What Role for Islamic Law?

The rise of Shia political forces in Iraq is raising questions about whether their leaders will seek to introduce Islamic law into the country’s new constitution.

The United Iraqi Alliance won a resounding victory in the January election, securing an estimated 140 seats in the 275-seat transitional National Assembly. That body’s main responsibility will be to draft a new constitution for the country.

The Shia-led alliance, which is backed by Grand Ayatollah Ali al-Sistani, said it does not intend to create an Iranian-style theocracy in Iraq. Ibrahim Jaafari, one of the alliance’s top candidates for prime minister, said he believes that Islamic law or Sharia should be one of the main sources for legislation, along with other sources of law that do not harm “Muslim sensibilities”.

But such statements have done little to reassure Iraqis who believe the country’s next constitution should separate mosque and state.

"All religious parties talk about freedom, democracy, pluralism and women's rights,” said Yanar Mohammed, head of the Organisation for Women’s Freedom in Iraq. “But as soon as they assume power, they begin arresting those who disagree with them,”

Mohammed said she is especially concerned that religious parties will seek to introduce laws that discriminate against women, such as mandatory veiling.

A precedent for this was set last year when the Iraqi Governing Council attempted to introduce Sharia into family law, which contains largely secular legislation on the status of women. The measure was shelved after protests from women’s groups and pressure from the United States occupation government that appointed the council.

Mohammed took particular issue with Islamic laws that allot women only half the share in inheritance due to men, or allow husbands to have four wives. "Why are men entitled to marry four women? Doesn’t this mean that a woman is equal to a quarter of a man?” she said.

A spokesman from one of the main parties in the United Iraqi Alliance said fears that Sharia is to be imposed are unfounded.

Ridha Jawad Taqi of the Supreme Council for the Islamic Revolution in Iraq said his party has already supported provisions in the Transitional Administration Law, the interim constitution, that guarantee freedom of religion and prohibit discrimination. To support his position, Taqi quoted a verse from the Koran saying, “Religion is not to be forced.”

Taqi said the assembly’s diverse makeup, including a mandatory 30 per cent quota for women, will help guarantee the rights of minorities. In addition, the final content of the constitution is ultimately up to the Iraqi people, since by law they must vote on the draft constitution in October. If that ratification fails, the assembly must write a new draft.

“The laws that go into the constitution will be voted on by the whole of Iraqi society, with all its different ethnicities, genders and religions,” said Taqi. “If these laws don’t get a consensus from the Iraqi community, they will be annulled.”

The United Iraqi Alliance fell short of the two-thirds majority needed in the transitional National Assembly to make key decisions unilaterally. The Kurdish Alliance List got the next largest share of votes, earning the largely secular Kurds an estimated 75 seats. These numbers have made it less likely that religious Shias will be able to introduce Sharia.

Prominent Islamic scholar Ayad Jamal al-Din said most Iraqis want separation of religion and state. He said that after years of living under authoritarian regimes, Iraqis should not have to face a future of strict religious rule.

“Our tragedy was the state, not religion,” he said. “I don't think the secular man in Iraq wants to cancel out people's religion, but if the religious man gets into politics and into the Republican Palace, he will forget what’s legitimate and what’s illicit.”

Jamal al-Din, who ran an unsuccessful bid for the assembly, said the separation was also necessary to keep religion pure and free of outside influence.

Some believe that there are no conflicts between democracy and Sharia, only that people have distorted them both to suit their own agendas.

"When Sharia is implemented in a sound way, you will see that it is more just than democracy itself,” said Saleem Naji Hasan al-Zubaidi, a member of the constitutional legal committee. He explained that Islamic law gives rights to all individuals irrespective of religion, sect or ethnicity.

He added that there are enough qualified legal experts in Iraq to draft the constitution without foreign help.

“The Iraqis know their people better than others and they know what their interests are and how to implement democracy without violating Sharia,” he said.

Kareem Tahseen, a 33 year old engineer, believes it will be possible to achieve the right balance so that minority rights are protected, the people’s right to vote is maintained, and Sharia is named as one source of legislation.

"What we demand is a free, democratic, and pluralist Iraq that respects the dignity of human beings,” he said.

Hamid al-Hamrani is an IWPR trainee journalist in Iraq.