The Consultative Assembly … may at no time legislate laws that are contradictory to the sacred laws of Islam … It is self-evident that it is the responsibility of the Islamic men of learning to determine and judge such contradictions. Therefore, it is officially decreed that in each legislative session a board of no less than five men, comprised of jurisconsults and devout specialists in Islamic law … be nominated by the Islamic men of learning … It is their duty to study all the legislative proposals, and if they find any that contradict the sacred laws of Islam, they shall reject it. The decision of this board in this respect is binding and final. This provision of the Constitution is unalterable until the appearance of the Imam of the Age–may God hasten his advent.
Readers are invited to guess whether this passage is taken from a) the 1979 Iranian revolutionary constitution, b) the proposed 2003 Afghan constitution, or c) Grand Ayatollah Ali Hussein al-Sistani’s theological blueprint for a new Iraqi constitution.
#ad#In fact, it is none other than the original source and model for all of the above: the 1906 constitution of Persia. It also represents a characteristically Shiite Muslim response to the challenge of preserving Islamic values in the face of modernity, whose hallmark is an autonomous political sphere beyond direct clerical control by “the Islamic men of learning.”
What’s more, this particular challenge underlies last week’s shambolic unraveling of the November 15 “Agreement on Political Process” between the U.S.-led Coalition Provisional Authority (CPA) and the U.S.-appointed Iraqi Governing Council (IGC). This deal called for a two-step political transition, beginning on July 1, 2004, with a fully sovereign Iraqi provisional government based on an interim constitution. The second step called for March 2005 elections for delegates to a constitutional convention, leading to a permanent constitution and government by the end of 2005.
Almost at once this deal came unstuck. As its implications sank in, IGC members began expressing second thoughts even before the ink was dry. America’s handpicked Iraqi leaders complained that they’d been bounced into accepting a bad deal under unfair American pressure. This objection was a tough sell, since it was the IGC’s willful stalling on constitutional issues that had provoked the mid-November crisis in the first place. Bear in mind that by deliberately running out the clock (see here and here), the IGC had forced the U.S. to abandon its settled political transition strategy, set out in Ambassador Bremer’s September 7 seven-steps-to-sovereignty plan, by accelerating the handover of power and reversing the planned sequence of events.
But the real objection of IGC members lay in the looming disappearance of their positions and prerogatives when the Iraqi provisional government takes office next July 1. Most members are either exiles or political neophytes without any following in Iraq; and all would forfeit their present influence, even if they succeeded in making the cut as just one among perhaps 250 parliamentarians. That’s why several members began spinning the November 15 agreement as a work in progress, rather than a done deal. “For us it is an evolving process,” said Mowaffak al-Rubaie, a Shiite physician who was practicing medicine in Britain at this time last year. “It is not written in stone, we modify it as we go, according to the interests of the Iraqi people.”
But these self-interested misgivings are a mere bump in the road compared with the roadblock erected by Ayatollah Sistani, the principal spiritual leader of two thirds of Iraq’s population. It so happens that the November 15 agreement, much heralded by administration officials in Washington and Baghdad as a huge success, has unraveled because Iraqi politicians wrote a check that a single Iraqi cleric wouldn’t cash.
Bear in mind the November 15 agreement was designed expressly to satisfy Sistani’s longstanding demand for the direct election of delegates to any Iraqi constitutional convention. Sistani’s June fatwa to this effect, discussed at length in these pages for months, was by turns ignored and underestimated by CPA officials. That’s no doubt one reason why in late October, Sistani reiterated the substance of his fatwa.
These [occupation] forces do not have any authority to appoint members of a constitutional commission. There is no guarantee that this commission will write a constitution that matches the higher interests of the Iraqi people and expresses their national identity. That identity rests on pure Islamic faith and noble social values …. We must first hold general elections so that each eligible Iraqi can elect representatives to a constituent assembly to write a constitution. A general referendum will follow on the constitution that the assembly approves. All of the believers must request this and do their best to see that it happens. May God lead all of us toward what is good and sound (emphasis added).
