Putting It in Ink
Getting Iraq's constitution right.


Getting the big constitutional issues right will go a long way toward determining whether or not Iraq’s fledgling democracy succeeds or joins the ranks of failed states.

So far Iraqis and Americans alike have focused primarily on just two of the three essential tasks at hand: security and reconstruction. Given the ongoing guerilla conflict and the dilapidation of Iraq’s vital infrastructure, improving security and restoring basic services have necessarily posed the most pressing challenges for the U.S.-led Coalition Provisional Authority (CPA) and the interim Iraqi Governing Council. Both rightly regard progress in these areas as preconditions for ordinary Iraqis to set about improving their lives, exercising their new freedoms, and gaining ownership over local and national institutions now taking shape.

Now the related task of political development–of which a new constitution is the keystone of the whole institutional edifice–is finally getting welcome though overdue attention. Just last week a committee of Iraqi experts–lawyers, judges, and religious leaders appointed by the Governing Council–reported that it was hopelessly deadlocked over procedures for drafting and ratifying a new constitution. Immediately at issue is whether to elect or select delegates to a planned constitutional convention; but this nominally procedural dispute reflects more fundamental differences over the proper relationship between religion and the state and the necessary protection of ethnic, religious, and political minorities from winner-take-all majoritarianism.

The current impasse is actually a welcome and necessary development. For it forces Iraqi political leaders–and the CPA–to come to grips with tough political choices and trade-offs thus far postponed by focusing almost exclusively on procedures and mechanics. The prior approach–now overtaken by events–put the cart before the horse by treating the constitution’s substantive provisions as an afterthought and by failing to acknowledge that widespread public debate and consensus are the necessary foundation for any workable constitutional settlement.


Any just and durable framework for handling the fundamental minority-protection and religion-and-state questions will likely be shaped by two basic operating principles: limitation and competence.

Limitation is the fundamental organizing principle of any genuine constitutional order. Every such order by definition consists of a limited state; and the relevant limitations in turn govern three sets of relationships: between the citizen and the state (individual rights); within the state itself (separation of powers and checks and balances); and between the center and the regions (federalism).

Few Iraqis need much convincing of the virtues of a limited state after suffering the vices of unlimited tyranny. Indeed, a representative gathering of Iraqi political and religious leaders held at Ur on April 15 agreed that “the future government of Iraq should be organized as a democratic federal system” in which “the rule of law must be paramount,” based “on respect for diversity including respect for the role of women.”

What’s more, the Ur gathering explicitly rejected using ethnic or religious identity as the basic building blocks of the new political order: “The future government of Iraq should not be based on communal identity.” To do otherwise would simply reinforce existing divisions. This enlightened approach–which IGC member Ahmad Chalabi explicitly endorsed before the U.N. General Assembly onOct. 2–requires rejection of the 1925 constitution’s limited group rights in favor of full individual rights, which are the indispensable safeguard for all minorities.

Where consensus is less likely is in the application of the principle of limitation to the relationship between religion and the state. Differences of opinion on this issue were so great among those gathered at Ur that their final statement acknowledged only that “the meeting discusse[d] the role of religion in state and society.” Yet these undeniable differences are less a matter of dispute between Iraq’s Sunni Muslim minority and its Shiite majority than among Shiites themselves.

Iraq’s Shiite community, long oppressed and effectively disenfranchised under Ottoman, British, Hashemite, and Baathist rule, is only beginning to come to terms with its demographic preponderance in a democratic Iraq. By nearly all accounts, few favor the failed Iranian model of clerical despotism that the vast majority of their Persian coreligionists have come to despise. On the other hand, there is little support for the aggressively secularist Turkish model that denies Islam any public role at all. Somewhere in between lies the broad mainstream as yet uncertain how the future Iraqi state should respect Islamic values within a pluralist context.

This genuine diversity of opinion–as well as the presence of religious and ethnic minorities–must preclude the new Iraqi state from possessing any competence to determine or enforce religious truth, specifically including adoption of any particular version of Islamic law.

To a sympathetic outsider, the historical experience and theological resources of Iraq’s Shiite community appear particularly well suited to distinguishing between the competing claims of religious and political authority. The Shiite tradition first arose as a result of an early dispute over the proper succession to the mantle of the prophet Mohammed as religious and political leader of Muslim community; and as losers in that contest many Shiites have long regarded Sunni-dominated polities–from the early caliphate to its modern successor states–as at best provisional, if not actually illegitimate, and in no way commanding ultimate allegiance. In this view, the proper role of the clergy is to safeguard the integrity of authentic Muslim teaching from political manipulation; mediate between rulers and ruled; and, above all, shape the values of the community through teaching and witness.

In short, there’s no necessary contradiction between an Iraqi state reflecting basic Islamic values–just as Tocqueville’s America reflected predominantly Protestant “habits of the heart”–without also adopting and enforcing a single interpretation of Islam. An eminent U.S. theologian once described the First Amendment’s religion clauses as articles of peace, not articles of faith, meaning that they embody practical accommodations, not religious truths, to which believers of all stripes–and nonbelievers–can subscribe. There’s a similar balance to be struck between Sudanese sharia and Swedish secularity–neither of which is suitable for Iraq’s particular circumstances–that combines these essential elements: positive state neutrality toward religious faith, rightful autonomy for all religious traditions, and individual religious freedom.

Very similar views have been expressed by the Iranian Shiite cleric Hussein Khomeini, grandson of the late Ayatollah Ruhollah Khomeini, who joined the mass exodus of clerics and seminarians from Qom and Tehran to the Shiite holy cities of Najaf and Karbala after the liberation of Iraq. “The American presence in Iraq is a guarantee of religious freedom that we do not have in Iran,” says Khomeini. “The Americans are not going to tell me how to live my Shiism as do the present rulers of Iran.”

