Barry SCHWARTZ (Barijo ŜVARC) (chemoelectric) wrote,

Juan Cole: Islamic Law Primary in Iraqi Constitution

Juan Cole reports ( on the Bushist regime's apparent support for a superstitious and abhorrent Iraqi theocracy rather than the 'democracy' they say they are bringing to Iraq. This is the sort of stuff that it seems isn't fooling some of the reactionary pundits.

Al-Hayat: In one of the major disputes outstanding between the Kurds and the Shiites, on whether Islamic law will be
the fundamental source or only one of the sources of Iraqi law, the Shiite religious parties appear to have won out. AFP reports that the reason for this is that the United States has swung around and begun to support the primacy of Islamic canon law.

Al-Hayat writes, "Also, an agreement was reached that Islam is the religion of state, and that no law shall be enacted that contradicts the agreed-upon essential verities of Islam. Likewise, the inviolability of the highest [Shiite] religious authorities in the land is safeguarded, without any allusion to a detailed description. The paragraph governing these matters will specify that Islam is 'the fundamental basis' for legislation, though there will be an allusion to the protection of democratic values, human rights, and social and national values. A Higher Council will be formed to review new legislation to ensure it does not contravene the essential verities of the Islamic religion." Personal status law, concerning marriage, divorce, alimony, inheritance, and so forth, will be adjudicated by religious courts in accordance with the religion or sect to which the individual belongs.

Similar law is present in the constitution of the US-installed "Islamic Republic of Afghanistan". In fact, the text of the Afghanistan constitution is instructive:

In the name of God, the Merciful, the Compassionate

We the people of Afghanistan:
1. With firm faith in God Almighty and relying on His lawful mercy, and Believing in the Sacred religion of Islam . . .
3. While acknowledging the sacrifices and the historic struggles, rightful Jehad and just resistance of all people of Afghanistan, and respecting the high position of the martyrs for the freedom of Afghanistan . . .

Chapter I The State

Article 1 [Islamic Republic]
Afghanistan is an Islamic Republic, independent, unitary and indivisible state.

Article 2 [Religions]
(1) The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam
(2) Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law.

Article 3 [Law and Religion]
In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam . . .

Article 131 [Shia Law for Shia Followers]
(1) Courts shall apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law.
(2) In other cases if no clarification by this constitution and other laws exist and both sides of the case are followers of the Shia Sect, courts will resolve the matter according to laws of this Sect. '

[I take it that article 131 implies that ordinarily personal status law is Sunni, but Shiites will be ruled by Shiite law.] This Afghan constitution was also enacted with the help of Zalmay Khalilzad, then US ambassador in Afghanistan and now US envoy in Iraq. I'm not suggesting that Dr. Khalilzad has a soft spot for Islamic canon law. More probably he is just a pragmatist who recognizes that these provisions reflect the current mood and convictions of the majority in Afghanistan and Iraq.


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