The entire text of the draft constitution for Iraq has been made available in a translation by the AP.

I have just taken a careful look at it, and compared it to the excerpted text that was available for the August 22 draft, and to the Transitional Administrative Law. It is helpful that AP indicated provisions that had been added in the new draft or changed substantially.

My overall view is that it has been improved in some ways, mainly in respect to the definition of federalism, but still provides few other institutional guarantees for minorities other than the Kurds.

It is more clearly federal, in that the provision that I had been worried about earlier that appeared to grant federal law (and not just the constitution) supremacy over regional constitutions has been removed. The most relevant provision here would seem to be Article 13, para 2:

No law that contradicts this constitution shall be passed; any passage in the regional constitutions and any other legal passages that contradict this constitution shall be considered null.

(Previously the draft had referred to a “central law” as superior to a regional constitution.)

The list of exclusive authorities of the central government is short, and a lot of areas (including customs) are listed as joint responsibilities of the center and regions. This implies a high degree of decentralization, but not a ‘confederation’ or ‘loose federalism’ (whatever that might mean), as has been claimed in some accounts.

The Kurdistan region is explicitly defined as already existing (as it is in the TAL but was not in the Aug. 22 draft).

It clarifies that provinces enjoy autonomy even if they do not join a region.

It prohibits the inclusion of Baghdad in any region. This is important, as there was a real potential for conflict here, given that Baghdad sits at the junction of the Sunni and Shiite regions, and the previous draft had no provisions on the status of Baghdad.

On the other hand, it does not prohibit Kirkuk from becoming part of a region (guess which one!). And the provisions on the distribution of oil revenue are pretty much the same as before, which is obviously unaccpetable to Sunnis who will not form the majority group in any region in which there are known oil reserves.

Then there is a long list of provisions at the end that essentially are tacked on and that amend what precedes it. This looks like a rush job here, in that they are pretty fundamental, but they did not take the time to back and change the original provisions.

For instance, the presidency is redefined in Article 135 (within the ‘transitional’ portion of the draft) as a three-person council, rather than as a single individual. This is really significant, in that it continues the provisions of the TAL in this regard.

The presidency council is elected on a ticket by 2/3 of the Council of Representatives (CoR), and has veto power over legislation, subject to override by 3/5 of the CoR.

[UPDATE and CORECTION, Sept. 10, 2005: Any member of the council may veto a bill; it is the approval, not the veto, that must be exercised unanimously. Here was my original wording: This veto must be exercised unanimously, however, so it does not provide a means for a representative of one community to block a bill passed by a CoR majority that is representative of others. (It would be more consensual if it had such a provision.) WELL, YES IT DOES; END OF CORECTION.]

The cabinet is dependent exclusively on the majority in the CoR and the presidency has no discretion in choosing the prime minister (unlike under the TAL).

These provisions on the presidency council and the cabinet together mean that the presidency is pretty weak, but not powerless. [It looks more powerful now, on Sept. 10, than it did when I wrote this post initially.] Ensuring that it is collective is a fairly significant concession by the dominant (Shiite) United Iraqi Alliance, though not a huge concession, given that the prime minister and cabinet are explicitly defined (Art. 76) as the more powerful part of the executive branch.

There is an upper house, called Council of the Union, but its powers are not set out. All the draft says is that the CoU is made up representatives of the regions and provinces that are not part of a region. But everything else about it is to be determined by a law passed by 2/3 of the CoU. So, it is likely that bicameralism will be pretty weak. This is unusual, but not unheard of, in federal systems around the world.

The ratification provision still does not explicitly mention that the constitution will be vetoed in the event that three or more provinces vote ‘no’ in the “universal referendum” by 2/3 or more. There may be an understanding that the TAL provision in this regard is still binding, but I still think that two thirds of the Assembly could decide to ignore such provincial ‘no’ votes, should they occur, and should it want to implement the constitution anyway. (The UIA and the Kurdish list and various allies could very well get 2/3 in the planned December Assembly elections even if Sunnis participate fully.)

All in all, there are some improvements and clarifications that restrain the national majority a bit more than in the Aug. 22 draft, but it is still a fairly majoritarian constitution. In most areas, the Shiites will get what they want if they are unified.

I would conclude that this is a clearly federal constitution (I did not think the previous draft qualified), rather than either unitary or confederal. However, it is still overly majoritarian at the federal level for such a divided society, even if notably less so than the previous draft.