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WikiLeaks: 2005-07-27: 05BAGHDAD3107: Part I of II: an Article-by-article Analysis of the Shia-Proposal for a Constitution

Posted: Thursday, October 27, 2011 at 08:33 PM CT


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Reference ID Created Released Classification Origin
05BAGHDAD3107 2005-07-27 11:05 2011-08-30 01:44 CONFIDENTIAL Embassy Baghdad
This record is a partial extract of the original cable.
The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 07 BAGHDAD 003107 
 
SIPDIS 
 
E.O. 12958: DECL: 07/27/2025 
TAGS: PREL PGOV KDEM IZ
SUBJECT: PART I OF II: AN ARTICLE-BY-ARTICLE ANALYSIS OF 
THE SHIA-PROPOSAL FOR A CONSTITUTION 
 
REF: A. BAGHDAD 3104 
     B. BAGHDAD 2981 
     C. BAGHDAD 3055 
 
Classified By: Political Counselor Robert Ford. 
Reasons 1.4 (B) and (D). 
 
1.  (C) SUMMARY: This cable offers a detailed analytic 
review of the draft constitution text under discussion 
in the Constitution Committee as of July 27.  (Reftel 
offers a quick overview of the contents of this draft 
text.)  The document is unmistakably a very rough 
draft.  Although ostensibly an integrated document 
pulling together work from six sub-committees, the 
draft is more a Shia opening position than a consensus 
text.  Deputy President Abdel Mehdi told the 
Ambassador July 25 that it came in response to Kurdish 
demands (reported in ref b).  The negotiating is 
underway as this cable goes out on July 27.  We are 
engaged with committee members daily and pushing for 
stronger guarantees on personal freedoms and a 
unifying vision on federalism.  Most importantly, we 
are pushing for full participation in the drafting 
process, particularly following the formal end on July 
25 of the brief Sunni Arab boycott of constitution 
committee deliberations.  Even our Shia contacts, much 
less the Kurds and Sunni Arabs, expect the Shia- 
proposed draft to evolve dramatically in the days 
ahead.  This detailed analysis is interesting because 
it shows what the Shia maximalist demands are and what 
kind of vision they see for the state, especially on 
issues such as balancing individual freedoms and 
Islam, the broad extent of regional government 
authorities.  END SUMMARY: 
 
--------------------------- 
The Context of the Document 
--------------------------- 
 
2.  (C) Constitution Committee Chairman Humam al- 
Hamudi has passed to us and distributed to committee 
members as of July 24 a draft constitution that 
integrates the work done by each sub-committee.  The 
distribution and discussion of this document 
represents the start of the second phase of the 
committee's deliberations, which up until now have 
taken place only in sub-committees.  Although the 
document purports to take all of the work done to date 
and simply merge it into one document, Hamudi and Shia 
Islamists have clearly put their own gloss on the 
text, backtracking on previous compromises and 
introducing a host of Islamic provisions that were not 
agreed on at the sub-committee level.  The document is 
unmistakably a very rough draft.  It is filled with 
imprecise and ambiguous language, parenthetical 
points, alternative options, gaps, recorded 
objections, and is at times self-contradictory. 
 
--------------------------- 
A CLOSER ANALYSIS: 
Part I, Founding Principles 
--------------------------- 
 
3.  (C) The opening articles of the constitution offer 
succinct language on several key issues and feature 
aggressive efforts by Islamists to put a religious 
stamp on the state. 
 
-- NAMING THE REPUBLIC:  Article 1 reads, "The Iraqi 
(Islamic Federal) Republic is a sovereign independent 
state.  The system of government is republican, 
democratic, unionist (federal)." 
 
-- ANALYSIS: The parenthetical inserts indicate a bold 
effort by Islamists to have Iraq named an "Islamic" 
Republic, a phrase in use in Iran.  The text also 
reveals ongoing sensitivity over the word "federalism" 
with efforts in the Arabic to use the synonym 
"unionist."  We doubt this will stick. 
 
