regional entities.  It calls for a multiplicity of 
constitutions, one for each region, and it allows each 
regional president to represent his area abroad and enter 
into certain limited treaties with foreign countries. It 
also implies that the regions would have responsibility for 
internal security, which presumably means full control over 
the police forces, an area currently limited by the 
authority of the Interior Ministry.  Even as it lays out 
these provisions, the text records objections from other 
members.  A series of alternative provisions on revenue 
sharing present more a menu of options than an actual 
proposal, ranging from centralization to extreme 
decentralization of resource ownership and management. (See 
Section 4) 
-- 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 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 January 
2005 elections and produce a coalition government.    (See 
Section 3, Chapter 2, Article 2) 
 
-- NO SUPREMACY CLAUSE:  Unlike the TAL (see TAL Article 
3A), the draft text contains no "supremacy clause" making 
clear that the constitution is the highest law in Iraq. 
The draft proposes the establishment of a Supreme 
Constitutional Court and a Supreme Federal Court but does 
not adequately lay out the differences in the two courts 
jurisdictions.  (See Section 3, Chapter 3) 
 
7. (U) REO HILLA, REO BASRA, REO MOSUL, and REO KIRKUK, 
minimize considered. 
 
 
Khalilzad