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. |
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