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Reaching The Tipping Point
Averting a constitutional train wreck in Iraq.


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Is it all still to play for, as our British allies refer to open questions? Or is the fix in for Iraq to become a sectarian theocracy organized roughly along Iranian lines? And what of federalism, the other disputed basic issue that underpins the Kurds’ hard-won autonomy gained in the aftermath of genocide?

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Federalism and the religion-and-state question are the two basic issues behind the ongoing procedural wrangling over the likely 30-day postponement of the Aug. 15 deadline for adopting a “permanent” constitution, followed by an Oct. 15 referendum and Dec. 15 elections.

These two issues are the hinge on which the future of Iraq hangs in the balance. How they are handled will determine the success or failure of Iraq as a stable and unitary state, as well as the ongoing U.S. commitment of blood, treasure, and prestige.

Getting Iraq’s constitution right is not simply a matter of legal or scholarly interest, but rather the single most essential way to preserve vital political momentum toward a decent and democratic state and society in the face of the terrorist offensive conducted by former Baathists and foreign jihadists.

It is no less vital for the success of the Bush administration’s grand strategy against the global struggle launched by militant political Islam, namely “the forward strategy of freedom in the Middle East” and in the wider Islamic world.

So far Iraq’s political class has not measured up to the urgent challenge of acknowledging Iraq’s pluralist realities in the shape of the proposed constitutional architecture. Iraq’s predominant Shia have unfortunately taken a winner-take-all approach in relation to federalism and the public role of Islam. But it is above all the Shia Islamist religious parties linked to Iran that have demanded as much political Islam–and as few restrictions on the majority–as possible.

In the absence of any public debate, consensus, or mandate, the latest drafts of Iraq’s constitution (see here and here) deliberately demolish the delicate balance on the paramount religion-and-state question reached after much hard bargaining in the current interim constitution or the Transitional Administrative Law (TAL). It is a radically new approach that seeks to establish a theocracy by strictly limiting all future laws to those explicitly based on “Islam … the official religion,” which is “the fundamental source of legislation.” But this provision is just one of a series of radical innovations that seek to force a premature resolution of a genuinely existential–and hotly contested–issue in the absence of any proper debate and effective consensus among Iraqis, all by means of a backroom deal.

Much remains unclear, thanks to the massive confusion surrounding the progress of the Iraqi National Assembly’s 70-member constitutional drafting committee, itself divided into six subcommittee responsible for different segments of a new constitution. As with any complex political negotiation, the actual state of play is obscured by spin, trial balloons, and leaks of language that may or may not be authoritative. But the overall direction being taken by the drafters has been greatly clarified by publication of an extensive draft published last Tuesday by the Baghdad newspaper al-Sabah.

The whole shape of this latest version–whose precise details remain in flux–would set in stone the Islamist agenda that the Shia religious parties (SCIRI, Dawa, and their allies) have long pursued with single-minded intensity. As early as December, 2002, a major London conference of Iraqi exile groups sponsored by State Department ended by issuing two statements–one in Arabic, the other in English–whose only difference was whether Islam should be “a source” or the “sole source” of future (post-Baathist) Iraqi law. In January, 2004 the same Islamist groups unsuccessfully sought to overturn Iraq’s admirably progressive 1959 personal status law–covering marriage, divorce, custody, inheritance and related matters–and impose sharia through religious courts.

But this was not the political platform that the Shia religious parties actually campaigned on while forming the bulk of the United Iraqi Alliance, the Shia coalition assembled and blessed by Ayatollah Ali Hussein al-Sistani, Iraq’s preeminent religious leader. This coalition essentially traded on Sistani’s immense prestige, with local clerics commanding the faithful to vote for the “Sistani List”–one of more than 100 parties or coalitions with vague platforms and mostly unnamed candidates–as a matter of religious obligation binding in conscience (and therefore a grave sin to vote otherwise). It is no surprise that these parties are seeking to translate a one-off, artificial advantage into permanent political gains, despite hiding behind vague platitudes (“Islam is the answer”) while posing as the authentic representatives of Iraq’s most respected figure.

So much for the “mandate” claimed by the Islamists. How exactly are they seeking to impose their agenda in the latest iteration of the constitution?

First, is the official name of the new state to be the “Islamic Republic of Iraq,” where political Islam (Islamism) trumps all other competing values? These include “the principles of democracy ” and the unqualified civil and political rights set forth in the TAL, all in accordance with Iraq’s pre-existing commitments under the International Covenant on Civil and Political Rights. The ongoing dispute over the name of the state alone suggests that disagreement over first principles cannot be overcome at present.

Second, what does it mean to say that Islam “is the fundamental source of legislation,” rather than one source among several, as provided in Article 7 of the TAL (see my analysis here). This claim reinforces a so-called repugnancy clause, which holds that no law passed by the assembly can contradict “the essential truths of Islam and its laws (sharia).” In any case, just who decides whether a particular law contravenes Islam’s “essential truths or its laws”? Which sect–Shia or Sunni–and which of the half-dozen competing sectarian schools of jurisprudence will control? Or will it be the constitutional court vaguely sketched out in the latest drafts? If so, will its membership be limited to “Islamic men of learning”? Just how likely is it that Iraqi lawmakers, overwhelmingly devout Muslims, will set about passing laws that oppose the essential decencies of Islam? Is this not rather a solution in search of a problem?

