[Editor’s note: Due to the rapidly changing situation in Iraq, the author plans to write a follow-up article as an update to this article.]
Monday, March 8, 2004, finally saw the signing of the Transitional Administrative Law (TAL). The TAL is the interim constitution of Iraq, set to go into action by June 30, 2004 and to stay in force until a permanent charter is issued. It has been described as “the most liberal” charter that the Middle East has seen, stating in its own wording that “the system of government in Iraq shall be republican, federal, democratic, and pluralistic.” And indeed, the constitution carries the trappings of Western liberalism, with both the allowance of rights and the acknowledgment of private property in the second chapter of the TAL. Liberties for the common Iraqi are further guaranteed with an attached bill of rights that has thirteen articles. But there is a flaw about which most people seem to be either unaware or callous. And what makes matters worse is that ordinary Iraqis, not just outside commentators and observers, appear oblivious as to the contents and import of the constitution. Such ignorance would be of little comfort to liberals (not necessarily American-style, pro-Democrat/third party left liberals) and of considerable advantage to demagogues, theocratic or not. And although freedom of religion is granted under the TAL, there is no establishment of separation between religion and state. Rather, Islam is held in Article Seven of the constitution to be the state religion of a new Iraq.
Article Seven in the charter holds specifically that “Islam is the official religion of the State and is to be considered a source of legislation,” and that “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.” Earlier, in Article Three of the TAL, it is held that “no amendment to this Law may be made except by a three-fourths majority of the members of the National Assembly and the unanimous approval of the Presidency Council.” The rest of the article then goes on to say that no proposal for an amendment may violate either the letter or spirit (or both) of the interim constitution. But there was not a single word for separation.
Of course, the road to theocracy may not be so clear-cut. From The Economist of March 13, 2004, Coalition Provisional Authority chief L. Paul Bremer “implies that he will veto any constitution making Islam the main source of law.” Perhaps so, but a veto from Bremer may appear to Iraqi lawmakers as an arbitrary infringement of their ability to govern. A statement in the TAL calling for mosque-state separation (and not only mosques) would only strengthen Bremer’s position should he decide to veto. However there is no such provision, thus leaving a hole in the making of a liberalized Iraq.
Such a hole in the Iraqi transition from provisional state to permanent is dangerous. At best, such a loophole may go unexploited by demagogues and religious revolutionaries. But the worst prospects would be the rise of an Iraqi theocracy and the bitter acknowledgement that Coalition efforts to “liberate” Baathist Iraq were all for naught. And with regard to the unfolding of events in war-torn Iraq, the latter appears likely.
Although major combat operations in Iraq were declared to have ended on May 1, 2003, the conditions there are still unstable. This is easily exemplified by the frequent attacks committed by militants who are none too tolerant of the Coalition’s, and especially the United States’, presence as occupier and administrator; the looting that occurred shortly after the allied occupation of Baghdad; and the sluggishness in restoring water and electric supplies. And since dismal conditions tend to breed extremist sentiment (yet another example would be Hitler’s rise to power in Germany), one should not be surprised if the common people become taken with promises of law and order along with prosperity. Should the insurgent party gain a majority in every branch of the interim government, there will be a political permanence that would certainly not coincide with the more idealistic justifications for the American-led assault on Hussein’s Iraq, namely, human rights and emancipation from a barbarous dictator. Since the Kurds seem more interested in autonomy and the Iraqi Communists have yet to make serious headway within the Iraqi general public in this present day, there are still the religious fundamentalists who may constitute a potent political force (and also a possible force for autocracy). These fundamentalists may dominate the government by dint of empty, populist promises to a disenchanted populace; overlook and even override legal statutes for the sake of “emergency”; and pass laws that would make for a theocracy in Iraq. Thus a written clause for separation between religious and political institutions must be included so as to prevent a bill that may mandate the setting of Islam as the sole legal source from passing; show that even elected officials may not hesitate to violate the integrity of the charter if the clause does indeed get broken; and forestall a theocracy of either the Shiite or Sunni sects (and perhaps even of the Christian sort. A Washington Post article by Sewell Chan, however, mentioned an Iraqi Christian who wished that the charter provided for a thoroughly secular government). These two sects are the main religious groups in Iraq, and both may have their share of theocrats.
