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Home Project Analysis GJPI Final Report Objective 1: Constitutional Review and Priority Legislation

Objective 1: Constitutional Review and Priority Legislation

Accomplishing Objective #1


Constitutional Review and Priority Legislation Deliverables
The first objective of the Grant was to strengthen the knowledge base and capacity of GOI lawmakers to draft, enact, and implement effective constitutional amendments and priority legislation on subjects determined by CLA. In accomplishing Objective #1, the Project provided technical assistance and advice to GOI lawmakers and law-making institutions in their review of and effort to amend the 2005 Iraqi Constitution, including the possible creation of a Federation Council called for in the Constitution. The Project also analyzed numerous proposed laws and compared them with legislation adopted in other countries and with international standards and best practices.

Key performance indicators in the Grant for accomplishing Objective #1 included providing Project analyses and guidance on the following:

Constitutional amendments and laws that reflect international best practices of parliamentary governance; Modern legislative theory and methodology; Respect for the rule of law, human rights, and constitutional supremacy; Addressing the pervasive issues of federalism and Islamic law in the context of other major issues; Basing legislation on sound fiscal and policy research; and Reflecting consensus and accommodation across the diverse components of Iraqi society.

The CLA Grant Officer Representative informed the Project on January 5, 2010 that activities in Baghdad under Objective #1 were considered finalized and that Objective #1‘s deliverables were considered met. At that time, CLA directed that no additional activities in Iraq related to Objective #1 should be carried out by the Project.

The Project accomplished this Objective through the following key deliverables previously provided to USDOS:


Federalism
The Project‘s advisory work on federalism focused on the question of the structure and composition of a Federation Council, a Senate-like legislative chamber called for by Article 65 of the Iraqi Constitution, which has not yet been established by necessary implementing legislation.

Article 65 provides that:

    A legislative council shall be established named the Federation Council, to include representatives from the regions and the governorates that are not organized into a region. A law, enacted by a two-thirds majority of the members of the Council of Representatives, shall regulate the formation of the Federation Council, its membership conditions, its competencies, and all that is connected with it.

The Project‘s Dean Hiram Chodosh and Professor Chibli Mallat held meetings in Baghdad in October 2008 and January 2009 with leaders in the GOI executive branch, including the Prime Minister and his senior staff, and the members of the Presidency Council (PC) and their legal advisers. They also met at this time with leaders in the COR, including members of the COR‘s CRC. One topic of these meetings was the nature and future of federalism in Iraq, including the creation of a Federation Council.

A thorough analysis and initial report about an Iraqi Federation Council were completed in late January 2009 and discussed at a Project workshop in Salt Lake City. The analysis concluded that a Federation Council is crucial to the development of federalism in Iraq because it will operate as the principal mechanism for the voice of the regions within the central government. Professor Mallat prepared a white paper that addressed the most important issues needed to be resolved by the Iraqi legislature in creating a Federation Council. The Mallat white paper is attached as Exhibit 1.

At a meeting of the International Legislative Roundtable at the British Embassy Baghdad, on March 11, 2009, Professor Mallat made a presentation on federalism. He emphasized that federalism is the key to the future of Iraq, even though the meaning of federalism for Iraqis is new and subject to debate.

On March 15, 2009, Professor Mallat, Professor James Holbrook, and Barrister Andrew Allen met with representatives of the United Nations Assistance Mission Iraq (UNAMI) to discuss federalism as The Future of Iraq: Unity within Diversity. Professor Mallat reported on his trip to Najaf and the commitment by the esteemed Iraqi cleric, Bahr al-Ulm, to write about federalism from the point of view of shari’a law.

The Project prepared and circulated for discussion an initial draft of Frequently Asked Questions (FAQ) about federalism in Iraq. A copy of the initial federalism FAQ is attached as Exhibit 2. The Project later finalized the federalism FAQ memorandum, a copy of which is attached as Exhibit 10.

On May 16, 2009, Professor Mallat and Mr. Allen met with President Jalal Talabani to discuss federalism in the Iraqi Constitution, the role of the regions in the management and development of oil fields, the Presidency Council, and the structure and role of a Federation Council.

In early July 2009, Professor Mallat met with COR Deputy Speaker Sheikh Khaled Atiyyeh concerning Shi‘i concerns about the structure of the Presidency Council.

Professors Mallat and Hamoudi prepared and provided to CLA a memorandum entitled ―A Short Summary of the Global Justice Project: Iraq‘s Work on Federalism. A copy of this memorandum is attached as Exhibit 23.

