New York Times
February 6, 2005
NAJAF, Iraq - With religious Shiite parties poised to take power in the new constitutional assembly, leading Shiite clerics are pushing for Islam to be recognized as the guiding principle of the new constitution.
Exactly how Islamic to make the document is the subject of debate.
At the very least, the clerics say, the constitution should ensure that legal measures overseeing personal matters like marriage, divorce and family inheritance fall under Shariah, or Koranic law. For example, daughters would receive half the inheritances of sons under that law.
On other issues, opinion varies, with the more conservative leaders insisting that Shariah be the foundation for all legislation.
Such a constitution would be a sharp departure from the transitional law that the Americans enacted before appointing the interim Iraqi government led by Prime Minister Ayad Allawi. American officials pressed Iraqi politicians drafting that law in early 2004 to guarantee equal rights for women and minorities. The Americans also persuaded the authors to designate Islam as just "a source" of legislation.
That irked senior Shiite clerics here, who, confident they now have a popular mandate from the elections, are advocating for Islam to be acknowledged as the underpinning of the government. They also insist that the Americans stay away from the writing of the new constitution.
Many factors could force the clerics to compromise their vision. The alliance of Shiite politicians in the constitutional assembly could splinter as its members vie against one another for power and trade favors with rival politicians like Dr. Allawi. Too strong a push for a Shiite religious state could prompt opposition from the former governing Sunni Arabs, a minority that already has said it feels disenfranchised, or from the Kurds, who can exercise veto power over the new constitution.
And Shiite politicians, recognizing a possible backlash from secular leaders and the Americans, have publicly promised not to install a theocracy similar to that of Iran, or allow clerics to run the country. But the clerics of Najaf, the holiest city of Shiite Islam, have emerged as the greatest power in the new Iraq. They forced the Americans to conform to their timetable for a political process. Their standing was bolstered last Sunday by the high turnout among Shiite voters and a widespread boycott by the Sunni Arabs, and the clerics will now wield considerable behind-the-scenes influence in the writing of the constitution through their coalition built around religious parties.
Once official election results are tallied, that coalition - a huge slate of mostly Shiite candidates called the United Iraqi Alliance - is expected to take the largest share of seats in the 275-member National Assembly. The assembly is charged with appointing an executive government, drafting a constitution and preparing the country for full-term elections by the end of the year.
"The constitution is the most dangerous document in the country and the most important one affecting the future of the country," said Alaadeen Muhammad al-Hakim, a son of and spokesman for Grand Ayatollah Muhammad Said al-Hakim, one of the most senior Shiite clerics in Iraq. "It should be written extremely carefully."
The leading Shiite clerics say they have no intention of taking executive office and following the Iranian model of wilayat al-faqih, or direct governance by religious scholars. But the clerics also say the Shiite politicians ultimately answer to them, and that the top religious leaders, collectively known as the marjaiya, will shape the constitution through the politicians.
Some effects are already being felt locally. In Basra, the second-largest city in Iraq, where one of Ayatollah Sistani's closest aides has enormous influence, Shiite religious parties have been transforming the city into an Islamic fief since the toppling of Mr. Hussein. Militias have driven alcohol sellers off the streets. Women are harassed if they walk the streets in anything less than head-to-toe black. Conservative judges are invoking Shariah in some courts.
"The opinion of the marjaiya will be raised through its representatives in the national assembly," said Sheik Abbas Khalifa, a senior aide to Ayatollah Muhammad Yacoubi, one of the most politically active clerics here. Ayatollah Yacoubi's organization is part of the Shiite alliance and could get nine or more seats in the national assembly. "The first thing the marjaiya wants to see in the constitution is respect for everybody and maintenance of Islamic identity."
"The marjaiya advise the United States to respect the will of the marjaiya and the will of the people when they write the constitution," Sheik Khalifa added. "The marjaiya said there must be an election, and because the Americans kept postponing it, there was destruction and failure in Iraq."
It was the country's most revered Shiite cleric, Grand Ayatollah Ali al-Sistani, who initially demanded speedy elections, knowing that a popular vote would bring to power a legitimate government run by the majority Shiites. When the Bush administration objected, the ayatollah forced the White House to back down by calling protesters into the streets of Iraq.
Ayatollah Sistani's power was felt again when his office assembled the United Iraqi Alliance and exhorted voters to turn out last Sunday.
Though the alliance could be threatened by power struggles, Ayatollah Sistani will urge the politicians to work together in the writing of the constitution, clerics say.
"Sistani and the other grand ayatollahs will press for as much Shariah - or Islamic law - as possible in Iraqi law," said Juan Cole, a history professor and specialist in Shiite Islam at the University of Michigan. "They can afford to be patient if they can't push through everything now."
