Sharia In Iraq Again
Nathan Brown continues his invaluable work with this
Carnegie briefing on the role of Islam in post-Baathist Iraq. In particular, he explains very thoroughly something I've tried to suggest before but sort of fumbled: namely, that the enshrining sharia
(traditional Islamic law) in the Constitution won't automatically turn Iraq into a sharia
is complicated stuff, open to a wide variety of interpretations, and you can have a constitution that says "Islam law is the sole source of law in this country," yet still give executives and parliament wide leeway in deciding what that means when it comes to the gritty details of actual legislation. As Brown says, it all depends on how you set up the courts and judicial review:
For an Iraqi constitutional court to set a more exacting standard, it would have to be given several tools: access to the court would need to be relatively open, the court would need to have a fairly wide purview for examining legislation; and the body or bodies appointing judges to the court would need to be inclined to name some religious judges. Such matters are rarely spelled out in the constitution; generally most details of the structure and operation of a constitutional court are left for ordinary legislation.
So the constitution's not the most important thing in the world. On the other hand, Brown notes that if the constitution does enshrine sharia
as the sole source of law, it will certainly be an indication that the religious conservatives have the upper hand politically. That
, to be sure, could prove significant for a lot of future developments.
Brown also talks about personal status law—which unlike sharia
is far more specific in determining codes of conduct, at least within various traditions of Islam. Here, Iraq can go several ways. Either it can let each sect create its own Islamic courts for the implementation of personal status law, something likely to be very bad for women, or it can do what the leftist Iraqi regime did in 1959 and create a unified personal status law dictated from on high. This would give less leeway to local judges, who would simply apply the code, not interpret it, and personal courts would have less autonomy. Moreover, this would mean that the central government could in theory bend personal status law to accommodate more liberal views on women's rights, etc.
Now, in the real world, the religious Shi'ites, including the two major parties, SCIRI and Dawa, seem to want to get rid of the 1959 law and go back to local courts conducted according to traditional Islamic jurisprudence. Or perhaps they just want to modify the 1959 law and let Sunnis and Shiites each do their own thing. At any rate, this sort of thing likely won't be a constitutional issue (the Kurds would never go for it), though the majority United Iraqi Alliance may try to pass these laws through the legislature. On the other hand, even though the UIA has 51 percent of the seats in the Assembly and can pass anything they feel like passing, it's not clear to me that all of the women in the UIA, or the Chalabi-supporters, will want to pass legislation that puts the 1959 law in the trashbin. But this is going to be a hugely important issue.