Secular Iraqis Say New Charter May Curb Rights
By DEXTER FILKINSNew York Times
August 24, 2005
BAGHDAD, Iraq, Aug. 23 - Some secular Iraqi leaders complained Tuesday that the country's nearly finished constitution lays the groundwork for the possible domination of the country by Shiite Islamic clerics, and that it contains specific provisions that could sharply curtail the rights of women.
The secular leaders said the draft, which was presented to the National Assembly on Monday, contains language that not only establishes the primacy of Islam as the country's official religion, but appears to grant judges wide latitude to strike down legislation that may contravene the faith. To interpret such legislation, the constitution calls for the appointment of experts in Shariah, or Islamic law, to preside on the Supreme Federal Court.
The draft constitution, these secular Iraqis say, clears the way for religious authorities to adjudicate personal disputes like divorce and inheritance matters by allowing the establishment of religious courts, raising fears that a popularly elected Islamist-minded government could enact legislation and appoint judges who could turn the country into a theocracy.
The courts would rely on Shariah, which under most interpretations grants women substantially fewer rights than men.
Language reserving a quarter of the Assembly's seats for women has been relegated to a section of the constitution labeled transitional, which is of uncertain legal force and duration. Another phrase declares that education is mandatory only through elementary school. Women's rights groups, which expressed concern about lower levels of literacy among women here, wanted middle school to be declared mandatory as well, but were defeated.
President Bush, in an appearance in Idaho on Tuesday, asserted that the Iraqi document guaranteed women's rights and the freedom of religion in a country that in recent decades had only known dictatorship.
Labeling the Iraqi constitution an "amazing event," he said, "We had a little trouble with our own conventions writing a constitution."
The Iraqi constitution, several weeks in the making, is still not in its final form. After weeks of deliberations and an extension of its deadline, a group of Iraqi leaders submitted an incomplete draft to the Assembly on Monday night. The leaders gave themselves until Thursday to work out the remaining disputes. According to Shiite and Kurdish leaders, who wrote most of the document, none of those differences involved questions of Islam or women's rights.
Many Iraqis say they are already concerned at the strengthening grip of political Islam in many areas of southern Iraq, where alcohol is banned in many places, women are forced to dress conservatively and religious minorities often feel compelled to mimic those in the majority.
Most of the cities of southern Iraq have fallen under the sway of the same Shiite political parties that make up the ruling coalition in Baghdad, one that many people believe has a good chance at capturing a majority of Assembly seats in the elections scheduled for December.
"This is the future of the new Iraqi government - it will be in the hands of the clerics," said Dr. Raja Kuzai, a secular Shiite member of the Assembly. "I wanted Iraqi women to be free, to be able to talk freely and to able to move around."
"I am not going to stay here," said Dr. Kuzai, an obstetrician and women's leader who met President Bush in the White House in November 2003.
Other Iraqi leaders who helped draft the constitution say the fears of nascent theocracy are unfounded. The new draft constitution, they point out, contains language guaranteeing equal rights for all Iraqis, as well as freedom of expression and religion. And it contains important safeguards, such as, in some cases, the requirement of super-majorities to approve laws.
Ahmad Chalabi, the deputy prime minister, said the Iraqi draft constitution erected a more stringent separation of state and religion than any such document in the Middle East. Mr. Chalabi said the new language allowing a clerical role in family disputes was inserted by popular demand, and that, in any case, any Iraqi would be free to reject it and opt for a secular court.
"There is no compulsion; they are free to do whatever they want," said Mr. Chalabi, the former White House favorite who has recently moved closer to Islamist politicians like Moktada al-Sadr. "There was much discontent among people because they were forced to follow laws they didn't believe in."
Asked about the possibility of a theocratic government in Iraq, the American ambassador here, Zalmay Khalilzad, argued that the document strives for a balance of authority among Islam, human rights and democracy.
"The draft contains far-reaching democratic and human rights commitments," he said during a news conference. "It's a synthesis between Islamic traditions of the country with the universal principles of democracy and human rights, and in that sense, it sets a new path for the future."