-- ESTABLISHING AN OFFICIAL RELIGION:  Article 2 
reads, "Islam is the official religion of the state 
and the basic (in Arabic "asasi;" it can also be 
translated as principal) source of law.  No law may be 
passed that contradicts its principles and rulings 
(its agreed principles) and this constitution 
preserves the Islamic identity of the majority of the 
Iraqi people (in its Shia and Sunni majority) and 
respects all the rights of the other religions." 
 
-- ANALYSIS: Constitution Chairman Humam al-Hamudi has 
assured us on multiple occasions that he supports 
naming Islam only "a source among sources of law," and 
this language contradicts those assurances.  It is 
most likely a retraction made in preparation for the 
tough negotiations ahead.  If passed, however, this 
language would represent a dramatic departure from the 
limiting language on Islam proffered under the TAL, 
and would appear to subordinate all future laws, if 
not all provisions of the constitution, to IslamQThis 
would weaken the authority of the entire document. 
TAL Article 7 (A) and previous drafts referred to 
Islam as "a source of law" and here it has become "the 
principal" source.  TAL Article 7 (A) forbade the 
passage of laws "that contradict the universally 
agreed tenets of Islam, the principles of democracy or 
the rights cited in Chapter Two."  That language put 
Islam on a parallel level with democratic principles 
and constitutional rights.  The new text appears to 
drop those benchmarks and allows Islamic law to trump 
other sources of rights.  Article 10 may mitigate 
these concerns or merely create a contradiction and 
tension in the whole text.  It reads, "Freedoms and 
basic rights found in the constitution are guaranteed 
for all and no law may be passed that that curtails 
them." 
 
-- DEFINING THE NATION: Article 4 reads, "The Iraqi 
people are made up of two principal nationalities and 
they are Arab and Kurdish, and of essential 
nationalities and they are Turkmen, Chaldean, 
Assyrian, Syriac, Armenian, and Shabak (and Persian) 
and Yezidi and Sabean Mandean, all of which have equal 
rights and duties in citizenship." 
 
-- ANALYSIS: This article goes farther than the TAL 
ever did to meet minority demands that their presence 
be recognized by name.  In the process, however, the 
drafters show signs of creating new problems even as 
they solve an old one.  The parenthetical reference to 
Iraq's "Persian" community is already raising alarm 
for Sunni Arab delegates who see it as an effort to 
legitimize Iranian influence in Iraq. 
 
-- IRAQ AND ARABISM: Article 5 reads, "The Iraqi state 
is part of the Arab and Islamic worlds (or The Iraqi 
state is a founding member of the Arab League and 
Islamic Conference Organization)." 
 
-- ANALYSIS: This text makes an effort to address the 
issue of Iraq's Arab identity through two potential 
compromise formulas.  It may yet raise concerns among 
Kurds and others worried about legitimizing Ba'athist 
pan-Arab ideology. 
 
-- AFFIRMING IRAQ'S UNITY: Article 8 reads, "The state 
of Iraq is unified in land, people and sovereignty." 
 
-- ANALYSIS: This article will address the fears of 
Sunni Arabs who fear partition, but it stops short of 
declaring the country "indivisible." 
 
-- A FAMILY VALUES PROVISION: The language for Article 
9 is presented parenthetically and appears open to 
negotiation or elimination.  It reads, "The family is 
the foundation of society.  The state preserves the 
original Iraqi character of the family, which is based 
on religious principles and values, and morality and 
patriotism.  It guarantees the protection of 
motherhood and childhood and oversees youth and 
provides the proper circumstances for the development 
of their aptitudes and abilities." 
 
