Via the NYT: Secular Iraqis Say New Charter May Curb Rights

Some secular Iraqi leaders complained Tuesday that the country’s nearly finished constitution lays the groundwork for the possible domination of the country by Shiite Islamic clerics, and that it contains specific provisions that could sharply curtail the rights of women.

The secular leaders said the draft, which was presented to the National Assembly on Monday, contains language that not only establishes the primacy of Islam as the country’s official religion, but appears to grant judges wide latitude to strike down legislation that may contravene the faith. To interpret such legislation, the constitution calls for the appointment of experts in Shariah, or Islamic law, to preside on the Supreme Federal Court.

First off, let me pick on the reporting for a moment. I absolutely detest it when reporters start off with the ol’ “some X said yesterday”–as it really tells us nothing about how seriously to take these somebodies. Are we talking two, twelve, twelve thousand? Are they important, pivotal people, of just somebody who would talk to the NYT?

I especially like the second paragraph and “The secular leaders said” bit. If they are “leaders” surely they are public figures. A tad more information sure would be nice.

Sorry–that sort of thing is just one of several press-related pet peeves that drive me a bit nuts.

Second, on to substance. Regardless of the reportage, there are important concerns here. I would note, that like in any democratic setting, if a large number of people adhere to an idea, philosophy or a religion, it is incredibly difficult to block said idea, philosophy or religion from infusing political life and even government. That is simply a fact, although that fact doesn’t mean that there aren’t serious concerns here. However, it does mean that the execution of governance will be affected by prevailing views.

The issue of legal interpretation is a significant one, to be sure. The partial draft constitution that I posted yesterday does create some serious concern over the potential infusion of Shariah into Iraqi jurisprudence. Given the way the document is written, it seems to me that the actually application will be as dependent upon who sits on the bench as much as the precise wording of the constitution might be.

And certainly there are troubling issues, for example:

Language reserving a quarter of the Assembly’s seats for women has been relegated to a section of the constitution labeled transitional, which is of uncertain legal force and duration. Another phrase declares that education is mandatory only through elementary school. Women’s rights groups, which expressed concern about lower levels of literacy among women here, wanted middle school to be declared mandatory as well, but were defeated.

Of course, part of the overall problem is that Iraqi society itself is not one in which gender equity is the norm–and it is foolish to assume that a new constitution will be able to impose such practices onto the population. However, I do concur that clear statements of equal rights are needed–more so, perhaps, than will be included. And there do seem to be such clauses. The question is going to be interpretation and application–but that is true of any constitution (look at how Roy Moore interpreted the preamble of the Alabama constitution to mean that it was his solemn duty to “acknowledge God” as part of his job as Chief Justice of the Alabama Supreme Court).

Institutions, however well or poorly crafted, must be occupied by people, and the core views of those people will invariable affect the functioning of said institutions.

The article does note the following that may assuage some concerns:

Other Iraqi leaders who helped draft the constitution say the fears of nascent theocracy are unfounded. The new draft constitution, they point out, contains language guaranteeing equal rights for all Iraqis, as well as freedom of expression and religion. And it contains important safeguards, such as, in some cases, the requirement of super-majorities to approve laws.

Ahmad Chalabi, the deputy prime minister, said the Iraqi draft constitution erected a more stringent separation of state and religion than any such document in the Middle East. Mr. Chalabi said the new language allowing a clerical role in family disputes was inserted by popular demand, and that, in any case, any Iraqi would be free to reject it and opt for a secular court.

We shall see. If anything, it is hard to argue that this constitution isn’t far more liberal than the rules governing the Saddam regime (not that that is a difficult hurdle to clear).

Ultimately I don’t see how it is possible in this context to utterly divorce Islam from the constitution, given the importance of Islam to large and substantial portions of the Iraqi people. The best that can hoped for is a reasonable fusion of the secular and the religious that avoids theocratic governance. And how well that can or will work remains to be seen.

1 Comment

1. [...] .) like the way they sort it out is, of course, a different question. I think Dr. Taylor has it right when he posts: The issue of legal interpretation is a significant one, to be sure. The partial d [...]

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