These two demands–direct elections for delegates and constitutional ratification by nationwide referendum–are fully satisfied by the November 15 deal. But Sistani himself is far from satisfied by these concessions. He has instead responded with a fresh set of objections and demands: direct elections for the transitional legislative assembly, and guarantees that the interim constitution will defer to Islam.
First, elections. In written responses to written questions submitted by the Washington Post, Sistani insisted that elections are the only possible means for “guaranteeing” a truly representative and legitimate provisional government:
The mechanism in place to choose members of the transitional legislative assembly does not guarantee the establishment of an assembly that truly represents the Iraqi people. This mechanism must be replaced with one which guarantees the aforesaid, which is elections, so the assembly will emanate from the desire of the Iraqi people and will represent them fairly without its legitimacy being tarnished in any way (emphasis added).
Never mind that the proposed caucus system is far more representative and more firmly based on the consent of the governed–and will result in a parliament with far more actual authority–than that of any existing Arab regime. And never mind that nearly all Iraqis acknowledge the practical impossibility of holding free and fair elections before July 1 in the absence of an agreed-upon census, an electoral law, or any working electoral machinery–not to mention the mounting insurgency. How, for instance, can elections take place in the restive Sunni heartland without returning unrepentant Baathists as legislators? In similar circumstances, strong measures forbade election of Nazis in postwar Germany. That’s why the November 15 agreement calls for selecting assembly members through regional caucuses in Iraq’s 18 provinces (the same method previously advocated on NRO).
IGC members who’ve raised these logistical hurdles with Sistani report that the ayatollah is unmoved. “It would be a quick and dirty election, but Sistani doesn’t mind that,” said Rubaie.
Second, Sistani “didn’t find anything that assures Islamic identity” in the proposed outline for an interim constitution in the November 15 deal, according to Abdul-Azziz Hakim, an IGC member representing the Supreme Council for the Islamic Revolution in Iraq (SCIRI). “There should have been a stipulation that prevents legislating anything that contradicts Islam in the new Iraq, either in the interim or permanent phase,” explained Hakim. Just in case anyone missed the point, Hakim issued this not-so-veiled threat: “There will be real problems if the reservations we have expressed are not taken into account.”
By demanding snap elections for the transitional legislative, Sistani has seized the rhetorical high ground. After all, no democrat can oppose legislative elections, especially in comparison with unduly complex–but genuinely representative–regional caucuses. But the focus on Sistani’s demand for elections has obscured his equal insistence on strict constitutional limits on Iraq’s future political life, enforced by unelected clerical overseers. What’s been overlooked is the fundamental contradiction between Sistani’s insistence on elections as the sole source of democratic legitimacy and his demands for “guarantees” limiting democratic choices to essentially procedural matters through a constitutionally established clerical veto.
Who exactly is this Grand Ayatollah Ali Hussein al-Sistani? How is it that a reclusive, 73-year-old, Iranian-born Shiite cleric can derail a vital political deal between a superpower and its local clients? And how exactly does Sistani himself regard the proper role of the clergy and the proper relation between Islam and the state?
Sistani is by far the most prominent figure in Iraq’s blasted and flattened political landscape. All of his secular political counterparts were murdered or exiled by the Baathist regime; no Adenauers or Havels survived to emerge from Saddam’s prisons ready to offer political leadership. Merely by surviving Saddam’s gangster state while his two most senior colleagues were murdered (Grand Ayatollah Mohammed Sadeq Sadr) or died under house arrest (Grand Ayatollah Abdul Majid al-Khoei), Sistani’s stature far exceeds those of the exiles and amateurs who make up the IGC.
What’s more, Sistani also commands the enormous respect due the most senior Shiite clerics, known as marja al-taqlid or “models for emulation.” Their unchallenged authority within the Shiite community extends well beyond purely religious matters to include all social and political issues with religious or moral implications. “The grand ayatollahs will always be the highest spiritual guide in everything–economics, politics and social issues,” according to Ali Najafi, son and spokesman of Sistani’s peer, Grand Ayatollah Bashir al-Najafi. “They will be the leaders, the fathers, the advisers.”
