September 22, 2005
Column #1,256

                        Iraq Constitution: Democracy Vs. Islam


The Iraqi Constitution tries to blend democratic ideals of freedom of expression with traditional Muslim values. However, the clash should be troubling to the American  people who have poured $200 billion into trying to establish a democratic state in the heart of the Middle East.

Much of what is in the drafted Constitution wins praise in the West. For example, one provision asserts that no law "may contradict the principles of democracy."  Freedom of expression is guaranteed. Torture and inhumane treatment are banned and victims can sue for compensation. One in four Parliament seats are reserved for women (a higher percentage than in the U.S. Congress).

Islam is called a "basic source" of the country's national laws. That is a compromise between those who wished it to be mentioned as "a source" and those who wanted it to be "the source," as religious Shi'ites and Sunnis demanded.

However, another provision bars passage of any law that contradicts "the established provisions of Islam."

The Constitution thus "embraces two diametrically opposed visions of society, one based on individual liberty and equality - and a Shar'ia system which is itself based on group rights," argues Nina Shea, director of the Center for Religious Freedom at Freedom House who also serves as Vice Chairman of the U.S. Commission on International Religious Freedom.

Contradictions between these clashing views of society will end up in the Supreme Federal Court. The problem is that the Constitution allows the Parliament to appoint "experts in Islamic jurisprudence" to the Supreme Court, without requiring them to have traditional legal training. This could create real problems, if they nullify democratic rights, because they are in conflict with Shar'ia law.

"Though Article 5 says the people are sovereign, that may not be quite so, if the religious elite, wise men on the court, say the divine will has to be contended with," says Shea. "Only three countries have this model - Iran, Saudi Arabia and Afghanistan."

However, the potential for a Supreme Court bench that nullifies human rights in light of Shar'ia law is tempered by one fact. The rules for the appointment of judges to the Supreme Court shall be determined by a law enacted by a two-thirds majority of the Members of the Parliament.

In other words, the Constitution defines the clash in the two world views, but allows the electoral process to determine which side will win. Women can vote in Iraq. Will they vote for Representatives who would, in effect, nullify rights of women, by placing religious mullahs on the Supreme Court. Probably not. 

Similarly, a substantial percentage of Muslims in Iraq, such as the Kurds in the north, and many in Baghdad are not religiously active. Will they vote for candidates who pledge to appoint Shar'ia leaders to the Court? It is doubtful.

It appears unlikely that religious extremists will be able to elect enough people to get a two-thirds majority that will place religious extremists on the court. The Constitution only permits such an appointment, if approved by two out of three of those elected to a future House of Representatives.

For this reason, Fouad Ajami, a distinguished Middle East scholar, wrote in "U.S. News and World Report," "We should be done with the boogeyman image that these makers of Iraq's constitution will hatch a theocratic republic. There is nothing particularly startling about asserting that Islam is a `main source of legislation.'"

I am not so sanguine. Article 39 of the proposed constitution states, "Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law." In a divorce case, what happens if a woman chooses a secular court and her husband chooses a religious one?

In that case, the answer will be left up to Parliament to decide by a simple majority. I'm betting that historic male dominance in Islam will win the day. Undoubtedly, there are many similar issues that lie beneath the surface in the contest between democracy and Islam which won't be apparent until after the government begins to function.

For example, the state only guarantees freedom of expression, press and assembly and peaceful protests "as long as it does not violate public order and morality" in Article 36. This is precisely the kind of language that has been used in many pseudo democracies in the Arab world to shut down political opposition.

Will the constitution lead to a true democracy in the Middle East? It depends on who is elected. More religious leaders were elected to the temporary government than expected.