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Constitutional Concerns: Religious freedom is at risk in the new Iraq

John F. Cullinan & Nina Shea

Iraq’s proposed constitution, adopted Sunday without a vote by Iraq’s interim parliament, marks both a significant achievement and an imperfect compromise, as are all such political dispensations shaped by conflict among competing factional interests.

This constitution offers a decidedly mixed picture, with grounds for hope and grounds for concern. Among the latter are potentially grave risks for religious freedom, the cornerstone of all basic human rights. How far does this document meet President Bush’s “non-negotiable demands of human dignity,” which in turn underlie the “forward strategy of freedom in the Middle East” in defense of U.S. interests and ideals?

In the absence of a definitive version of the text adopted Sunday, we are relying on the August 24 Associated Press translation, based on assurances from the State Department and private sources that subsequent revisions do not affect the particular concerns raised in this piece.

As long-time human-rights and religious-freedom advocates, we wish to highlight two basic features of the constitution where more effective and sustained U.S. attention are urgently needed, especially in light of the ongoing American expenditure of blood and treasure as part of the massive commitment named Operation Iraqi Freedom. Such attention is long overdue and urgently needed if the U.S. hopes to advance freedom in Iraq and the broader Middle East, the stated goal of overall U.S grand strategy.

Our first concern is the new constitutional “guarantee” of “the Islamic identity of the majority of the Iraqi people” in article 2. This was not part of the delicate balance over the paramount religion-and-state issue struck in Iraq’s interim constitution or Transitional Administrative Law (TAL), but it fulfills longstanding demands by Iraq’s most influential religious leader, Ayatollah Ali Hussein Al-Sistani.

This is a constitutional mandate of potentially unlimited scope than can only increase the already massive role of political Islam in Iraqi life. It will shape the overall context for the operation of these interlocking provisions: Islam as the “official religion” (as in the TAL); Islam as “a basic source of legislation” (not simply “a source,” as in the TAL); and the so-called repugnancy clause, whereby “No law can be passed that contradicts the fixed principles of Islam.”

By increasing the public role of Islam and thereby raising the stakes are not the prospects of further divisions among Iraqis also heightened, both between and within factions? Do these provisions increase the risk of official sectarianism, whereby the majority Shia impose their interpretation of Islam on minority Sunnis? In recent days, there has also been an alarming upsurge of intra-communal violence among Shia and among Sunnis, mainly over essentially religious issues. Again, doesn’t raising the stakes also risk further conflict and instability?

The second feature of particular concern is the dangerous ambiguity of article 39 dealing with the law of personal status, a legal category that includes marriage, divorce, custody, alimony, and inheritance matters. This particular provision and the surrounding legal context matter greatly, since it is precisely over these issues whether in Iraq, or in the U.S. or anywhere else that individuals most often come into contact with the law. Article 39 provides in full as follows: “Iraqis are free in the adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law.”

We fear greatly that this and other provisions are the opening wedge for the imposition of a regime of group rights, which are anathema to secure individual rights and protections and a recipe for wider civil strife based on narrow identity politics.

So far this particular issue has been reported almost solely as a matter of women’s rights, a set of concerns that nearly all Americans grasp and care deeply about. By now most Americans are aware that the new constitution risks overturning Iraq’s relatively progressive 1959 personal status law, which dealt with these matters through a modern civil law rather than a retrograde sharia that subordinates women’s rights.

The Administration is well aware of these concerns, thanks in part to the domestic politic salience of women’s rights and the embarrassing prospect that Iraqi women could lose rights and protections they enjoyed at least on paper during the Baathist dictatorship. Last week we submitted a set of technical fixes for unsatisfactory human rights provisions in the proposed constitution to very senior officials at the White House and State Department. Our urgent recommendation in this case was to set in stone an unconditional individual right for every Iraqi citizen for automatic adjudication of personal status matters under civil law in civil courts. So far we do not know the outcome, mainly because Iraqi negotiators were focusing almost exclusively on competing visions of federalism.

