The Iraqi Constitution and the Responsibility of Liberals

By Dr. Shaker an-Nabulsi

Translation by Tony Badran (The Middle East Democracy Digest of The Foundation for the Defense of Democracies)

As-Siyasah and elaph.com
July 31, 2005
Web site: http://www.elaph.com/ElaphWeb/ElaphWriter/2005/7/80136.htm

A number of Iraqi newspapers and Internet sites have published some of the articles of the draft of the new Iraqi constitution, which will be put to a popular referendum soon. We should know, and understand well, that this constitution – regardless of its form – is the most precious Arabic constitution written so far, in all of Arab political history, after the Algerian constitution which cost more than a hundred thousand martyrs. The Iraqi constitution has been more expensive financially (300 billion dollars so far) and more than hundred thousand martyrs, most of whom were the victims of blind terrorism backed by Iraq's neighbors, who fear that the “Iraqi movie” will play on their own lands one day, and that their regimes will also be deposed. And let it be clearly known that terrorism in Iraq does not operate from within Iraq: The leadership of its cadres, including Zarqawi himself and Izzat Ibrahim and others of the leaders and plotters of terror, are not present in Iraq, but in a neighboring state that is well known to the leadership of the coalition forces.

Rightful Criticisms by Liberals

Two Iraqi friends, Dr. Sayyar al-Jamil and Dr. Abdel Khaleq Hussein, and other Iraqi liberals offered serious and knowledgeable criticisms to the new Iraqi constitution. They are rightful criticisms and, in brief, they note that the constitution's first article states that the Iraq republic is “unitary and Islamic.” It is a truly regrettable article, for no Western constitution says that the state is Christian, nor does the Israeli constitution note that the state is Jewish [Editor's note: Israel, like the United Kingdom does not have a Constitution but a series of basic laws]. Not even the Islamic countries (with the exception of Iran and Mauritania) are called Islamic in their constitutions. Even Saudi Arabia, which has no constitution, does not call itself “the Islamic Kingdom of Saudi Arabia.”

Sayyar al-Jamil was right when he commented on article 6 of the constitution which stresses the rule of law, and that “the people is the source of powers, whose rights are exercised through secret direct general voting, or direct secret referendums through constitutional institutions.” So he wrote: “If the people are the source of powers, how then is it an Islamic state? Why this vacillation between religion and the people? It seems that the constitutional committee wanted to satisfy clerics, both Sunni and Shia,” especially the difficult Sunnis, who have opposed the liberation, and who have set themselves against the Iraq people, and against the state, freedom, democracy, and elections.

The second article states that the official religion is Islam. This is mentioned in all Arab constitutions without exception [Editors note: This is not the case in Lebanon]. But this is merely a clause aimed at satisfying the religious establishments in these states, no more. Therefore, it would have been wiser not to mention it at all, considering the religious, sectarian, and ethnic pluralism in Iraq, unparalleled in the Arab world. Could the official religion of Iraq have been Christianity or Judaism? Its mention in this manner provokes religious, sectarian, and ethnic tensions.

We should also remind ourselves that the laws of Islam, especially those pertaining to punishment and statutes of limitation, were made for societies and values dating back 14 centuries. Laws don't create societies; societies create laws. In addition, we in the Arab world are part of a universal human order whether we like it or not. We don't live on a separate planet. We are required to follow international law and the values of human rights and civil society organizations. I also believe that a realistic and rational approach to Islam will not prevent the development of religious laws. In fact, those who listen to some enlightened Islamic clerics like the Egyptian Jamal al-Banna and Ahmad Subhi or the Qatari Abdel Hamid al-Ansari, etc., will see that Islam can be most compatible with the statutes of human rights organizations.

There are other articles critiqued by Sayyar al-Jamil, which may indicate that the constitutional drafting committee may have been naïve and afraid because of the car bombs in the streets of Baghdad and the rest of Iraq. But the final word remains to the Iraqi people in accepting this or another constitution.