On October 20-21, 2009, Professor Hamoudi and other members of an American delegation participated in a two-day trip to Najaf to meet with important religious officials to develop relationships and knowledge between the Najaf religious seminaries (known collectively as the Hawza) and American universities. The trip provided Professor Hamoudi with an opportunity to discuss the role of religion in legislation, federalism and constitutionalism in the Iraqi state, and the Hawza‘s relationships thereto. The delegation met with Grand Ayatollahs Bashir Al-Najafi, Muhammad al-Fayyadh, and Muhammad Saeed Al Hakim. Through his own personal contacts, Professor Hamoudi also was able to meet with Grand Ayatollah Sayyid Sistani.

On December 22, 2009, Professor Hamoudi presented workshops on federalism for the Presidency Council. A copy of the PowerPoint presentation (in Arabic) for this workshop is attached as Exhibit 33.


Analysis of Judicial Framework Legislation
The Project prepared a memorandum evaluating the Higher Judicial Council draft law in connection with the Federal Supreme Court draft law, and relationships between those two tribunals and the Court of Cassation, pointing out structural issues in the drafts. A copy of the judicial framework legislation memorandum is attached as Exhibit 3.


Analysis of the Counterterrorism Bureau Law
The Project prepared an evaluation of the proposed counterterrorism bureau law. A copy of that memorandum is attached as Exhibit 6.


Analysis of the Trafficking in Persons Law
The Project translated from Arabic to English the Iraqi draft law on trafficking in persons, and prepared a memorandum analyzing its substantive issues. A copy of that memorandum is attached as Exhibit 4.


Analysis of the Foreign Investment Law
In March 2009, Professor Holbrook met with Dr. Safa Al-Safi, the Iraqi Minister of State for Parliamentary Affairs. Dr. Safa gave Professor Holbrook a draft statute (in Arabic), which would permit foreign ownership of real estate for investment purposes, so long as foreign-owned land never exceeded 3% of all Iraqi territory. Dr. Safa asked the Project to review the statute and offer comments. The Project translated the draft, and the English translation was circulated for review and comment. Professor Holbrook and Professor Haider Ala Hamoudi met with GOI lawyers, Dr. Mutaz and Dr. Othman, of the Legal Committee of the Council of Ministers, to review suggested changes and discuss policy issues that were left unanswered by the draft law.


Analysis of the Need for a New International Commercial Arbitration System
Dr. Safa also requested an analysis of the international commercial arbitration legislation that, according to Dr. Safa, would address the concerns of foreign investors regarding dispute resolution in Iraqi courts and encourage foreign investment. Information was provided on Iraq‘s current investment framework, including its deficiencies. Iraq has a foreign investment statute which contains arbitration provisions, but Iraq has not enacted the UNCITRAL Model International Commercial Arbitration Act (UNCITRAL Model Act) nor ratified the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Professor Holbrook provided Dr. Safa with copies in Arabic and English of the UNCITRAL Model Act and the New York Convention.

On April 14, 2009, Professors Hamoudi and Holbrook met with Dr. Othman of the Legal Committee of the Council of Ministers to discuss best practices for international commercial arbitration in Iraq.

On April 30, 2009, Professor Holbrook and Project translator, Ali Al-Rikabi, met with Judge Ghazi (head of the State Shura Council) and then with Dr. Abbas Marzouk Flayeh Al-Obaidi (a professor at the Baghdad University College of Law who is chair of the Shura Council‘s international arbitration law drafting committee). They discussed several bills drafted to attempt to encourage foreign investment and promote economic development in Iraq. Dr. Abbas said the Shura Council‘s drafting committee is contemplating an arbitration statute that would create an international commercial arbitration center in Iraq, similar to ones in Egypt, Jordan, and the Gulf states. Professor Holbrook advised that this will not increase the confidence of international investors who are familiar with arbitration administered in Paris, London, and Brussels. He encouraged the drafting committee to use the UNCITRAL Model Act as a template for writing the Iraqi statute on international commercial arbitration, but this appears unlikely. Professor Holbrook recommended that Iraq ratify the New York Convention, but this also appears unlikely. Professor Holbrook recommended that there should be a specialized court staffed by judges familiar with foreign investment and having relevant expertise to decide disputes about arbitration and enforce foreign arbitral awards. Dr. Abbas said that such a court would not be created in the foreseeable future.

