From the new Iraqi interim constitution (full text here):
Article 7A: Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice.
Gee, thanks for clearing that up folks. That’ll keep that new Supreme Court of yours busy and out of trouble!
Sarcasm is cheap, of course. I was discussing this with M. last night and we concluded that 1) Americans place way more importance on constitutional law than anyone else does anyway; 2) They’re going to redo the whole thing once they have an elected government; and 3) It’s not like there’s a simple answer to the state vs. religion question just lying around waiting to be picked up, and the IGC simply doesn't have the authority to present a final answer to that question even if they had one in theory.
The trouble is, secularization of the state and privatization of religion is not necessarily the full and complete answer for Iraq as it was for us. The theory of natural rights that underpins our particular version of democracy is actually an iteration of Christian theology, and none of the rights and freedoms guaranteed in the Constitution and Bill of Rights directly contradicted the Christian values of their signatories. However, many aspects of Islam as traditionally interpreted do directly contradict rights laid out in the interim constitution, most importantly those relating to the status of women and non-Muslims. As starkly undefined in the Article, we have the possibility of the courts emptying either the notion of democracy & human rights or Islam of meaning in order to harmonize the two, and the judiciary will be appointed by the legislature, which may ultimately make it a faction fight. But reaching a true consensus on the issue that can form a lasting foundation for a democratic Iraq will require a great deal of public discussion and compromise, i.e., democracy in action. What is needed to resolve the issue, in other words, is a political context that would be best guaranteed if the issue were already resolved. The conundrum is too many for me at the moment, I hope the Iraqis have better luck with it.
Clarification in response to some reader comments: Well, yes, I do believe human rights are a universal value. The operative phrase, and perhaps I should have been more clear, is "traditional interpretation" of Islam. Islam at the level of the text contains many currents, including language that can be construed to support both the notion of the dignity of the person as a person, and as conferring a positive obligation on Muslims to contribute to the evolution of human institutions in the direction of the spirit (rather than the letter) of the Koran. It is a short jump to point to the demonstrable advantages of political freedom and human rights as providing the obvious path, and many Muslims who live in democratic countries have done so. However, orthodox Islamic theology has unfolded within a specific history and under forms of political domination that have tended to suppress these possibilities at every turn. How to transition from the latter to the former, and how to formulate democratic institutions in Islamic countries in a way that allows citizens to be confident that those institutions will authentically express their own (rather than a foreign power's) values within a human rights framework, is the issue here.
I'm not even pretending to know how that will or might be done, btw. But I do think the current debate we're having over gay marriage demonstrates how divergently moral or religious values can inform human rights interpretations. Is it possible to simply require people to abondon their previous beliefs in order to make democracy work, when these are the same people who must uphold democratic institutions to keep them working? The political reality is: This is as dominated by the U.S. as Iraqi lawmakers are ever going to be, and this is what they written. It does seem as if a fairly serious issue with huge stumbling-block potential has been put off for another day.
Some More Reader Discussion:
M. (who is a LAWYER) said: One thing that struck me about the phrasing when I was reading it last night:
No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period.
(Italics added.) If a court can be constituted that can be either depended on to interpret that "universally agreed" bit strictly, or that has members with enough conflict on what's universally agreed to be Islamic, there's at least a built-in brake on invalidating laws because they're inconsistent with Islam (and, conversely, on upholding laws solely on the basis of their Islamic character). The principles of democracy and the bill of rights don't have to be universally agreed upon to be enforceable, but the Islamic elements do. Also, Islamic law is at best coequal with the other constitutional provisions, which means that it can't (in principle) trump the constitutional provisions regarding search and seizure, trials, and criminal punishment.
Granted, I don't hold out a lot of hope based on constitutional phrasing, for the reasons we discussed. First the constitution has to be taken seriously enough not to be ignored or routinely modified according to the government's whims. Then, even if they reach the necessary sort of legal culture for it to matter much, they have to interpret the phrasing in a particular way; our own constitutional history is ample evidence that sentences that look plain and unambiguous to one person will be interpreted wholly differently by another. But for whatever it's worth, it's currently possible to minimize the relevance of Islamic law while still following the text of the Iraqi constitution, especially given the existence of wide varieties of Muslim opinion and practice within the country.
