August 25, 2005 | National Review Online

Open Door to Islamic Rule

Iraq’s constitution has major loopholes.

By: Eleana Gordon.

It was a relief for many Iraqi women and democracy activists when Thursday's deadline for Iraq's national assembly to vote on the draft constitution came and went. As the deadline loomed, many Iraqis frenetically rang the alarm bell about major loopholes in the constitution that open the door for Islamic law in Iraq. The delay buys a little time to work to close these loopholes — but it won't happen without U.S. support.

The draft presented to the national assembly on August 22 does not establish an Iranian-style Islamic republic, as many pundits and critics of the Bush administration have rushed to claim. And it does contain some remarkably good language recognizing Iraq's ethnic and religious diversity and individual freedoms. But, amidst all the positives, the clerics managed to slip in a few key articles that could give them the room they need to hijack Iraq's emerging democracy.

To begin with, there is the shocking stipulation that the state only guarantees freedom of expression, freedom of the press and freedom of assembly and peaceful protest “as long as it does not violate public order and morality” (article 36). This will make it too easy for a supreme court or a parliament dominated by fundamentalists to restrict the political space of their opponents on the tenuous grounds of “morality.” This exception could also be used to muzzle political organizations and parties by constraining their freedom of speech.

By the same token, although there may be justifications for restricting freedom of assembly in the name of “public order,” it is hard to see why that should apply to peaceful protests, let alone to the press or personal expression. This is exactly the kind of language that has been used in many pseudo-democracies in the Arab world to shut down political opposition.

Another major issue that women and secular Iraqis have focused on is ensuring that personal status (or family law) is not governed by religious courts. It was this issue that first galvanized the women's movement in Iraq in January 2004, when members of the SCIRI party (the Supreme Council of the Islamic Revolution in Iraq, which has close ties to the Iranian regime) tried to pass decree 137 that would have subjected family law to religious courts. The hundreds of women's groups that had formed in the year after Saddam's removal from power came together to lobby for the civil law that had been in place since 1959. Their campaign not only succeeded in repealing decree 137, but also led to a target of 25 percent of government positions for women in the Transitional Authority Law.

It appears decree 137 returned through the back door in article 39 of the proposed constitution which states: “Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law.” There is no mention of the civil law, which should remain the default court for all Iraqi citizens. The permission of both parties in a dispute should be required to move to a religious court setting. Otherwise — in a divorce case, for example — a wife could be forced by her husband to refer to a religious court. These crucial details regarding personal status law should not be left to parliament to define by a simple majority vote, they should be enshrined in the constitution.

But by far the most worrisome provisions are those relating to judicial review. In essence, a supreme federal court “made up of a number of judges and experts in Shari'a” would not only resolve constitutional disputes, but would also have veto power over the legislature and the ability revoke existing laws (articles 89, 90 and 91). It is completely impractical for the supreme court to review every law coming out of the legislature — the legislature would grind to a halt. More disturbing: It paves the way for an Iran-style body of theocrats to follow the path laid out by Iran's Council of Guardians after the Islamic Revolution, which revoked dozens of laws affecting women, such as their right to initiate divorce, on the grounds that they contravened sharia.

At the very minimum, the constitution should state that all the members of the supreme court be required to have accredited civil-law education. The drafters might also consider mandating that sharia experts cannot constitute a majority of the court and that it must include women and non-Muslims.

Nor should the constitution be allowed to remain silent on the mysterious “Supreme Judiciary Council” that is supposed to nominate the members of the supreme court, according to article 89. The constitution does not say how this supreme judiciary council is selected, how many members it has, or how long they will serve. It isn't even clear why such a court needs to exist — is this a council of guardians in disguise, accountable to no one, but able to control the laws of land?

It does not take much imagination to see how all the remarkable language elsewhere in the constitution recognizing Iraq's diverse religious and ethnic identity, guaranteeing the basic freedoms of all Iraqis, forbidding tribal practices that violate human rights and requiring that Islamic principles be balanced with democratic principles, could easily be negated.

The constitution is being driven by Iraqi interest groups, and ultimately will be approved or rejected by the Iraqi people. But for the next few days at least, the United States still has a lot of leverage. In its haste to see a constitution finalized, it must not sacrifice key principles of democracy. We must stand by those in Iraq who have been at the forefront of the battle for freedom and democracy. They are counting on us.