Third, what does it mean to constitutionalize the role played by Ayatollah Sistani and his peers among Iraq’s five grand ayatollahs and their successors (the marjaiyyah)? The relevant provision holds that “the Shia religious leadership has an independent character and a function of giving guidance in so far as it is an exalted religious and national symbol.” What exactly is the rationale of this provision? Does it enshrine government-by-fatwa, touched on as a possibility quite apart from any constitutional endorsement in an earlier piece? Do Sunnis accept this provision, lacking as they do the kind of vertical religious hierarchy that defines Shia Islam, especially in Iraq and Iran? Are the implications of this provision consistent with popular sovereignty or democracy?

Fourth, what of women’s rights, an especially pressing concern in a state with a clear female majority (perhaps as much as 58 percent), thanks to massive casualties in Saddam’s lost wars of aggression and internal genocide? The relevant provision of the new draft holds that “The state guarantees basic rights for women and their equality with men in all fields, in accordance with sharia [emphasis added]“. This wholly retrograde approach has set off alarm bells among politically active Iraqi women–and among senior officials in the U.S. administration. “We reject the changes … because some Islamic parties want to kidnap the rights of women in Iraq,” said Yanar Mohammed, head of Women’s Freedom in Iraq Movement. “We reject these changes because women should be full citizens with full rights, not semi-human beings.”

In another interview, the intrepid Mohammed said it this way: “We are practically being turned into slaves by the constitution, by admitting that Islam is the formal religion of the country, and by handing over the writing of it … to a bunch of bigots who want to see women inferior in society.” In the same piece, Masoon al-Denuchi, deputy minister of culture and head of the Iraqi Women’s Group adds: “Unfortunately we don’t have a militia. The only thing we can do is lobby and talk and talk and talk.”

Fortunately, the U.S. administration is listening, partly because women’s rights is an issue with huge domestic political resonance. Zalmay Khalilzad, the former U.S. ambassador to Afghanistan who arrived in Baghdad last week as the new ambassador to Iraq, forcefully intervened in the ongoing constitutional debate with these words: “In our view equality before the law for Iraqi citizens is very important. A society cannot achieve all its potential if it does things … that prevent half its population from making the full contribution that it can.”

These welcome remarks are all to the good, but fall well short in the face of the manifest overall vices of an aggressively Islamist constitution, both for the Iraqi people and their American allies. As the Los Angeles Times put it, “U.S. officials have been largely silent on the constitution’s discussion [sic] of Iraq’s Islamic identity. In part that is because they do not want to be seen as anti-Islam.”

To oppose political measures against U.S. national interests is by no means being “anti-Islam.” Nor is it in any way failing to show proper deference to Islam as a religious faith. What’s necessary, however, is to answer two sets of related questions provoked by the uncompromisingly Islamist trend of Iraqi constitutional developments. First, will the one-size-fits-all imposition of political Islam on Iraq’s pluralist realities contribute to stability and democracy? Or will its essentially sectarian approach shatter Iraq’s fragile political consensus set on foot by January’s elections? Second, can any state committed to political Islam as it ruling ideology ever be a reliable U.S. ally, since the whole basis of that ideology lies in drawing sharp distinctions–beginning with what’s permitted (halal) and what’s forbidden (haram)–when much of what the U.S. represents falls on the wrong side of the line?

These same considerations apply to the ongoing debate over federalism, a notion that’s badly misunderstood among Iraq’s political class, and which is most often used simply as shorthand for Kurdish autonomy.

The Kurds will not stand for being ruled by an Islamist theocracy based in Najaf any more than they stood for the fascist secular regime formerly based in Baghdad. Facts on the ground in Kurdistan–most of them positive and favorable to U.S. interests–are not going to be overturned by any document issuing from Baghdad. But there are worrisome indications that the Kurds are being fitted up as fall guys in the blame game beginning to shape Iraqi politics. As one of Prime Minister’s Ibrahim Jaafari’s allies in the Islamist Dawa party put it last week: “The Americans and the British are demanding that the constitution be done on time, and we are asking the Americans and the British to put pressure on the Kurds.”

That approach is a recipe for disaster.

A far better approach than the impending constitutional train wreck would follow the wise suggestions made by Jalal Talabani, one of the two top Kurdish leaders. “Human rights and individual liberties, including religious freedom, will be at the heart of the new Iraq,” he said. As he put it, it took ‘long hours of discussion and debate to reach the TAL, a document that enshrines many good principles that the Iraqi people have longed for for years. These controversial issues [the relation between Islam and the state] were settled in the TAL in an acceptable way. If we allow that door to open again, nobody knows how it will be closed.”

Just so.

Nobody knows better than the Kurds, America’s chief ally in Iraq, the dangers of ideology run wild. As a Kurdish proverb has it, a man who’s been bitten by a snake will always be afraid of rope.

John F. Cullinan formerly served as a senior foreign-policy adviser to the U.S. Catholic bishops, focusing on international law, international religious freedom, and human rights.



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