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Founding Freedoms

Nina Shea

On Saturday, Iraq is expected to adopt a new constitution in a national referendum. It will be a significant milestone in the establishment of an electoral democracy in the Arab Middle East. It is the only place in that part of the world where leaders of disparate and hostile groups have engaged in political give and take resulting in a social compact for their nation that is put before all Iraqi citizens in an inclusive and transparent vote.

The Bush administration, particularly the president himself, deserves credit, for this is no small achievement. While Hudson’s Center for Religious Freedom now counts 119 electoral democracies in the world, not one is an Arab nation; come December 15, when elections are to held for a new government, Iraq will take another major step towards becoming the only one.

Still, those of us who work to defend religious freedom internationally are deeply troubled by the soon-to-be adopted constitution. We are concerned that it may be the first step in creating what is called an “illiberal democracy,” or even in undermining democracy altogether. We fear the powerful role given to Islam in the constitution—a role that is likely to negate the positive language on religious freedom and other individual human rights.

The new constitution fails to guarantee the fundamental human rights and freedoms contained in the United Nations Universal Declaration of Human Rights and that are consistent with America’s core values and President Bush’s articulated foreign-policy goals.

Instead, it sets forth two competing and diametrically opposed visions of society: one based on individual rights and principles of equality, and the other grounded in a sharia (Islamic law) regime of group rights, in which rights are conditioned on a person’s membership in a discriminatory hierarchy of groups (male or female, Muslim or non-Muslim, etc.), and where the basic rights of all individuals are subordinated to the group.

The provisions of the bill of rights are subject to ambiguities and contradictions contained elsewhere in the constitution. For example, the carefully crafted provisions asserting rights to religious freedom and equality before the law are placed in doubt by the repugnancy clause of Article 2,which states that “no law that contradicts the established provisions of Islam may be established” (in contrast, Article 2’s vague language that no law may contradict “the principles of democracy” and the “rights and freedoms stipulated in this constitution” is self-referential: it simply says that unconstitutional laws are unconstitutional).

Another clause in Article 2 empowers the government to guarantee “the Islamic identity of the majority of the Iraqi people.” The terms “established provisions of Islam” and “Islamic identity” are left undefined and are likely to be interpreted by sharia judges on the supreme court in such a way as to negate key human rights.

In its recent survey on women’s rights in 17 Middle East and North Africa, Freedom House’s Center for Religious Freedom found that guarantees for gender equality, which were set forth in every one of these countries’ constitutions (save Saudi Arabia, of course), were systematically and pervasively undercut by other legal provisions based on sharia law.

Compounding this, the new constitutional language concerning the application of personal-status law in Article 39 is obscure and, in contrast to its direct reference to religious law, does not clearly assert the right to use civil law in determining such commonplace matters as marriage, inheritance, child custody, divorce, and alimony. The reference to “choice”—rather than a “right to civil law”—regarding personal-status law in Article 39, means that any recourse to civil law regarding family matters is wholly dependent on the continued validity of the existing 1959 law regarding personal status—and this cannot be taken for granted in light of last year’s attempts by Iraq’s rulers to rescind it.

The constitution leaves open the crucial question of how to reconcile these conflicting political ideologies—one based on individual freedoms and rights and the equality of all, and the other based on ensuring that society conforms to religious interpretations that discriminate according to gender and religion or belief.

Under Article 89, the Supreme Court will have the important role of “interpreting the provisions of the constitution,” and ultimately settling this defining question. Hence, it is additional cause for great concern that, under Article 89, the supreme court is to include a yet to be determined number of “experts in Islamic jurisprudence,” as well as of judges who are “law experts.”

In specifically requiring the supreme court to include sharia experts who need not have an education in civil law, the new constitution follows a supreme-court model found only in Iran, Saudi Arabia, and Afghanistan. The first official act of the Afghan supreme court was to press blasphemy charges against the only female member of President Karzai’s cabinet after she criticized sharia rule. Since then, it has ruled to ban all cinema and female vocalists. Sharia judges in Iran rig elections, and in Saudi Arabia have ruled that democracy itself is “unIslamic.” Clearly much more is at stake than the rights of Iraq’s non-Muslim minorities and women.

Article 5 of the new Iraq constitution claims that “The law is sovereign. The people are the source of authorities and its legitimacy.” But under Article 89, “experts in Islamic jurisprudence”—that is, those men of the religious elite who claim to know Divine Will—may well be the ones who determine the direction of the state.

The new constitution is deceptive in asserting that its human-rights provisions are “guarantees”—since the actual status of basic rights is left to future decisions by sharia judges, who may decide that they conflict with their version of Islam and so are null and void.

The eleventh-hour agreement reached this week, after the Sunnis threatened to vote “no” in the constitutional referendum, means that amendments to the constitution can now be proposed and voted on in the first half of next year. The administration should now use its considerable leverage—leverage that was effectively used to secure a federal form of government for the Kurds and concessions for the Sunnis—to require civil-law education for all the judges who serve on the supreme court, and require other such amendments to ensure that religious freedom and other fundamental human rights are finally guaranteed in the country’s founding document.

Iraq’s future as a democracy depends on it.

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