Sistani’s theological views have been the subject of widespread misunderstanding. Undue emphasis has been put on overly literal interpretations of his terse statements on the proper role of the clergy, like this response to written questions from the Washington Post: “Religious scholars should distance themselves from positions of administrative and executive responsibility.” This remark is rightly seen as a rejection of the failed Iranian model of direct clerical control of every possible lever of state power. But it is in no way inconsistent with Sistani’s present ambitions as ultimate arbiter of whether elections are held and whether the constitution defers to Islam. What Sistani seeks–and what he’s now exercising–is indirect but decisive political influence without political office–or electoral accountability.
It is a categorical mistake to classify Sistani as an apolitical quietist whose concerns are limited to ritual and spirituality. Yet that’s how he is consistently described in the Western media, thanks to theological ignorance and lazy groupthink. Where Sistani differs from the late Ayatollah Ruhollah Khomeini–his seminary colleague in Najaf from 1965 to 1978–is over means, not ends. Sistani has rejected the failed Iranian model of direct clerical rule that the overwhelming majority of his Shiite coreligionists in Iran have come to despise. But Sistani seems strongly in favor of indirect clerical control of political life by ensuring guaranteed outcomes that are hard to square with his professed enthusiasm for democratic choice.
The same formula arises again and again as the preferred means of confining politics within narrow limits established and enforced by Muslim clergy. “Iraq is moving toward a free market economy so no laws can limit what anyone can do in the economic field,” according to a senior SCIRI official quoted in the November 16 New York Times. “But our program for the constitution is for it to respect the Islamic identity of the Iraqi people. No law should be passed that contradicts Islamic law in its broad principles.”
Attentive readers will perceive in this formula the same principles contained in the provision from the 1906 Persian constitution. It’s actually a subsequent (1907) amendment adopted at clerical insistence. While this panel of “Islamic men of learning” was never formed and never passed judgment on legislation, it’s the direct inspiration for nearly identical provisions in the 1979 Iranian constitution (see esp. articles 5 and 91) and the pending Afghan draft constitution (see esp. articles 2 and 3) now being debated by a loya jirga, or assembly of notables.
This approach greatly underestimates the common sense and religious faith of the Iraqi people. And it betrays a striking lack of faith in ordinary Iraqis–and their elected representatives–to make the right decisions on their own behalf, except within the narrow parameters established and enforced by the clergy.
This insight helps explain widespread clerical enthusiasm for snap elections designed to preempt debate before it’s properly begun, while most Iraqis are understandably preoccupied with making ends meet and staying out of the line of fire. Present circumstances in which nationalist passions and religious sentiments are mutually reinforcing will not last forever. Indeed, one Iraqi observer puts it this way: “The religious parties are afraid that in a year or two, the standard of living will increase and prosperity will increase and the people will not go for these religious parties,” according to Jabber Habbib, a political scientist at Baghdad University. In fact, the clergy’s indecent haste to settle Iraq’s political future in advance reflects a senior State Department official’s celebrated 1990 characterization of Islamic democracy as “one man, one vote, one time.”
It is above all on this paramount religion-and-state issue that battle lines are being drawn. But this dispute is also a straightforward test of strength between the U.S. and its nominal allies in the IGC, on the one hand, and Ayatollah Sistani and the senior Shiite clerical establishment, on the other. “We cannot deny there is an attempt to set a precedent on Sistani’s side and our side,” said one IGC member, understandably on condition of anonymity. “This is more than about elections. It’s about whether we will allow one man to dictate the terms of our sovereignty.”
The CPA may well have blundered into this confrontation unawares, but responsibility for provoking it lies with squarely with Ayatollah Sistani. How best the CPA should proceed in these extraordinarily difficult circumstances will be explored in a subsequent piece next week.
In the interim, consider President Bush’s apt judgment that both “military dictatorship and theocratic rule are a straight, smooth highway to nowhere.” How the present crisis is handled will go a long way toward determining the success or failure of the president’s bold “forward strategy of freedom in the Middle East.” For ultimately at stake are the political future of Iraq, and the legacy of America’s 43rd president.
–John F. Cullinan, an expert in human rights and religion-and-state issues, formerly served as a senior foreign-policy adviser to the U.S. Catholic bishops.