-- BROAD EFFORT TO MARGINALIZE THE BA'ATH: Article 11 
reads, "There is a ban on the ideology and practice of 
thought, under any name, that adopts (or that strives 
for or praises or paves the way for or promotes) 
racism, terrorism and the charge of apostasy, 
especially the Saddamist Ba'ath."  Later sections 
carry on the policy Qnounced in this section.  In 
addition, Section 3, Article 4 includes the TAL's 
prohibition against the candidacies for the National 
Assembly of individuals who fall subject to the de- 
Ba'athification law.  Finally, Section 6, Article 3 
makes clear that the Supreme National De- 
Ba'athification Commission shall continue its work 
until the "conclusion of its mission" or until it is 
ended by a 2/3 vote of the National Assembly.  This 
would constitutionalize a process heretofore only 
addressed in CPA orders, Governing Council and 
National Assembly decrees, and short section of the 
TAL. 
 
-- ANALYSIS: Here too we find language that may solve 
one problem while creating another.  By banning 
specifically the "Saddamist Ba'ath," this text offers 
a nod to those Ba'athists who claim that de- 
Ba'athification has been pursued too broadly because 
the party was distorted under the former regime. 
Saddamists are the criminals, not simply Ba'athists, 
they say, and this text seconds that.  However, by 
broadly banning racism under any name, the provision 
opens the door to legislation against political 
parties already on the scene, several of which mirror 
the chauvinistic pan-Arab, socialist approach of the 
Ba'ath.  Poloff previously asked Constitution 
Committee Chairman Hamudi if he saw this provision as 
banning any parties he has heard of recently, and he 
would not rule out the idea. 
 
-- COMMITTING IRAQ TO THE INTERNATIONAL COMMUNITY: 
Article 12 reads, "Iraqi internal and foreign 
relations are based on peace and cooperation with all, 
particularly with neighboring countries."  Article 13, 
further breaking with the past, reads, "The state of 
Iraq is committed to international treaties that do 
not contradict the rulings of this constitution." 
 
-- REGULATING THE MILITARY: Article 14 reads, "The 
Iraqi Armed Forces, including all services and 
security organizations, are part of the Iraqi people 
and represent them in its national, religious, and 
sectarian composition.  It is under the leadership of 
civil authority and its mission is the defense of the 
state of Iraq and it cannot intervene in political 
affairs and has no role in the transfer or power.  It 
is forbidden to use it to oppress the Iraqi people." 
 
-- ANALYSIS: This language does an important job of 
addressing concerns about a sectarian and oppressive 
military.  Other provisions continue this effort by 
banning active soldiers and intelligence officials 
from political office and by stipulating that all 
handovers of power be made peacefully. 
 
-- ENSHRINING THE MARJA'IYA: Article 15 reads, "The 
religious authority (marja'iya) has independence and 
sacred place of guidance as an exalted, patriotic and 
religious symbol." 
 
-- ANALYSIS: Rumors of this provision have already 
prompted surprise and amazement from Sunni 
participants in the constitution drafting process. 
This text, more so than any other section of the 
document, attempts to put a Shia stamp on the 
constitution without offering any parallel language 
for religious figures of other faiths. The writers of 
the draft appear well aware of this, for accompanying 
this section is a note, "Some have reservations (about 
this article)." 
 
---------------------------- 
Part II: Fundamental Rights 
and Public Freedoms 
---------------------------- 
 
4.  (C) The first several articles in this section lay 
out strong provisions for equal rights, basic 
freedoms, and equal opportunity, but a series of 
Islamic conditions on more specific rights and the 
broad provisions made in Part I throw these early 
guarantees into question. 
 
-- BASIC FREEDOMS: The first three articles provide 
for equality beforeQe law and band discrimination on 
any basis, including gender.  They guarantee the right 
to privacy, and provide for equal opportunity. 
However, Article 14, which discusses privacy in the 
context of the home and freedom of communication, 
makes the former subject to exceptions "in accordance 
with the law," and the latter subject to "legal and 
security necessity." 
 
-- DUAL CITIZENSHIP: Further provisions in Article 4 
allow Iraqis who had their citizenship revoked to 
reclaim it; this is important to Shia and Kurds.  The 
same article provides for dual citizenship, which 
Sunni Arab delegates have complained will open the 
door to excessive influence from the sizeable Iraqi 
community in Iran.  To address this concern, the 
constitution in subsequent sections limits elected 
office to those who are children of two Iraqi parents. 
Hamudi has also mentioned the idea of limiting elected 
office to those who renounce all but their Iraqi 
citizenship. 
 