The Shiites, led by clerics such as Moqtadah al-Sadr and Ali al-Husseini al-Sistani, constitute around sixty per cent of the Iraqi populace. Having seen the end of Sunni-dominated rule which had seen various historical incarnations, they no longer intend on chafing under others. They appear to be politically significant, and seem to be an acknowledgeable force on account of the postponement of the interim charter’s signing. The ratification, which was to be held on March 3, 2004, was stalled due to bombings on Shiite houses of worship in the day prior. On March 5, in which the previously-postponed signing was to take place, Shiite members of the Iraqi Governing Council backed out and subsequently consulted with al-Sistani. Their complaints were twofold. The first was dissatisfaction with the requirement that a referendum to be held in 2005 for the validation of a future permanent charter runs the risk of cancellation should two-thirds of voters in any three Iraqi provinces choose to vote for rejection, regardless of whether or not there would be a majority of votes in support (The Kurds happen to dominate three provinces). The second was aimed at the structure of the new Iraqi presidential office. The TAL held that a single president and two accompanying authorities will be chosen. The Shiite dissenters called instead for a presidency that would rotate among three Shiites, one Kurd, and one Sunni. As one can see, Shiites in the executive branch of the government would thus command a likely three-to-two advantage. But the interim constitution received the endorsement of the Shiite members of the Council on March 8, 2004. Although no changes were made at the time, the possibility of revision exists when talks over the TAL clauses in dispute convene on April or May of 2004. Nonetheless, the delay in signing demonstrates the power that Shiite Muslims hold over Iraqi politics. Furthermore, the objections harbored and alternatives offered by the Shiite members of the Iraqi Governing Council seem to imply that they wish for a Shiite-dominated, centralized regime.
Some may argue, though, that the Shiites may not create a theocracy along the lines of Iran under the Ayatollah Khomeini. According to David Rieff in an article for The New York Times Magazine, Shia Islam “cannot be the organizing principle” in Iraqi affairs on account that the Shiite presence in Iraq was only somewhat recent (having developed in the 1700s and 1800s) and was confined to the cities. Furthermore, the Shiites are not as radical as their Sunni counterparts (al-Qaeda, for one, is a Sunni-commanded network). But to rebut, a despotic regime (theocracy as an example) does more than merely rely on slogans, banners, propaganda, and ideology; brute force and the threat of using such force are required to preserve the actual existence of the regime. Shiite groups such as the Fifteenth of Shabaan demonstrate willingness to exercise force. And even though the Iraqi Shiites may not have a strong historical background, they are still of political importance in present-day, postwar Iraq.
The other argument to be addressed is that the Shiites are not the ones gone radical; rather, the Sunnis are. Perhaps, but nonetheless the power of Iraqi Shiites should not be underestimated. Furthermore, Shiite militancy in Iraq can be seen with regard to the armed clashes between Coalition forces and cleric al-Sadr’s followers. In the same article for the New York Times magazine, Rieff quoted an American official who said: “We can fight the Sunnis. But we can’t fight the Shiites, not if they organize against us. There are too many of them.” Rieff himself goes on to say near the ending of his piece: “If the Shiites have taken center stage, they have done so by default.” As for Sunnis, Kurds, Communists, and the Iraqi National Congress, Rieff noted just prior to commenting on the Shiites that they do not have the popular support needed to act as effective opposition forces should the democratic process be fully implemented in Iraq. While political checks may not exist to counter the possibility of a Shiite-led theocracy, there still ought to be legal checks.
As for Sunni Muslims, they constitute a lesser percentage of the Iraqi population. Nevertheless, the more extreme Sunnis may also constitute a threat to Iraqi liberty. Since Sunni-dominated rule dating from the Ottomans to Saddam Hussein has been effectively terminated, there is a chance that Sunni legislators and activists may demand that they be granted some form of protection from majority rule wielded by their Shiite counterparts. Cynically speaking, a Sunni-led autocracy with Islam as the state-endorsed faith (along with a civilian-controlled military as mandated by the TAL) may seem to provide Sunni Muslims with the ultimate protection. Such vaunted protection has a possibility of being secured since the Sunnis are a majority in the Baghdad populace; a State Sunni Council was founded in December 25, 2003, which united Salafi and Sufi Muslims along with the Muslim Brotherhood (also called the Muslim Brothers); and an affiliate of the Muslim Brotherhood known as the Iraqi Islamist Party holds a seat in the Iraqi Governing Council. In short, influence of population at a major city, political organization, and a political operative within the Council may allow Sunni Muslims to gain preferential treatment.
