Legacy of Liberty: Religious freedom, political freedom, and Iraq's new fundamental law
National Review Online
February 20, 2004
by Paul Marshall
Iraq has raging disputes over three issues. One is the nature and status of elections. The second is the place of the Kurds. The third is the relation of religion to the state.
The first two are likely to be settled, for good or ill, in the next year. The third will be contested for many years after the U.S. leaves, and the principal way that America can shape it will be the content of the interim constitution, the fundamental law, which will be the template for a permanent constitution.
On November 15, Iraq's Coalition Provisional Authority (CPA) and its Governing Council reached an "Agreement on Political Process" to produce a "Fundamental Law," to be completed by February 28, and that cannot be amended until replaced by a permanent constitution in mid-2005. The agreement specified that the law would include a bill of rights guaranteeing freedoms of speech and religion, the equal rights of all Iraqis, and ensure due process.
In his February 8 Meet the Press interview, President Bush avowed that Iraqis would not establish an extremist Islamic regime: "The reason I can say that is because I'm very aware of this basic law they're writing," He stated further that three Governing Council members had assured him that the future constitution would enshrine minority rights and freedom of religion.
However, influential members of the Governing Council have very different ideas and have been pushing strenuously for an Islamist state. In December, the council replaced Iraq's 40-year-old personal status law with Islamic personal law that that would have been devastating to the place of women. CPA head Paul Bremer vetoed the switch. Nevertheless, the current council president, Mohsen Abdel-Hamid, the head of the Islamic party, has now called for the adoption of Islamic law across the board.
The council is currently holding closed-door sessions to hammer out the basic law's contents. While Bremer has wisely said that he will block any version making Islam the chief source of law, the drafts now being debated, a week before it is due to be finalized, contain major loopholes that could allow a reactionary version of Islam.
The major problem is that the drafts do not establish an individual right to religious freedom. This was addressed in an important letter sent to National Security Advisor Condoleezza Rice from Senators Sam Brownback, Rick Santorum, Joseph Lieberman and Lindsey Graham on February 10, and the senators also suggested changes to rectify it.
The senators note that the "religious freedoms enumerated in the draft are expressed mostly in terms of group rights rather than the rights of individuals." While elsewhere the document speaks of individual rights to education, fair trial, and work, in contrast rights such as religious freedom are given only to 'people' or religious groups. "'People' is an ambiguous term that resonates in our own Constitution one way but is construed by the U.N. Human Rights Commission and by many of the world's dictatorships as a means to empower the state to override the freedom of individuals."
If only group rights to religious freedom are enumerated, the effect will be to give religious groups power over their members, but give those members no religious rights of their own. Islamic authorities could use them as the basis for forcing Muslims to submit to one authorized form of religion.
The senators point out the implications:
Without individual rights to religious freedom, a Muslim woman's basic legal rights could be determined by her family's imam. Despite the provision in the draft guaranteeing gender equality, Iraqi Muslim women may not have the right to opt out of Islamic dress codes, or discriminatory inheritance and marriage structures. A similarly strong provision on equal rights for women in Kuwait's constitution has been overridden by Islamic clerics to deny women the right to vote.
Reformers and dissidents from prevailing orthodoxies would be vulnerable to state blasphemy prosecutions if they do not have individual protections for freedom of belief. In Iran, Afghanistan, Pakistan and Sudan, persons who have proposed more liberalized versions of Islam have suffered severe punishments under state blasphemy prosecutions.
The solution the senators offer is a simple one, to make "basic human rights adhere to individuals rather than to the state or religious leaders." They write, "In our judgment the modest addition of the words 'everyone' or 'individual human rights' to the key provisions of the draft can effectively put this issue to rest."
Religious freedom is also threatened by provisions that pronounce "Islam as... 'a basic source' of law, which could be interpreted as a negation of the bill of rights." The senators' concern is that if an undefined Islam is the only specifically recognized source of law in the constitution, then it could trump human-rights guarantees thought contrary to someone's version of Islam. As an alternative, they urge that the interim constitution specify other basic sources of law, particularly "the principles of democracy, pluralism, rule of law, and individual human rights."
They also stress the importance of clarity. "We appreciate that deliberate ambiguity may often be useful in permitting matters to move forward. However, on questions as critical as whether basic Iraqi law does or does not protect the freedom of individuals to religion and expression, we believe the governing law must be free from doubt from the moment of its issuance."
In Iraq's heated atmosphere, with growing Islamist intimidation, clarity is needed because the key question will be not what apparently conflicting clauses might mean to a conscientious judge, but what they can be made to mean under pressure from Islamists.
Such guarantees concern more than human-rights advocates: It is "a matter of America's own security interests to ensure that reformers are afforded the political space to identify, debate and develop the more tolerant principles within the religion of Islam." As the senators said in their letter, "We believe that long term stability and freedom will be unattainable — and American sacrifices will have been in vain — without strong legal protections for individual freedoms."
If President Bush's "forward strategy of freedom in the greater Middle East" is to be more than a promise, then these are guarantees that America must fight to entrench in the fundamental law. They are the legacy that can live the longest in an independent Iraq.
Paul Marshall is a Senior Fellow with Hudson Institute's Center for Religious Freedom.