These considerations help explain why the seemingly arcane dispute over delegate selection to the constitutional convention is a dress rehearsal for the looming debate over the constitution itself. Iraq’s Shiites risk overplaying their hand by relying on sheer weight of numbers and better organization to shape the constitution without much reference to legitimate Sunni and Kurdish concerns. Sunnis and Kurds alike would understandably regard such lack of restraint as the prelude to settling old scores. Haste also risks unduly increasing clerical influence simply because the clergy are still far better organized than all other groups in Iraq’s emerging civil society. A better approach–and one that acknowledges the insuperable difficulties of holding free and fair elections just now–would be to select delegates through regional assemblies in Iraq’s 18 provinces.


Much the same considerations would apply to the imposition of Islamic law or sharia. It is not only the case that traditional sharia mandates discrimination against all women and non-Muslims in direct contravention of all relevant international standards requiring equality of persons before the law. It’s also that state enforcement of religious law inevitably blurs essential distinctions between sin and crime. Just one example is the lamentably common practice of using blasphemy laws to criminalize legitimate political dissent, policy differences, or even social criticism, notably in Egypt, Saudi Arabia, Pakistan, and Afghanistan (even under the current Karzai regime).

A currently fashionable academic theory holds that sharia states like Sudan are really no different from, say, modern Britain with its long-established church. This is a facile and deceptive comparison, given the Church of England’s increasingly attenuated role in British public life. More to the point, the C of E cannot command the British state to enforce Anglican canon law or religious norms on either Anglicans or non-Anglicans. Indeed, the Archbishop of Canterbury also does not issue fatwas or religious edicts on public-policy issues that Britons–especially public officials–regard as binding.

What is more, religious groups always run the risk of capture through excessive entanglement with the state. Few Shiite clerics would trade the jealously guarded independence of their center of learning, the Hawza, for the unbecoming subservience of Cairo’s al Azhar–long the flagship of Sunni Muslim scholarship–now reduced to the level of court theologians flacking for Egyptian President Hosni Mubarak’s personal dictatorship.

The bedrock principle on which civil peace and political stability in the future Iraq will rest lies in the constitutional reaffirmation of the internationally recognized individual human rights to which Iraq is already bound, particularly as a party to the International Covenant on Civil and Political Rights. These rights include religious freedom (Article 18), which is an inseparable part of the full range of basic human rights, both in principle and in practice. For religious freedom–in both its individual and corporate dimensions–comprises at a minimum the related rights of freedom of thought, expression, and association, as well as the right of intermediary institutions to carry out their legitimate roles in civil society, including participation in the political process. As a purely practical matter, where religious freedom is denied–as in China or Saudi Arabia, for instance–so too are other basic human rights.

Iraqis and Americans alike share a common interest in building a more decent and democratic Iraq that is at peace with itself and with its neighbors. Indeed, even American political leaders who disagreed with the removal of Saddam’s regime by force now acknowledge that failure is unthinkable. Vital and legitimate U.S. interests are stake, given the considerable–and ongoing–expenditure of American blood, treasure, and prestige. That is why Ambassador L. Paul Bremer, the U.S. civilian administrator in Iraq, needs to make clear that not everything is up for grabs; and that certain red lines and necessary features will shape any acceptable constitution settlement. The U.S did so quite emphatically in the matter of federalism, the sine qua non for Kurdish participation in the new Iraqi state. The minority-protection and religion-and-state issues–whose proper resolution is no less vital for civil peace and political stability–require precisely the same degree of firm direction.


Later this week President Bush meets with the U.S. Commission on International Religious Freedom, an independent federal agency charged with overseeing the promotion of religious freedom as an explicit U.S. foreign-policy goal under a 1998 law. Its nine commissioners are distinguished religious leaders and scholars appointed by the White House and the bipartisan congressional leadership. Topping the agenda are the Iraqi and Afghan constitutions.

The Afghan constitution offers a cautionary tale. Nearly two years after the fall of the Taliban, the proposed constitution’s final draft is only now about to be made public, less than two months before the planned constitutional convention. So much for informed debate of its substantive provisions–either in Afghanistan or in the U.S. Congress, for that matter. What’s known from recent press reports (see here and here, as well as discussions with authoritative sources who’ve actually studied earlier drafts, is deeply troubling.

First, the constitution provides that “no laws shall run counter to the sacred principles of Islam.” What exactly are these principles? And who decides? These determinations are likely to be made by clerics sitting as judges under a system resembling Iranian-style walayat al-faqih (custodianship of the jurisconsult). Second, sharia applies in the absence of positive law, either constitutional or statutory. Look for the creation of deliberate constitutional or statutory gaps allowing sharia to govern large aspects of Afghan life, probably beginning with family law.

These are the fruits of the State Department’s characteristically hands-off approach to all religious issues, which are regarded in Foggy Bottom as too hot to handle–notwithstanding the inevitable damage to vital and legitimate U.S. interests. These considerations help explain why State took the extraordinary step of classifying early drafts of the constitution.

Whether or not the same mistakes are repeated in Iraq–where the stakes are measurably greater than in Afghanistan–is ultimately up to the president. The choices are clear and the hour is late.

Jack Cullinan, an expert in human rights and international law, formerly served as a senior foreign-policy adviser to the U.S. Catholic bishops.


Sign up for free NRO e-mails today:

NRO Polls on LockerDome

Subscribe to National Review