Yet this issue of group rights far transcends women’s rights alone, especially in the context of the prospect of Islamic law shaping all future interpretations of Iraq’s civil law. All traditional interpretations of sharia establish one set of rights for Muslim men, another for Muslim women, and quite another for non-Muslims. There is a serious risk that clerics will control constitutional and statutory interpretation, since article 90 mandates that “The Supreme Federal Court will be made up of a number of judges and experts in sharia,” according to a future super-majority (two-thirds) vote of parliament. By mandating the inclusion of sharia experts by definition “Islamic men of learning” (see here) the proposed constitution imposes Islamist legal strictures on the state’s highest civil court absent even in Pakistan.

We were not at all encouraged after a lengthy discussion in Washington last week with Ammar Al-Hakim, a very senior and very impressive Iraqi Shia cleric and political leader. He made the point to us and to the Washington Post (see here) that Iraq’s Shia religious parties seek “a stable and balanced Iraq where all sects will be treated justly and equally” but not one where all individuals are treated as such.

Religious minorities as well as women will suffer under Iraq’s proposed constitutional architecture. The provisions we’ve cited further reinforce the second-class status of Iraq’s already beleaguered Christian community, now roughly three percent of the overall population and rapidly shrinking. Iraqi Chaldo-Assyrians (more than half now live in exile) have long made disproportionate contributions to the life of their ancestral homeland, thanks in large part to a network of splendid church schools open to Muslims and Christians alike. It is these institutions that help explain the disproportionate numbers of Iraqi Christians especially women in the ranks of Iraq’s professional classes. And it is ironic to consider that some of Iraq’s most prominent Muslim political leaders notably Ayad Allawi and Ahmed Chalabi gained their excellent command of English at Baghdad College, a remarkable boys school run by American Jesuits that was shuttered by Saddam in 1969.

Iraq’s proposed constitution threatens to bring this ancient community one step closer to extinction. That is why Pope Benedict XVI met last Thursday with Iraqi Foreign Minister Hoshyar Zebari to “discuss the important topic of religious freedom … with reference to the text of the constitution.” It is almost unheard of for any pope to receive official visitors at his summer residence during the Roman holidays, when all of Italy is closed for business. But this unusual meeting reflects the depth of Vatican concern for Iraqi Christians. And it no doubt helps explain Benedict’s unusually pointed challenge regarding religious freedom in his August 20 conversation with Muslim leaders in his native Germany: “The defense of religious freedom … is a permanent imperative and respect for minorities is a clear sign of true civilization.”

The pope’s point is reinforced by the U.N.‘s Arab Human Development reports, written by a team of Arab scholars. Among their findings is that “In Arab countries where the political exploitation of religion has intensified, tough punishment for original thinking, especially when it opposes the prevailing powers, intimidates and crushes scholars.” Development, the report concludes, is thwarted by the resulting deficit of knowledge and innovation.

Moreover, such repression affects not only scholars but also the whole range of those who would challenge and question the prevailing order. Without the political space to reform and dissent, civic society is restricted and Islamic thought itself is unable to evolve and modernize beyond official dogma. Najaf’s view of the non-Islamic world as the detested realm of the “infidel” could become Iraqi state ideology if the ambiguity of the constitution is allowed to usher in Islamic rule.

The group rights for sect and religion and ethnicity that are secured in the draft constitution, thus, may actually work against individual freedom and are no substitute for it.

These are issues U.S. policymakers need to get to grips with urgently as our best and bravest are fighting and dying in Iraq.

For the ultimate logic of a regime of group rights inevitably fractures political communities into ever-smaller and ever-more antagonistic sub-units, as individuals seek out the company and protection of their own kind. It leads, in other words, to situations like the violent disintegration of Yugoslavia in the 1990s, a disaster with which we both have much unhappy experience at first hand.

As the former president of Macedonia (Todor Gligorov), summed it up in this chilling aside: “Why should I be a minority in your country when you can be a minority in mine?”

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