Monday, May 15, 2006

The Iraqi Constitution and Sharia

Summary: Many strident voices have claimed that American troops are dying for nothing more than the opportunity for another Islamic nation to apply Sharia (Islamic law) to oppress its people. The following is a discussion of how Sharia is applied in the Islamic world and what we might expect its implementation to be in the new Iraq.

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:
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.

Article 89:
Second: The Federal Supreme Court shall be made up of number of judges, and experts in Islamic jurisprudence and law experts…
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:
Article 2:
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.

Article 5:
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.

Article 14:
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.

Article 15:
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.

Article 16:
Equal opportunities are guaranteed for all Iraqis…
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.

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

4 comments:

Matt said...

"A. No law that contradicts the established provisions of Islam may be established." Right there is the main problem. What about all the Christians in the south near Umm Qasr? Will they have to stop selling liquor because it is haram (forbidden)? Will all the non-Muslims be dhimmis and have to pay poll and land taxes? Also, how will they apply flogging and stoning for adultery? In Iran, if a woman is raped, she is hanged or stoned for "acts incomparable with chastity". If she defends her honor (such as one seventeen year old did, her name is Nazanin and she is going to be hanged), she is hanged for murder. There are many other questions regarding how strictly they will apply Sharia. Will they force everybody to go pray five times a day whether they want to or not? Will they force people to write pbuh after Mohammed or Allah's name? There are more questions like these. It's admirable that they are trying to create a new constitution. What isn't admirable is how heavy a hand Iran played in it. Until we deal with Iran, it is my sad feeling that Iraq will not get much better. As they say, "The road to victory in the War On Terror leads through Tehran." Note, we don't actually have to go through that road litetrally. We can do it figuratively.

Elizabeth said...

Let's face it, we can't make other countries be like us. The best we can do is give persecuted groups political asylum in our country. And we could stop funding countries that persecute people--of course that would mean the end of foreign aid to many of the regimes we currently give it to.

Frank Staheli said...

Elizabeth,

I agree with you on both points. The US has caused itself great harm many times in the past by funding despotic regimes. I wish I knew how much money it would save us to stop giving foreign aid in such cases.

I think (hope) this time in Iraq we are setting an example, and that we'll be of assistance as long as the new government would like our assistance, and that we will otherwise stand out of their way and let them develop their own democratic republic.

But I believe the essential freedoms (thought, speech, assembly, religion, self-defense, etc.) are freedoms that all people desire by nature. So I have great expectations that Iraqi will succeed in becoming a truly free country.

traeh said...

I wonder how you now (in 2010) feel about the assertions in this post on "The Iraqi Constitution and Sharia."

It may be that this constitution was about the best the U.S. could hope to see implemented, under the circumstances. Whether it will significantly moderate Iraqi society over the long run remains to be seen. Was it worth the huge amount of treasure and blood the U.S. expended? Very questionable. Sharia law is more totalitarian than you let on. Sharia means death for apostates from Islam. It means that non-Muslims, when abused or preyed upon by Muslims, can expect limited or no redress in courts of law. Some judges look down on non-Muslims as inferiors, not entitled to equal rights with Muslims. Other judges may be afraid to side with victimized non-Muslims, because the Muslim society at large will start to view the judge as an apostate from Islam, and in Islam apostasy means death. In Sahih Bukhari, the most canonical of hadith collections, Muhammad said, "If someone changes his Islamic religion, then kill him."

Recently (in 2009 and 2010) we have heard about the brutalization of Christians and non-Muslims under the "liberated" Iraq.

One must hope that the liberal democratic side of this constitution will nevertheless have a moderating influence on Iraq's international behavior, even if non-Muslims within Iraq face from Muslims more death and destruction than had to be faced under the mad murderer Saddam Hussein.

In the future, if the U.S. decides to invade a Muslim country, we should do to Islam in that country what we did to Shinto in Japan after World War II. We destroyed any theocratic and political ambitions of Shinto. We outlawed any form of Shinto rule of the political system. Shinto could remain, but only as a private religious faith. Non-Muslims must no longer shy from taking this approach to Islam. Its political-totalitarian ambitions must be ripped out unapologetically. The global jihad around the world must be countered by shrinkage of the "Dar-al-Islam", i.e., the realms where Islam rules politically, since Islamic control of States is the goal of the jihadists doing violence all over the globe.