Draft Constitution Enshrines Islamic Law
At Least 27 Dead in Guerrilla Violence

Humam al-Hamoudi, the head of the constitution drafting committee in the Iraqi parliament, has called a leadership summit for Thursday and Friday to discuss the current draft. I interpret this move as a sign that the committee itself is deadlocked. The hope appears to be that the big party and clan leaders will be able to use their authority to settle otherwise intractable issues among themselves. One big stumbling block has been the rejection of federalism by the Sunni Arab delegates, want a French-style centralized government.

The Iraqi newspaper al-Sabah has published a draft of the Iraqi constitution, the language of which is very closely modelled on the Transitional Administrative Law, but which departs from it in key respects.

The draft's first paragraph is: "The [Islamic, united] Iraqi Republic is an independent state enjoying sovereignty, the form of government of which is republican, democratic, united (and federal)."

The parentheses are in the original and mark controversial phrases not yet decided upon. The religious Shiites want to call it "the Islamic Republic of Iraq." The Kurds want to call it "the Federal Republic of Iraq." But the Sunni Arabs reject the term "federal."

The second paragraph says: "Islam is the official religion of state, and is the fundamental source of legislation. It is impermissible to pass legislation that contradicts its essential verities or its laws (its essential verities about which there is consensus). This constitution safeguards the Islamic identity of the majority of the Iraqi people (in its Shiite majority and its Sunnis) and respects all the rights of the other religions.

This language, making it unconstitutional to legislate in contravention of the "laws" of Islam, is much stronger and closer to fundamentalism than the original language of the TAL. I remember debating with Faisal Istrabadi on the Lehrer Newshour in spring of 2004 about whether the TAL itself could be put to theocratic purposes, since it said that you could not legislate in contravention of Islam's essential verities. Faisal was proud of what was presumably his (and Larry Diamond's) language, contrasting essential verities with concrete laws. I pointed out that you could have judges who took those essential verities to include the laws as medieval jurists understood them. But in this draft you would not need a fundamentalist judge for that purpose-- the text of the constitution specifies that parliamentary legislation cannot contradict the shariah or Islamic canon law. This language really does make it an Islamic republic, if it is retained.

Paragraph 11 says, "Thought and practice, under whatever rubric, is forbidden that adopts racism, or declaring a Muslim to be an infidel, or terrorism . . . especially the Saddami Baath. It is not permitted for it to be part of political pluralism in the state."

The ellipses cut out language that seems to be proposed to make praising or instigating any of these things illegal. This paragraph probably is influenced by post-war German law making Nazi extremism illegal.

Racism is a horrible thing, but it may not be wise to try to make it illegal in general (as opposed to making it illegal in hiring practices and other sectors of life that materially affect people. You can only imagine the special section of police departments that would have to be devoted to keeping Iraqis politically correct. It sounds like a bad television pilot-- PC Blue. On a serious note, the stigmatization of the Baath Party is understandable. But if it spills over to a stigmatization of all ex-Baathists, it will only prolong the guerrilla war.

Paragraph 15 says "The [Shiite] religious leadership [i.e. Grand Ayatollah Sistani and his successors] has an independent character and a function of giving guidance insofar as it is an exalted national and religious symbol. (Some have reservations about this one.)"

This paragraph enshrines in the Iraqi constitution a position of giving "guidance" on the part of the highest Shiite clerical authority. The word used, "marja`iyyah", is a Shiite technical term for the grand ayatollahs. Although Sunnis have picked it up, it is not originally a Sunni term and the meaning here is certainly Sistani and his successors. In a worst case scenario, Shiite judges could use this paragraph to allow the Grand Ayatollah's fatwas to over-rule secular legislation. This move would be facilitated by the earlier paragraph that made it unconstitutional to legislate in contravention of Islamic law.

Paragraph 16 binds the government to safeguard the sanctity of the Shiite holy cities of Najaf, Karbala, and Kadhimiyah (perhaps Samarra as well) and to guarantee Shiites the freedom to engage in the rituals of visitation of holy mausoleums there.

The word used, `atabat, specifically refers to the Shiite shrines.

Section II, 6/M says, "The state guarantees basic rights for women and their equality with men in all fields, in accordance with the ordinances of Islamic canon law. The state will aid them to harmonize her duties to family with her work in society."

Since the ordinances of Islamic canon law do not actually bestow equality on women in every field, this paragraph is extremely ambiguous and could be used for patriarchal purposes.

Alissa Rubin of the LA Times notes that the new US ambassador in Baghdad Zalmay Khalilzad has expressed reservations about some of these provisions.

I fear she has been somewhat misled about the two paragraphs concerning the place of the religious leadership and the holy cities. The word used in the former is the "marja`iyyah," which is a clear reference to the Grand Ayatollah of Najaf. The word used for the latter is `atabat, literally "thresholds" i.e. of the Shiite Imams. This can only refer to Najaf, Karbala and a few other sites. There is a different word for, e.g., Sufi shrines. Both of these paragraphs enshrine specifically Shiite leaders and sites in the Iraqi constitution.

Nathan Brown's analysis of the constitution drafting process (pdf) is available online.

Meanwhile, Reuters reports deaths in the guerrilla war:

In Baghdad, guerrillas shot up a minibus transporting factory workers near Abu Ghraib to the west of Baghdad, killing as many as 18 and wounding 9.

Also in the capital, guerrillas assassinated 3 employees of the Ministry of Health.

In a third incident in Baghdad, guerrillas injured a policeman when they attacked the Major Crimes Unit in the Karkh quarter. Two of the guerrillas were captured.

In Baquba, guerrillas assassinated Saad Yunus al-Difa`i, head of the Sadr office and a follower of Muqtada al-Sadr.

In southern Mosul, Iraqi army troops and guerrillas fought a running street battle in the mostly Arab quarter of Risala, leaving 2 noncombatants dead and 6 civilians injured.

In Tikrit, guerrillas killed a Pakistani truck driver.

In Basra in the deep south, armed men assassinated a police officer as he was driving in his car. A child was also killed, and 3 civilians were wounded.