I replied: I noticed that too, and wondered how much of a wiggle word "universal" was meant to be. It could mean all Muslims everywhere, which would in effect make it meaningless, but it could also refer merely to agreement among the four schools of Islamic law, which is the definition of at least Sunni orthodoxy. (Insert uncertainty about what the definition of "universal" or orthodox means in a Shia context here). A lot depends on whether you have Islamic or secular judges parsing the text. And all the other factors you've mentioned.
M. replied: If I got to use the orbital mind control lasers in this context, I might stick in an early ruling requiring a unanimous decision by the Supreme Court to overturn a law because it's inconsistent with Islamic orthodoxy (since, after all, if they can't agree on it, it can't be "universally agreed-upon"), and likewise, if there's a perceived conflict between other constitutional principles and Islam, the latter wins only if they all think it should.
Granted, I don't think that's likely. But I see some hope in the fact that Iraq has such a Sunni/Shia split and that the rules are set up to push for geographic and ethnic diversity on the court. Each office gets three nominees agreed to by the Higher Juridical Council (which includes judges from all the major regional courts) one of whom is selected by the Presidency Council. That seems likely to force compromise and balancing acts in constituting the Court, rather than allowing any faction to pack the court with its sympathizers.
Of course, if there is broad consensus among the various groups favoring illiberal Islamic rulings, Iraq is probably stuck with them. But it's arguable that there's not much we can do about that. We have our own issues with the conflict between democracy and basic civil rights, which we're still dealing with imperfectly despite a two-and-a-quarter century track record. If the rights to free communication and petitioning for the redress of grievances remain intact, at least there's a mechanism for trying to fix the problems in the long run, and constitutional principles of equality and individual rights to counter them. If this constitution is applied seriously and succeeded by a reasonably similar permanent constitution,1 they at least have a chance for a decent system.
1If it is. The Federal Republic of Germany never got around to passing a constitution to supersede the "temporary" Basic Law enacted in 1949. (After reunification, they decided to officially make the Basic Law the constitution, but AFAIK that wasn't the original plan.)
And later, M. added: Other random interesting bits:
The anti-Second-Amendment ("It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in accordance with the law.")
Explicit legal equality regardless of "gender, sect, opinion, belief, nationality, religion, or origin" (which, again, will interact unpredictably with Islam as the state religion).
The right to "security, education, health care, and social security." One wonders how that will be implemented, if at all.
The ban on military participation in the government in any way other than voting.
Very limited parliamentary immunity. (Basically, you can't be arrested during a parliamentary session unless you're committing the crime during it, and you're immune from libel/slander charges for statements made in the assembly, but otherwise parliamentary office doesn't protect you from arrest.)
Requirement that National Assembly members have a high school diploma.
I note that there's nothing in the various constitutional provisions restoring citizenship and either property or compensation for it to emigrés that excludes Jews of Iraqi origin. (Though if I were one, I might wait a bit to exercise it till there was a body of precedent involving non-Jews, and a court system that appeared to be bound by precedent.)
Honestly, while there are unsatisfactory provisions, overall it looks fairly good to me. It at least has the potential to produce the sort of federal, separation-of-powers system that creates enough conflicting constituencies to make tyranny difficult. If it's implemented, and if it's not ignored or modified or interpreted into ineffectuality, or replaced by a much worse non-interim constitution in two years. (Huge ifs, certainly.) It would be difficult, I think, to give Iraq a seriously Islamist character without running roughshod over the rest of the constitution, which in turn suggests that the establishment of Islam as a state religion in the document isn't that important in and of itself.
BTW, for comparison, the 1970 Ba'athist Constitution of Iraq is also available on the web (via a Beirut law firm, apparently).