The Shiite and Kurdish leaders who bear primary responsibility for drafting the document have given public assurances that the new constitution would protect individual rights, and that they have built safeguards into the draft to ensure that Iraq will not become theocracy.
Mr. Khalilzad acknowledged the limits of American influence here, saying it was not the intention of the Bush administration to impose what would amount to a Western constitution on a country with a different history and tradition.
"These are decisions that Iraqis have made for themselves," he said. "We don't want to impose on Iraq a cookie-cutter approach. That's not American foreign policy."
But some secular-minded Iraqis criticized American diplomats for not working harder to block efforts by Shiite politicians, many of whom are clerics, to expand the reach of Islam.
Mahmood Othman, a Kurdish legislator, said Kurdish leaders did not vigorously oppose Islamist language in part because American diplomats often did not object either. For instance, Mr. Othman said, American diplomats had acquiesced to the language that would clear the way for clerical adjudication of family and personal disputes.
"The Kurds thought, as long as the Americans don't object, why should we object?" Mr. Othman said. "It's American policy to show that it is not opposed to Islam."
In his Idaho appearance, Mr. Bush said he was optimistic despite a prediction by the negotiator for the Sunni Muslim minority that the country would "rise in the streets" if the constitution, as currently written, is approved.
"You know, you're speaking about one voice," the president told a small group of reporters at the Tamarack resort near Donnelly, Idaho. "There is more than one Sunni involved in the process. Reaching an accord on a constitution, after years of dictatorship, is not easy. And so you're seeing people express their opinion. "
The Sunnis, Mr. Bush added, "have got to make a choice: do they want to live in a society that's free, or do they want to live in violence?"
Shiite and Kurdish leaders who drafted most of the document say they will try to find an agreement on language with the Sunnis, whose main objection is the demand by Shiite leaders for a large autonomous region in the south.
Secular Iraqi leaders say there are three areas in the constitution that worry them. While they say the constitution would change nothing by itself, they worry about the language establishing Islam as the official religion of the state and as "a primary source of legislation." The constitution then says there can be no law that contradicts the "basic beliefs of Islam."
Some Iraqis fear that the phrase is so broad as to allow Iraqi judges wide latitude in striking down secular legislation. Some said they had preferred a phrase saying that no law could contradict the "agreed upon" principles of Islam, which they say would have substantially narrowed the sort of legislation that could be struck down.
In addition, some Iraqis are concerned about language that would allow experts in "Shariah law" to sit on the Iraqi Supreme Federal Court.
Some worried that such experts would inevitably be clerics. The clause does not answer such crucial questions as how many such experts would sit on the court or how they would be appointed. Instead, it calls for a law to be written by a future elected body.
As a safeguard against a possibly overweening majority, the constitution states that the law must be approved by a two-thirds majority.
"What this means is that, before we pass a law, we're going to have to run it past a Shariah law expert," said Wael Abdul Latif, a Shiite judge and member of the constitutional drafting committee. "I'm upset. Very."
The other section prompting worry is one that deals with "personal law," governing affairs like marriage, divorce and inheritance. The new constitution declares that "Iraqis are free to abide in their personal lives according to their religions, sects or beliefs." And it calls for a law to set up a system to deal with such matters.
Many Iraqi leaders, including those who took part in the negotiations over that phrase, said the language would clear the way for the Assembly to set up religious courts to regulate such matters. Secular Iraqi leaders fear that the Iraqi law governing family relations that is currently on the books, passed in 1959, will be abolished, and that Shariah law will dominate the lives of ordinary Iraqis. "It sounds like the civil law will be canceled," Dr. Kuzai said. "We had the best family law in the Middle East. And we'll go back to the clerics."
Some secular-minded Iraqis believe the constitution is less important than political battles to come. Adnan Pachachi, a former foreign minister, said that if secular Sunni and Shiite leaders bind together with the Kurds, they might, after the next election, constitute a majority of the Assembly. As such, they could successfully block the imposition of an Islamic state. Reporting for this article was contributed by Kirk Semple and James Glanz from Baghdad, and Elisabeth Bumiller from Boise, Idaho.