Adnan Zurfi, the governor of Najaf and a former student in the Shiite seminary here, said of the clerics: "The most important thing for them is to write the constitution. This is why they supported the elections."
The clerics generally agree that the constitution must ensure that no laws passed by the state contradict a basic understanding of Shariah as laid out in the Koran. Women should not be treated as the equals of men in matters of marriage, divorce and family inheritance, they say. Nor should men be prevented from having multiple wives, they add.
One tenet of Shariah mandates that in dividing family property, male children get twice as much as female children.
"We don't want to see equality between men and women because according to Islamic law, men should have double of women," said Muhammad Kuraidy, a spokesman for Ayatollah Yacoubi. "This is written in the Koran and according to God."
The Americans have actively pushed for equality for women. In the elections last Sunday, many women voted, and the clerics have not publicly objected to that right, nor have they criticized a clause in the transitional law that sets quotas for women in the national assembly.
But Sheik Khalifa, Ayatollah Yacoubi's senior aide, said the ayatollah did not want the constitution to be linked to the transitional law whose writing was overseen by the Americans.
"There was no clear point about Islam," he said. "It just said that Islam should be respected. But we want a legal article that states frankly that no laws should violate Islamic law.
A State Department official said the United States "would urge an inclusive and participatory process," but that for now the Bush administration was simply watching the debate unfold. "This is an Iraqi process," said Edgar Vasquez, a State Department spokesman.
A former administration official said the White House was relying on veto power by the Kurds and possibly the Sunni Arabs to limit any moves toward a Shiite theocracy. But "this isn't going to be Jeffersonian democracy," he said, "and we are na´ve to think the Iraqis can draft a constitution and build a democracy without at least tipping a hat to the role of Islam." Even under the formal American occupation, the Shiite religious parties - the same ones expected to wield great power in the new assembly - almost managed to enshrine Shariah as the basis for personal law. That took place in December 2003, when the 25-member Iraqi Governing Council voted in a private session to repeal a relatively secular family law used under Saddam Hussein and replace it with Shariah. Women's groups staged street protests the next month, and L. Paul Bremer III, the top American administrator at the time, vetoed the move.
But with the unpopularity of the mullahs in Iran serving as a stark reminder, some moderate clerics say they recognize that unrest may ensue if Islamic law is applied injudiciously.
Muhammad al-Haboubi, a senior aide to Ayatollah Sistani, said the top priority in the writing of the constitution was "the preservation of the rights of all citizens, majority or minority, so they are all equal in the eyes of the law."
But "the percentage of the Muslim majority should be considered when writing the constitution," Mr. Haboubi said. "Public freedoms should be regulated based on the country's Islamic character."
For example, he said, alcohol sales should be restricted out of "consideration of the feelings of the Muslim majority," but should not be banned because non-Muslims live in Iraq.
On the more radical end of the spectrum, Moktada al-Sadr, the young firebrand cleric who has led uprisings against the Americans, wants Islam enshrined as the national religion and Shariah recognized as the law of the state, said Sheik Ali Smesim, Mr. Sadr's top aide.
"The religious people should have a role in writing the constitution," he said. "Islamic law is so broad, and Shiite Islamic law has so many branches. There is an answer from Islam for everything in society."
The Sadrists have been carrying around a pamphlet with a suggested Iraqi constitution written last year by Ayatollah Kadhum Hussein al-Haeri, a prominent cleric who is Mr. Sadr's godfather. The Iraqi Army should allow only Muslims into its ranks, the ayatollah wrote, and all proposed laws should be reviewed by a 12-member constitutional committee similar to the Council of Guardians in Iran. Half the committee members would be clerics appointed by the marjaiya, and the other half would be Islamic lawyers.
"The infidel coalition forces want to make a constitution for our dear Iraq and carry out their infidel agenda through the current government," Ayatollah Haeri wrote. "This is the most dangerous thing for Iraq and Islam. They want to change our identity, habits, morals and Islamic way of life."
The pamphlet was given to a reporter at a mosque here by Sahib Obeid al-Amiri, a Sadr official. "It's possible the national assembly could take some ideas from here," he said. "They cannot ignore this book."
But how much Islamic influence the clerics manage to get into the constitution could come down to the sentiments of ordinary Iraqis. Mr. Hussein spent much of his rule molding Iraq into one of the most secular nations in the Middle East. That indoctrination is not easily cast off, even by some residents of Najaf. "There are some people who are close to Iran, who lean toward Iran," said Shakir Mahmoud Abdul-Hussein, 47, a union leader who voted for the secular slate led by Dr. Allawi. "Those with turbans will ruin our country. They just want to permit things for themselves and not for others."
Anne E. Kornblut contributed reporting from Washington for this article.