-- SAFEGUARDING THREATENED RIGHTS: Further provisions 
in articles 7-9 put limits on limits on child labor 
and ban torture and illegal search and seizure.  The 
provisions ban the state from exiling its citizens 
illegally; a practice of the former regime, and ban 
state-imposed limits on movement, assuming such 
movement does not violate "public order and morals." 
 
-- ONE SAFEGUARD AGAINST ISLAMIC LAW DROPPED: The text 
does not include past provisions that forbade the 
state to prosecute crimes or impose punishments not 
recorded in the law.  The text notes a general debate 
on the subject but offers no language on the issue. 
Such a provision would prevent the state from using 
religious sources as a free-form legal guidance, 
delineating and prosecuting crimes in accordance with 
interpretation or provisions.  However, the Iraqi 
criminal code already includes such a prohibition. 
 
-- LIBERAL PROVISION ON PERSONAL STATUS DROPPED: The 
current draft text lacks a personal status provision 
that Sub-Committee Secretary Kameran Saeed touted on 
July 25 to Poloff as one of the strongest liberal 
provisions.  That provision had made it clear that 
religious obligations are voluntary commitments and 
allowed all citizens the right to choose the personal 
status law they saw appropriate to their identity, be 
it Christian, Sunni, Shia, or secular.  The provision, 
now omitted, read, "The followers of every religion or 
sect are free in their commitment in personal status 
according to their religious and sectarian beliefs, 
and (they are free) in the practice of their religious 
rites in their places of worship and holy sites.  All 
of this will be done in the limits deemed permissible 
to them and in accordance with the constitution and 
the law.  It is not permissible for any faith or 
sectarian action to be used as a cover for civil 
strife or inciting problems in the society."  It is 
likely that supporters of such a provision will try 
again to have it inserted. 
 
-- MANDATORY NATIONAL SERVICE DROPPED: The integrated 
draft text drops a clause in the final sub-committee 
proposal that reads, "Every Iraqi must defend the 
nation and preserve its unity unless his service is 
regulated by law and equivalent to volunteer work." 
 
-- CLEAR ISLAMIC RESTRICTIONS ON WOMEN'S RIGHTS: 
Article 6 reads, "The state guarantees women's basic 
rights and her equality with men in all areas in 
accordance with the rulings of Islamic Sharia, and 
(the state) assists her in reconciling her duties 
toward the family and her work in the society."  As 
reported ref c, this language offers room for abuse 
and limitation of women's rights, and introduces a 
tension with the unlimited guarantees offered in the 
first articles.  It adds an Islamic restriction that 
the sub-committee charged with drafting this section 
had never recommended.  The Sub-Committee Secretary, 
Yezidi leader Kameran Khairi Saeed, has passed to 
Poloff a "final" copy of his committee's work that has 
no Islamic reference, offering simply, "The state 
guarantees women's basic rights and her equality with 
men in all areas in accordance with the law."  The 
added language on state "assistance" in reconciling a 
women's work and family obligations also appears to 
open the door to government intervention in personal 
life despite other guarantees of privacy. 
 
-- FREEDOM OF EXPRESSION AND RELIGION GUARANTEED BUT 
BOUNDED BY "MORALS": Articles 11 and 12 guarantee 
freedom of expression and religion while placing an 
identical "morals" limitation on both.  The wording of 
the provisions at times implies that these rights are 
guaranteed only in the event that subsequent 
legislation does not take them away.  The final 
proposed document on rights and freedoms from the 
second sub-commQtee did not include such a limitation 
and it appears to have been added during the process 
of integrating the texts.  Article 11 reads, "Every 
individual has the right to express an opinion through 
any means guaranteed by law provided it does not 
violate public order and morals.  And the state 
guarantees:  A. Freedom of press and printing and 
advertising and assembly and peaceful demonstration. 
B. Founding and joining associations and political 
parties and professional syndicates and unions." 
Similarly, Article 12 reads, "Freedom of religion and 
belief and the practice of religious rites are 
guaranteed in accordance with the law provided it does 
not violate public order and morals."  Making freedoms 
dependent on "public morals" opens the door to 
legislative and judicial restrictions on rights. 
 