On May 17, 2009, Professor Holbrook and Project translator Ali Al-Rikabi attended a conference on attracting foreign investment in Iraq at the Al-Rashid Hotel in Baghdad. During the morning break, Professor Holbrook and Ali Al-Rikabi talked with Judge Ghazi of the State Shura Council about international commercial arbitration and discussed the Project‘s recommendations that Iraq could improve foreign investor confidence in international commercial dispute resolution by doing four things: enacting the UNCITRAL Model Act; ratifying the New York Convention; including foreign-administered (e.g., by the International Chamber of Commerce in Paris) arbitration agreements in foreign investment and development contracts and invoking the UNCITRAL Rules as applicable; and empowering a specialized Iraqi court with arbitration expertise to stay litigation, compel arbitration, and enforce foreign arbitral awards.

Judge Ghazi said that the Shura Council had approved the New York Convention years ago, but a long succession of Iraqi governments refused to ratify it, and the Prime Minister‘s current legal adviser is not in favor of ratification. Afterward, Professor Holbrook and Ali Al-Rikabi met in a breakout session on amendments to the investment legal framework and dispute resolution with about a dozen Iraqis (at least half of whom were law professors or lawyers). Ali Al-Rakabi made the arbitration presentation outlined above to the group in Arabic.


Assistance to the Constitutional Review Committee
On April 14, 2009, the Project‘s Professor Haider Ala Hamoudi, Ms. Jaye Sitton, and Mr. Jeff Fischer met with Sheikh Humam Hamoudi and Ali Fadhil Muhsen of the COR‘s CRC. Sheikh Humam, who is the chairman of the COR‘s CRC, asked the Project to assist the CRC in its review of the Constitution. On April 15, 2009, Sheikh Humam requested that Project personnel meet with former Prime Minister Ibrahim Al-Jaafari to get his views about the constitutional revision process in Iraq.

On April 16, 2009, Professor Hamoudi, Ms. Sitton, and Mr. Fischer met with Ayad Samara‘i, who is Deputy Head of the CRC. Dr. Ayad described the status of the CRC‘s work in some detail, said that a CRC report had been prepared. He requested the Project to provide a detailed technical analysis of the report as soon as possible.

On April 18, 2009, Professors Hamoudi and James Holbrook, Ambassador Battle, Muayyad Al-Chalabi, and Ali Al-Rikabi met with former Prime Minister of Iraq, Dr. Ibrahim Al-Jaafari, and with Dr. Abdul Aziz Al-Tamimi. Dr. Al-Jaafari described the flaws and gaps in the Iraqi Constitution that must be addressed by the CRC and the COR.

On May 5, 2009, Professor Mallat met with Dr. Saleem Jibouri who is one of the three leading members of the COR‘s CRC. Dr. Saleem formally requested the Project to help the CRC complete its drafts of amendments that the CRC had been working on over the past three years. Dr. Saleem invited Project personnel to sit in on the CRC drafting subcommittee‘s meetings, analyze its work, and present the CRC with a number of short, strategic papers on issues where proposed constitutional amendments are still controversial.

On May 6, 2009, Dean Chodosh and Professor Mallat met with Sheikh Humam Hamoudi, Chairman of the CRC, and Ali Fadhil, Secretary of the CRC. Sheikh Humam requested the Project‘s input on: (1) the articles of the Constitution that were generally agreed to, but which were incomplete because of a political deadlock: and (2) areas of the Constitution where there is little agreement, like federal-regional powers, and oil and gas issues. He asked the Project to look at the entire revised constitutional text and propose changes wherever a better result could be reached. Professor Mallat said that the Project would immediately draft and present papers on:

  • The Federation Council Judicial power and structure The independent commissions Powers of the Presidency and Prime Minister
  • Civilian control over security forces
  • Constitutional provisions affecting election laws
  • Constitutional provisions affecting oil and gas laws
  • The overall federal governmental structure

Sheikh Humam also requested a copy in Arabic of the chapter in Professor Mallat‘s book on the Iraq Constitution published by Aspen Press.

The Project immediately began creating an English translation of the CRC‘s report. Project personnel also began working on the set of CRC deliverables, including: a brief introductory paper; a constitutional guide, a comprehensive text of the Constitution with the CRC‘s proposed amendments and the Project‘s comments and proposals; a series of short papers on the key issues identified by CRC leadership (set forth above); and a series of short papers on new ideas that might resolve remaining differences.

On May 8, 2009, Dean Chodosh and Professor Mallat analyzed the amendments to the Iraqi Constitution proposed by the CRC and created templates for the Project‘s detailed analyses of specific amendments. Project personnel spent the following days drafting, revising, finalizing, translating into Arabic, and then revising again both the English and Arabic texts of five short papers to be presented to the CRC.

Beginning on May 12, 2009 and continuing through the end of June, Project personnel met with the CRC drafting subcommittee every time the subcommittee met. Project personnel created detailed minutes of each of the subcommittee‘s meetings, which were provided to CLA. Because these minutes are regarded as sensitive, they are not attached to this Report.

