US embassy cable - 05BAGHDAD4223

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