-- POTENTIAL FOR EX POST FACTO LAWS: Article 14 (I) 
appears to permit ex post facto criminal laws.  The 
provision states, "Criminal laws shall not have a 
retroactive effect unless the law stipulates 
otherwise." 
 
-- BAN ON MILITIAS OR SECRET ORGANIZATIONS: Article 16 
B will reassure some Sunni Arabs with a clear ban on 
militia activity even as victims of the former regime 
look to it as a bulwark against the Ba'ath, which 
arose as a secret movement.  It reads, "The 
establishment, secretly or openly, of civil 
institutions that have an antagonistic character, or 
that damage the society, or that have a military 
character, or of an armed militia, is forbidden." 
 
-- USING ISLAM TO BOUND INTERNATIONAL TREATY 
OBLIGATIONS: Article 17 of this section puts a Islamic 
condition on all Iraqi treaty obligations that throws 
its commitment to international obligations into 
question.  It reads, "In addition to all the rights 
mentioned in this constitution, an Iraqi enjoys all 
rights stipulated in international treaties that Iraq 
is a party to insofar as they do not contradict with 
the principles of Islam."  This qualification is 
particularly worrisome when one considers that some 
radical Islamists argue that the Sharia specifically 
supports weapons of mass destruction and terrorism. 
 
-- LIMITING STATE WELFARE OBLIGATIONS:  This draft 
text takes a step back from earlier drafts that risked 
putting significant welfare obligations on the 
government.  Under Article 19, state resources limit 
state obligations as follows, "All Iraqis have the 
right to education and health care and social security 
and the availability of work opportunities and the 
state must guarantee this within the limits of its 
resources."  A provision in a preliminary draft that 
would have obligated the state to pay pensions and 
unemployment insurance was dropped entirely. 
 
------------------------- 
Part III: Institutions 
of the Federal Government 
------------------------- 
 
5.  (C) The third chapter of the constitution outlines 
the structure of government while introducing a number 
of small but potentially significant changes to the 
system.  Echoing the TAL, it provides for three 
branches of government and the separation of Qwers. 
While the chapter is relatively complete, the text 
contains some internally inconsistent discussion on 
relations between the three branches (including 
appointment of Higher Juridical Council members). 
Later drafts presumably will rectify this. 
 
6.  (C) LEGISLATIVE AUTHORITIES:  The draft document 
calls for a bicameral legislature consisting of a 
National Assembly and a "Council of Provinces and 
Governorates."  The text that follows, however, only 
describes the authorities of the National Assembly, 
leaving doubts about even the existence of the 
"Council of Provinces and Governorates."  The draft 
also does not address the issue of Iraq's electoral 
law or the shape of the next elections, a matter that 
some have argued is not constitutional in nature. 
 
-- SEAT DISTRIBUTION OFFERS NO PROVISION FOR WOMEN: 
This text establishes a ratio of one representative 
for every 100,000 people, and a side-note indicates 
they expect to arrive at 275 seats. The text notes a 
recommendation that 5 extra seats be set aside for 
minorities and filled by the provinces and 
governorates.  The text contains no provision ensuring 
one-quarter representation for women as found in TAL 
Article 30 (C). 
 
-- MEMBERSHIP REQUIREMENTS KEEP HALF-IRAQI'S AND 
SOLDIERS OUT: The Assembly membership requirements 
stipulate that all members must be born of two Iraqi 
parents, a provision that may assuage fears by Sunni 
Arabs that some representatives will have dual 
loyalties.  The text adheres to the requirements laid 
out in the TAL with a few interesting additions that 
broaden the ban on former regime figures.  It states, 
similar to the TAL, that candidates may not be 
"covered by de-Ba'athification law" or have been 
members of the former "apparatus of oppression."  It 
adds, however, nominees must also "not be a member of 
the armed forces or security services at the time of 
nomination."  These standards also apply to the prime 
minister. 
 