On May 12, 2009, Professor Mallat met with the CRC drafting subcommittee and presented four of the five short papers prepared by the Project which had been translated into Arabic. Because these papers are regarded as sensitive, they are not attached to this Report. Professor Mallat also met with Deputy Speaker Sheikh Khaled Atiyyeh to discuss the Project‘s work with the CRC drafting subcommittee.

On May 13, 2009, Professor Mallat met with the CRC drafting subcommittee. After the meeting, he met with Fuad Masum who arranged for him to meet with President Jalal Talabani in Sulemaniye. He then met with Secretary Hassan al-Yassari to discuss the proposed constitutional amendments. He also met with Dr. Saleh Mutlaq to discuss the Project‘s involvement in the CRC process.

On May 14, 2009, Professor Mallat met with the CRC drafting subcommittee to whom he provided two cross-indices in Arabic: one which showed where the existing provisions of the Iraqi Constitution are found in the CRC‘s proposed amendments; and the other which showed where the CRC‘s proposed amendments are found in the existing Constitution. The members of the CRC subcommittee were very appreciative of these indices because the Articles no longer had the same numbers in the two CRC versions. These cross-indices are regarded as sensitive and, therefore, are not attached to this Report.

On May 15, 2009, Professor Mallat and Andrew Allen met with President Jalal Talabani, Deputy Prime Minister Barham Saleh, Kosret Rassoul, Fuad Masum, and Fakhri Karim (publisher and editor-in-chief of the Al-Mada newspaper) to discuss the Project‘s work on the CRC constitutional amendment process.

On June 11, 2009, Professor Hamoudi met with numerous people in the U.S. Embassy‘s Political and Rule of Law Sections and made a detailed presentation about the CRC‘s amendment drafting process.

On June 19, 2009, at CLA‘s request, Professor Hamoudi and Sara Burhan Abdullah drafted a cable to the Political Section at the U.S. Embassy concerning the CRC amendment drafting process. Because this cable draft is regarded as sensitive, it is not attached to this Report.

On September 21, 2009, Professor Hamoudi prepared and submitted to CLA an English translation of amendments to the Iraqi Constitution as recommended by the CRC, with over a hundred annotations by Professor Hamoudi indicating the many specific changes made by the CRC over the nearly five-month period during which the CRC met almost daily, with Professor Mallat or Professor Hamoudi attending every meeting. Because these amendments are regarded as sensitive, they are not attached to this Report.

Professors Hamoudi and Mallat wrote an op ed article entitled ―Iraq at a crossroads: Constitutional Review Committee fills in crucial gaps. Domestic, regional turmoil stand in eerie contrast with equanimity, wisdom displayed by CRC, which was published in The Daily Star on November 19, 2009. A copy of this op ed is attached as Exhibit 27.

On December 8, 2009,Professor Hamoudi presented a three-hour long workshop at the Presidency Council on unimplemented articles in the Iraqi Constitution of 2005. A copy of the PowerPoint presentation (in Arabic) for that workshop is attached as Exhibit 32.


Analysis of the Hydrocarbon Laws
On May 28, 2009, Professor Hamoudi analyzed the multiple versions of the oil and gas (hydrocarbon) law (HCL) from 2007 and 2008 and reviewed the commentaries provided by Project HCL experts. On July 14, 2009, Professor Hamoudi prepared for and submitted to CLA a legal analysis of and commentary about Iraq‘s HCL drafts pending before the COR. A copy of the analysis of the hydrocarbon bill is attached as Exhibit 13.

The Project‘s HCL experts noted that none of the three HCL drafts made specific mention of the most common type of arrangement with a foreign oil company, i.e., a production sharing agreement. The Project recommended that the HCL drafts should permit production sharing agreements as well as other common HCL arrangements, such as service agreements and joint ventures. The Project‘s HCL experts critiqued the division of authority in the HCL drafts between the different Iraqi entities involved, including the Minister of Oil, the Federal Oil and Gas Council, the Iraqi national oil companies, and regional authorities. The Project‘s HCL experts critiqued the lack of specificity concerning division of oil revenues among the Kurds, the central government, and the regions. The Project‘s HCL experts recommended that the HCL drafts be revised to provide that disputes between GOI entities and foreign oil companies be submitted to international commercial arbitration and not to Iraqi litigation or in-country arbitration. The Project‘s HCL experts were critical of the lack of drafting quality in the proposed HCL drafts. A copy of the HCL memorandum is attached as Exhibit 15.


