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Iraq's constitutional talks keep going.


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It’s still very much up in the air whether or not Iraq’s national assembly will meet today’s deadline for approving a “permanent” constitution largely because the two most intractable disputes–federalism and the public role of Islam–were mixed up and thereby confounded by radical, last-minute demands for an autonomous–and sectarian–Shia mini-state covering nearly half of Iraq.

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This call came last Thursday from Iraq’s most powerful political leader, Abdul Aziz al-Hakim, clerical chieftain of the Supreme Council for the Islamic Revolution in Iraq (Sciri), an Iranian-backed religious party with a large Iranian-trained private militia. Hakim was hailed by massive crowds in Najaf, home of the senior Shia religious leadership, chanting “Yes, yes to Islam!”

“We believe that it is necessary to form one territory that includes the south and central Iraq,” said Hakim, calling this “a sacred goal.” “The constitution must allow the formation of regional governments along with the united central government,” he added, “based on the principles of equality and justice“–code words for political Islam (Islamism) in the shape of an uncompromising sharia state based wholly on Islamic law, like Iran, Saudi Arabia or Sudan–or Afghanistan under the Taliban.

Hakim’s pronouncement may or may not be a case of megaphone diplomacy in the context of ongoing backroom negotiations over Iraq’s constitutional architecture and political future. But it is yet another reminder of the paramount goal of Iraq’s Shia religious parties, pursued with single-minded zeal: across-the-board imposition of Islamic law by the Iraqi state. And this shot across the bow raised fears among Iraqis–including many Shia–that the religious parties are seeking to establish an Iranian client state that would result in partition of Iraq, leaving rebellious Sunnis stranded between potentially oil-rich Kurdistan in the North and oil-rich Iranistan in the south.

What Hakim seeks goes well beyond deference to Islam as the religion followed by the vast majority of Iraqis. It is an essentially theocratic vision that goes far beyond other religion-and-state arrangements to which Islamism is sometimes (wrongly) compared, such as the remaining legally established churches in modern Europe. That is fundamentally misleading analogy, since (for example) the modern British state expressly rejects any competence to determine or enforce religious truth. Nor does the Church of England look to the British state to enforce Anglican moral norms or canon law.

The British church-state dispensation is precisely the opposite of what Sciri and the other religious parties seek to impose. Their agenda involves several steps, beginning with the designation of Islam as Iraq’s “official religion,” an issue already conceded in Iraq’s interim constitution or Transitional Administrative Law (TAL). Never mind that there is no agreed definition in international law of what an official religion means; or that in practice it means whatever the ruling elite wants it to mean. But it is the foundation for the following demands.

Another of the most vexed questions still being discussed is whether Islam (however defined) will serve as “a source” of future law (as in the TAL) or as its “main” or even “sole” source. In the first case, other permissible sources includes the unqualified civil and political rights and “the principles of democracy,” (as in the TAL), as well as the universally agreed human rights norms by which Iraq is already bound as a party to the International Covenant on Civil and Political Rights (ICCPR). It also means that Iraqi lawmakers can take into account the experiences of other states and adapt what seems most suitable.

That would not be the case if Iraq should adopt the latter approach, which would limit the provenance of future laws to the closed circle of Islamic jurisprudence. It would also threaten Iraq’s future stability, since there are at least four major schools of jurisprudence within Sunni Islam and two within Shia Islam. Who decides which school of interpretation prevails? Would it be the constitutional court sketched out in earlier drafts of the constitution? If so, will that court be composed of lawyers expert in the civil law or clerics versed in sharia?

The third step toward a sharia state is a so-called repugnancy clause nullifying any law deemed contrary to Islam (or specifically to sharia in some drafts). Again, who decides? Will the matter be settled by lawmakers themselves, the constitutional court–or by ad hoc–and extra-constitutional–fatwas issuing from Najaf? Also, what exactly is the rationale for this measure? How likely is it that Iraqi lawmakers–overwhelmingly devout Muslims–will set about passing laws higgledy-piggledy that somehow oppose Islam? Is this measure not a solution in search of a problem–or simply a means of ensuring indirect clerical control of Iraqi political life?

The fourth and final step is to overturn Iraq’s relatively progressive 1959 law governing personal status, the civil-law category that includes marriage, divorce, custody, inheritance and related matters. This is the law–passed before the Baathist dictatorship–that enabled Iraqi women to make huge strides toward equality with men, with the result that Iraqi women now form a disproportionate share of the professional classes (especially since Saddam’s lost wars of aggression cost more than one-half million casualties among Iraqi men).

Imposing sharia on Iraqi women is a wholly retrograde measure that would leave Iraqi women less free than during the Baathist dictatorship. Indeed, Iraqi women enjoyed broader rights than anywhere else in the Arab world, as I learned while living and working in Jordan, a comparatively liberal Arab state and society. Is this the legacy the U.S. hopes to leave, where women inherit half as much as men and their testimony in court receives half as much weight? Or where women can be divorced simply by a husband saying three times “I divorce you”–with little or any rights to custody or alimony, all depending on the whims of the local mullah?

More than anything else, the prospect of Iraqi women losing rights and freedoms they now enjoy has galvanized the Bush administration into action. Yet its response–a limited carve-out of women’s rights from a sharia-based constitution–is both unworkable and unworthy of the blood and treasure the U.S. has poured on behalf of a free Iraq. It is unworkable because a limited constitutional exception for women will be subsumed within the overall context and logic of an uncompromising sharia state. And it is unworthy of American ideals and inimical to U.S. interests simply to stand by while Iranian-backed religious parties turn back the clock for all Iraqis–not just women–to an imagined version of the seventh century.

It is often asked whether Islam as a faith is compatible with democracy as a political philosophy. Or whether Islam can accommodate equal rights for women and non-Muslims. Good questions, but hardly the most pertinent. For the most urgent question is whether Islamism as a political ideology is essentially totalitarian, like fascism and Communism, by seeking to bring the individual, the family, and society itself under the heel of the state. In other words, can Islamism function by example and persuasion–but without the coercive power of the modern state? Similarly, can Islamism acknowledge the rightful autonomy–and freedom from clerical control–of the individual, the family, society itself, and political life generally?

The answers to these questions will determine the fate of the post-9/11 U.S. grand strategy, namely “the forward strategy of freedom in the Middle East.”

That’s the essential background of the dispute now being played out as our best and bravest are fighting and dying in Iraq.

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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