-- SIMPLE AND ABSOLUTE MAJORITIES FOR MOST KEY 
DECISIONS: The draft sets a four-year election cycle 
and two 6-month sessions for the assembly per yeaQ 
Quorum is set at an absolute majority of members, a 
step that could favor a future successful Shia 
alliance.  A simple majority, unless specified 
otherwise, would be required for all decisions.  The 
draft text shows an ongoing debate over whether the 
assembly would elect the president and vice presidents 
by absolute majority or two-thirds majority.  The 
National Assembly would confirm the prime minister and 
cabinet by absolute majority.  The document continues, 
as per the TAL, to allow the assembly to ratify 
treaties by a simple majority vote.  The draft also 
maintains the call for an absolute majority vote in 
the confirmation of the prime minister and his 
cabinet. 
 
-- 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 
National Assembly, according to this Shia-proposed 
text, would also have the ability to confirm the prime 
minister and cabinet by absolute majority. Choosing 
the president by absolute majority would significantly 
diminish the need for future Iraqi governments to be 
based on broad coalitions spanning across ethnic/ 
religious groups.  A majority in parliament (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 elections.) 
 
-- STRONG CONTROL OF ARMED FORCES: The Assembly must 
authorize the deployment of Iraqi armed forces abroad 
by a two-thirds vote.  An absolute majority, however, 
can approve the deployment of the Iraqi armed forces 
for a UN mission.  The assembly must approve a 
declaration of war or announcement of a state of 
emergency by a two-thirds vote.  The latter is limited 
to one-month periods, subject to renewal. 
 
-- POTENTIAL TO MICROMANAGE GOVERNMENT ECONOMIC 
POLICY: Article 22 appears to give the National 
Assembly significant authority to micromanage the 
economic development work of the government within 
approved budgetary outlays by granting it the right to 
"consider" any project or loan concluded by the Iraqi 
government that would require expenditure of Iraqi 
funds.  (Comment:  given the enormous abuses of Iraqi 
oil wealth in the Saddam regime, such a limitation is 
understandable but problematic.  End Comment.) 
 
-- EXTENSIVE SECURITY AND JUDICIAL CONFIRMATION 
POWERS:  The assembly must approve a wide range of 
appointments by the prime minister, including the 
chiefs of staff of the armed forces, director of the 
intelligence service and members of the national 
security council.  Acting by absolute majority, the 
assembly would also have to confirm the council of 
ministers' appointments to the Higher Juridical 
Council.  A two-thirds majority would be required to 
approve judicial appointments by the prime minister to 
the Constitutional Court.  The assembly would also be 
required to approve the Higher Juridical Council's 
nominees for the justices of the court of cassation 
and for general prosecutor. 
 
-- AN ARRAY OF NO CONFIDENCE VOTES:  The assembly 
would be able to withdraw confidence in the prime 
minister by an absolute majority provided such a vote 
is called by either one-fifth of the members; the 
president, and then only under "justified essential 
reasons"; or in the event that the prime minister has 
been convicted by the Supreme Court (presumably of 
criminal offense, though the supreme court is not a 
criminal court).  The National Assembly would have the 
right to withdraw confidence in individual ministers 
by absolute majority in the event of an "absence of 
capability or integrity."  (A separate, apparently 
contradictory article calls for a two-thirds majority 
on such no confidence votes.) The assembly may 
dissolve itself by a two-thirds vote, which would 
force elections within three months. 
 
-- STANDARDS FOR SUCCESSION: If the president steps 
down, his deputy replaces him and the assembly must 
elect a new president within one month, according to 
the draft.  If the Council of Ministers receives a no- 
confidence vote, they may finish out their term for 
one month.  If the prime minister steps down, the 
deputy prime minister replaces him or her for at most 
one month. 
 
Khalilzad

 


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