Analysis of the Competition Law
On July 14, 2009, Professor Hamoudi prepared for and submitted to CLA a legal analysis of Iraq‘s draft competition law. Professor Hamoudi noted that the term ―monopoly was not sufficiently defined in the competition law. He discussed the extent to which wholly owned companies of the Ministries of Industry and Trade are, or should be, exempt from Iraq‘s competition laws. He critiqued the scope of authority given in the draft law to the proposed Iraqi antitrust commission. He also critiqued the scope of prohibitions contained in the draft law. A copy of the competition law memorandum is attached as Exhibit 16.


Analysis of the KRG’s Law of Governorates
On July 18, 2009, Professor Hamoudi prepared for and submitted to CLA a legal analysis of and commentary about the KRG‘s Law of Governorates. The first part of the memorandum critiques issues relative to attempted decentralization, and the second part discusses other governance issues in the law. A copy of the KRG governorates law memorandum is attached as Exhibit 17.


Analysis of the Emergency Powers Law
The Project analyzed the proposed Emergency Powers law, identified appropriate best practices for Iraq, conducted interviews at the U.S. Embassy and with the COR Speaker‘s advisors to determine related challenges, identified Spain and Canada as useful comparative models, translated Spanish legislation to English and then translated this to Arabic. The Project also translated the Canadian emergency powers legislation to Arabic to provide comparative information. A copy of the emergency powers law memorandum is attached as Exhibit 21.


Analysis of the Capital City Law
The Project prepared a detailed memorandum comparing how capital cities are set up in a variety of federal and non-federal jurisdictions, and prepared a proposal for the Capital City law in Iraq. A copy of the capital city law memorandum is attached as Exhibit 9.


Conference for the Office of Provinces and Regions
On April 15, 2009, Professors Hamoudi and Holbrook met with Dr. Faruq Abdullah and Dr. Amar of the Office of Provinces and Regions (OPR). Dr. Faruq requested the Project‘s help with training recently elected provincial leaders, who are for the most part very inexperienced with the process of government. Dr. Faruq asked the Project to have an elections expert and Professor Hamoudi meet with his legal staff to discuss issues concerning the Constitution, the provincial government law, the elections law, and amendments proposed to the Constitution. From these discussions, the Project agreed to hold a conference for legal specialists within the elected provincial governments.

Professor Hamoudi and Sara Burhan Abdullah planned the conference for OPR, which was held on October 25, 2009. Professor Hamoudi developed an agenda, identified speakers, and prepared a talk for the conference involving a series of legal issues regarding decentralization and provincial powers. The conference was attended by representatives from two-thirds of the provinces not organized into a region. Professor Hamoudi prepared a detailed report of the workshop which is attached as Exhibit 26.


Analysis of the Diyala/Kermanshah Memorandum of Understanding
On September 24, 2009, Professor Hamoudi prepared for and submitted to CLA a legal analysis of the Memorandum of Understanding (MOU) concluded between the Governorate of Diyala in Iraq and the Governorate of Kermanshah in Iran concerning legal issues about federalism and provincial powers. Professor Hamoudi concluded that much of the MOU is unconstitutional and interferes directly with the power of the Iraqi central government over such matters as foreign affairs, national security, cross-border trade, customs, and the mails, although some of the areas of Diyala/Kermanshah cooperation in the MOU are benign and probably are not unconstitutional. A copy of the Diyala/Kermanshah memorandum is attached as Exhibit 20.


Comparison of the Law of Governorates Not Incorporated into a Region and Other Laws
The Project prepared and provided to CLA a research paper, entitled ―Relationship between the Law of Governorates Not Incorporated into a Region and Other Laws, concerning laws that contradict or restrict the 2008 law of governorates not incorporated into a region. A copy of this research paper is attached at Exhibit 28.


Memorandum on Oil Ministry Refusal to Remove a Director General
On December 6, 2009, Professor Hamoudi provided CLA with a memorandum analyzing the Iraqi Oil Minister‘s legal justifications for refusing to remove a Director General in Diyala Province. A copy of this memorandum is attached at Exhibit 29.


Memorandum on the Authority of Provincial Councils to Remove Officials
On December 6, 2009, Professor Hamoudi provided CLA with an analysis of the ability of the Provincial Councils to remove officials pursuant to the Provincial Powers Law (PPL), which involved an analysis of the term ―senior official under the PPL. A copy of this memorandum is attached at Exhibit 30.


Analysis of Federal Supreme Court Case No. 38
On December 6, 2009, Professor Hamoudi provided CLA with an analysis of Federal Supreme Court Case No. 38 of 2009. A copy of this memorandum is attached at Exhibit 31.