Iraq Navigates Between Islam and Democracy New York Times March 7, 2004


A few months ago, Iraq's interim oil minister considered how to stop oil smuggling, which was causing severe gasoline shortages.

True, he could have had people arrested. But the minister, Ibrahim Bahr al-Uloum, decided that the secular laws could benefit from a little spiritual enhancement.

Mr. Uloum, a devout Muslim, turned to Grand Ayatollah Ali al-Sistani, the country's pre-eminent Shiite cleric, who issued a fatwa declaring the theft of oil a violation of Islamic law.

In that case, the sacred and the secular coincided neatly. But it's not always so. Reconciling religion and state has been the dominant political and social issue for Islam at least since the early 1970's, when many Muslim countries rewrote their post-colonial constitutions to include a reference to Islam as the source or basis of their laws.

Since then, religion has colored the debate over just about every issue, from women's rights and banking regulations to censorship and penal codes. Wherever Islam is enshrined in a constitution, it has prompted disagreement over who should decide what is consistent with Islam and whether those decisions have the force of law.

Last week, Iraq's American-appointed Governing Council nearly agreed to a temporary constitution that would embrace both democratic principles and Islamic law. Consensus appeared likely until late Friday, when some Shiite members raised objections to the draft document and sent it back for more debate.

Their reservations, according to accounts from Baghdad, were political rather than religious, having to do with guaranteeing the majority Shiite Muslims a dominant role in government. But behind the scenes, the principal actor was again Ayatollah Sistani, whose veto of the text led the Shiite council members to withdraw their support for the agreement. (The council later issued a statement promising that the text would be in shape for a vote on Monday.)

The role of Islam in governing Iraq is likely to remain a potential deal-breaker, not only now in discussions of a transitional "basic law" but also in a year or so, when Iraqis hope to elect representatives to write a permanent constitution.

Excluding Islam entirely is widely considered impossible. Many Iraqi political figures said that such a decision would probably doom the constitutional exercise, leaving its authors open to accusations of kowtowing to foreign influence and risking a definitive rift with the Shiite majority.

But accepting Shariah, or Islamic law, could raise other problems. If the will of the majority is respected only to the extent that it conforms to Islamic law, the public's will can be thwarted by any non-elected "guardian" of religion, noted Sohrab Behdad, an Iranian-American who writes frequently on Islamic issues.

"What is Islamic may not be preferred by the majority, and what is preferred by the majority may not be Islamic," said Professor Behdad, who teaches economics at Denison University in Ohio. "What if the majority decides to legalize consumption of alcohol?"

In recent years, countries like Egypt and Morocco have changed their laws concerning divorce and inheritance in an attempt to give Muslim women more freedom than they had under a strict reading of Islamic law. Each move was met by fierce opposition from groups claiming it violated Islam - and the countries' constitutional references to it as the basis of legislation.

"Once you include Islam, you can never change it," said Adel Darwish, a London-based writer specializing in the Middle East. "You run the risk that anyone challenging this concept will be accused of blasphemy and will have a fatwa hanging over their head."

In their deliberations over the past few weeks, the Iraqi Governing Council tried many phrases to describe an acceptable role for Islam. Although the Governing Council's draft has not been published, some council members said it described Shariah as "a source" of legislation.

In practice, however, merging constitutionally enshrined religious power with existing civil and criminal law has been difficult. The courts simply haven't known how to do it.

"In all cases it turned out to be a mostly symbolic point, because when it came to the actual implementation. the courts said, We cannot be asked to reconcile this discrepancy between the enacted law and the aspirations stated in the constitution," said Khaled Abou el Fadl, an expert on Islamic law who is a visiting professor at Yale University.

"On a rhetorical bombastic level, you have people shouting, 'Islam, Islam,' " he added. "But when it comes to nuts and bolts, it plays a very small role except in family law."

The structure of a future government will also be part of a new constitution, and that is where religion could play a major role. But Ayatollah Sistani and many other prominent Iraqi Shiite leaders have said they do not want an Iranian-style constitution that institutionalizes the clergy as the country's ultimate political power.

They envision, instead, a government in which religious authorities are given a formal role as advisers or consultants to the justice system, a system more in line with the mainstream school of Shiite political thinking in Iraq.

"We will not have institutions within a state," said Faleh A. Jabar, a senior fellow at the Institute of Peace in Washington and the author of several books on Iraq's Shiites. "Religious institutions will be there, but only in the sense that Sistani is an institution."

Scholar of the House is dedicated to providing a path to peace through education and understanding. Please join our cause!