Furthermore, the Sunnis have presumably been the more-militant Muslims (as mentioned before and also as a matter brought up by Fareed Zakaria in the March 15, 2004 issue of Newsweek). So extreme are they that they are willing to employ violence against Shiites. If Sunni fundamentalists are so willing to purge their own and/or those of other sects, there is little question as to the respect, or lack thereof, that they would have for nonbelievers. And such militancy should be checked with the enactment of a secular state and a wall separating religion and government, both of which will prevent Sunni extremists from imposing their interpretation of Islamic law and thus keep them relegated to an oppositionist status marred by legal controversy (violence against others can be deemed illegal by a court of law, after all).
The Transitional Administrative Law of Iraq carries a grave flaw. It has no provision for a wall between houses of worship and houses of governance. Given the instability of postwar Iraq, a party for theocracy may be able to gain a majority within the provisional regime, defy the constitution on account of “convenience,” and establish an autocracy partial to a religion or a religious sect. The loophole in the charter that would precipitate such a dismal scenario must be sealed. If not, Iraq will have a door ajar for theocracy.
 Not everyone appears uncaring of such a problem though, writers of the Beverly LaHaye Institute (an affiliate of Concerned Women for America) and the Ayn Rand Institute (initials ARI) expressed some concern on the matter. But whether or not they get a hearing from the Coalition Provisional Authority, the Bush Administration, and the entire United States federal government would constitute a different story.
Janice Shaw Crouse of the Beverly Institute also mentions with consternation the fact that Islam will be the state religion in post-Baathist Iraq as indicated by an excerpt from an article titled “Sharia, Again in Iraq?”:
In the same way, if Islam becomes the state religion, religious liberty will be curtailed by the extremists who are already introducing resolutions and proposals that seek to overturn religious neutrality and women’s equality. We must never forget that religious freedom is essential to democracy and individual liberties.
ARI published a short opinion/editorial piece by member David Holcberg on the lack of separation, which shall be reproduced here:
The United States should demand that the new Iraqi constitution include an explicit separation of state and Islam. The threat posed by a new regime in which Islamic fundamentalism has political power is unacceptable. It makes no sense to have gone to war to overthrow a secular tyranny only to replace it with a religious one that is potentially far more dangerous to America. But to make such a demand would require the current administration to identify Islamic fundamentalism as our ideological enemy and to recognize that the separation of state and religion is a crucial requirement of freedom not only in Iraq, but here in America as well.
David Holcberg, Ayn Rand Institute
(Permission was obtained from both writers to quote their essays. However, the Ayn Rand Institute’s reproduction policy requires that I include the following copyright notice: This material is copyrighted by the Ayn Rand Institute and reproduced here with permission. Copies may be printed for personal use. To visit the Ayn Rand Institute’s MediaLink go to www.aynrand.org/medialink/.
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Bibliography (for the actual essay):
“Breakthrough or Procrastination?” The Economist, March 13, 2004, page 46
Sewell Chan. “In Interviews, Iraqis Profess Ignorance About Law’s Details.” Washington Post Foreign Service, March 8, 2004
Janice Shaw Crouse. Sharia, Again in Iraq? Beverly LaHaye Institute, February 5, 2004
Hamza Hendawi. “Iraqi Cleric Drops Opposition to Charter.” Associated Press, March 7, 2004
Hamza Hendawi. “Iraqis Sign Landmark Constitution.” Associated Press, March 8, 2004
Hamza Hendawi. “Shiites Won’t Sign Interim Constitution.” Associated Press, March 5, 2004
Dilip Hiro. Sectarianism in Iraq, The Nation, February 2, 2004
David Holcberg. “Letter to the Editor” on Iraq, Ayn Rand Institute, issued March 2004
Jim Krane. “Iraq Constitution Has Checks and Balances.” Associated Press, March 1, 2004
Law of Administration for the State of Iraq for the Transitional Period. The Iraqi Governing Council, signed on March 8, 2004
David Rieff. “The Shiite Surge.” The New York Times Magazine, February 1, 2004, pages 34-41
“Seeking a Voice.” The Economist, January 10, 2004, pages 41-42
“Summary of Iraq’s Interim Constitution.” Associated Press, March 8, 2004
Fareed Zakaria. “The Radicals Are Desperate.” Newsweek, March 15, 2004, page 50
Note of acknowledgment: My thanks to Daniel James Pagan for bringing me news on the interim charter of Iraq and to Benjamin Weinberg for giving me the link for the actual charter (before then, I was content with news reports and magazine articles).