A lot of people are worried that the rights of women, non-Muslims, and Iraqis in general will be trampled under the new Iraqi constitution, because the Constitution enshrines Sharia, believed by many to be a violently oppressive system of government. Conceptually—and in certain cases historically—the argument is valid. It appears, though, that the Iraqi constitution contains a healthy blend of support for the inalienable rights of humanity with a dependence on Islamic law. But as are all constitutions, the Iraqi Constitution is a framework that needs to be implemented, so it remains to be seen how Iraqi life will be affected by the Sharia going forward.
An overused and actually incorrect cliché of the modern world says “You can’t legislate morality.” The reality is that prohibitions against such things as murder, theft, and sexual abuse have their foundations in morality and religion. Most law in the world today is based on morality and religion. Sharia is one perspective on how morality and religion should affect everyday life through the application of law.
Sharia is a part of law in many Islamic nations, but to a surprisingly varying degree. While in Iran and Saudi Arabia all secular law is Sharia-based, in countries such as Turkey, it is applied very leniently. In countries such as Bangladesh, Indonesia, and Pakistan, Sharia plays almost no role in law. Iraq in 1959 softened the applicability of Sharia in its law, but it remains to be seen whether it will be applied more stringently in Iraqi life from here on out. The relationships many Shia in the new Iraqi government have with members of the Iranian government (also Shia) portends a greater emphasis on Sharia in Iraqi culture than heretofore, but we’ll see.
Only five punishments are delineated by the Quran as part of Islamic law. They are (1) flogging for drinking of alcohol, (2) flogging for fornication and stoning for adultery, (3) flogging for false accusation of fornication or adultery, (4) amputation of a hand for theft, and (5) amputation of a hand (or death if offense results in the death of the victim) for highway robbery. These punishments, outside of Iran and Saudi Arabia, are almost never applied. Sharia, most commonly applied, only affects marriage, divorce, and inheritance.
Other punishments, interpretations, and implementations of Sharia are based on the Hadiith (traditions of Mohammed). In some nations and cases ijma (scholarly interpretation) and qiyas (logical application of Quranic principles to modern problems) also play a part.
The following references are made to Sharia in the Iraq Constitution:
Article 2:It is important to note that all other religions—as well as religious properties—are protected under the Constitution. A few other excerpts from the Constitution are appropriate to include here as well:
First: Islam is the official religion of the State and it is a fundamental source of legislation:
A. No law that contradicts the established provisions of Islam may be established.
Second: The Federal Supreme Court shall be made up of number of judges, and experts in Islamic jurisprudence and law experts…
Article 2:In my opinion, the Iraqi Constitution balances a respect for Islam and Islamic law with a respect for other religions as well as a multitude of liberties that have traditionally been considered western.
B. No law that contradicts the principles of democracy may be established.
C. No law that contradicts the rights and basic freedoms stipulated in this constitution may be established.
The law is sovereign. The people are the source of authorities and its legitimacy, which the people shall exercise in a direct general secret ballot and through their constitutional institutions.
Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status.
Every individual has the right to enjoy life, security and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.
Equal opportunities are guaranteed for all Iraqis…
A handful of provisions exist in the Constitution that I disagree with, in most instances because certain rights guaranteed by the government require the effort of private sector enterprises to accomplish. (A more detailed analysis of the Iraqi Constitution will be the subject of future posts.)
In essence, it is my opinion that the Iraqi Constitution, if followed as it is written, is a pathway to peace and liberty in Iraq.
Posts in this series:
Iraqi Constitution and Sharia
Iraqi Constitution - Preamble
Iraqi Constitution - Fundamental Principles
Iraqi Constitution - Liberties
Iraqi Constitution - Branches of the Federal Government
Iraqi Constitution - Federal Powers
Iraqi Constitution - Regional Powers and Transition to the New Government