Other Liberal Criticisms

Abdel Khaleq Hussein made similar criticisms and added that the insistence of both Sunni and Shiite Islamists on calling the Iraqi state an “Islamic republic” will harm Islam first and foremost, as it will cause people to have a negative reaction to Islam, as has happened in Iran. The name also frightens many people, inside and outside Iraq, especially in this day and age with the spread of Islamist terrorism, which the Iraqis suffer from more than anyone else. Furthermore, this is but a preliminary step on the way to the Khomeinist vilayet e faqih (guardianship of the jurisprudent) of Iran. Besides, mixing religion with political affairs will impede the development of the state.

What Abdel Khaleq Hussein said is true. For the state that proclaims itself Islamic and religious falls in all kinds of trouble. If it applies all the laws of Islam that were applicable 14 centuries ago in certain societies, it will come into conflict with the civil human values that are dominant today in the world. It will also come into conflict with the values of human rights organizations when it comes to statutes of limitation, punishment, women's rights and freedom of religion, etc. If, however, it refrains from applying these laws, as most Arab states do – despite the fact that the first article in their constitution state that the official religion is Islam – then it becomes a target for Islamists and their rabid religious attacks, labeling it an apostate state, fighting it and killing its employees, as did Ali Belhaj, leader of the “Algerian Salvation Front”, commenting on the murder of Algerian diplomats in Iraq.

Mixing Religion and Politics

Those who think that Arab neo-liberals are apostates and against religion – because they call for secular states – are badly mistaken. Liberals are not against religion, nor are they apostates. The secularism that liberals call for is not one that denies religion, but one that separates between religion and politics. That is why we encouraged dialogue with the Muslim Brotherhood when their new leaders, whom we have labeled “Neo-Bros,” abandoned the notion of establishing a religious state. Our opposition to mixing religion and politics proved to be sound, especially after seeing what fundamentalist terrorists have done using religion as a cover for bloody political terrorism.

Hussein concentrated on this point and considered the second article of the constitution (Islam as official state religion, the main source for legislation, and no laws should be made that contradict its fixed tenets, etc.) to be a nail in the coffin of the new Iraqi state that would isolate the Iraqi people from all modern human accomplishments in democracy, culture, modernity, arts, sciences, literature, and so on.

A Call for a Liberal Mass Campaign

In a letter sent to me by Dr. Jawad Hashem, the former Iraqi Minister of Planning, and a liberal economist who has co-prepared with us the “International Statement against Terrorism” – now in the hands of the members of the Security Council – called for an immediate international campaign to stop those who want to return Iraq to the dark ages through this proposed constitution. I don't think any liberal in the Arab world or outside it will oppose such a campaign.

However, I also think that the Iraqi people are fully engaged, as they have proved with the January elections. They will vote against this constitution, should all the articles remain as they are. I also believe that it is the duty of all liberals inside Iraq and outside it to further inform the Iraqi people – who have the final say in the legality of this constitution and its adoption – that there are articles in this constitution that are not worthy of the new Iraq and all the major military, political and financial sacrifices on its behalf.

Liberals Alone Are not Enough

The efforts of liberals alone are not enough. If it was liberals alone who in 1945 Japan stood by MacArthur's constitution, the wheels of democracy would not have turned in Japan, and Japan would not have adopted a modern constitution fit for the next stage, which Japan has gone to. American power also strongly supported the modernist Japanese constitution.

American diplomacy today, along with the diplomatic efforts of the rest of the coalition countries who have made enormous military, human, and financial sacrifices for a modern Iraqi constitution as unconcerned Arabs stood by watching, are all required to stand by a modernist Iraqi constitution that doesn't differentiate between religions, sects, or ethnicities. A constitution that holds all citizens of Iraq to be equal in rights and duties under international law and the values of human rights.

In all honesty, I don't believe for a minute that the US and Britain would approve a medievalist constitution, and go back centuries in order to satisfy a group of clerics who still dream of establishing the Caliphate.

That's not why fighters fought for Iraq, and the spenders spent, and the martyrs were martyred.

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