Islamic Law and the Making and Remaking of the Iraqi Legal System

Article excerpt

One of the U.S. administration's main goals since overthrowing the Saddam Hussein regime has been the adoption of a new Iraqi constitution-befitting a new, democratic Iraq.1 The United States initially announced that it would turn over control to an Iraqi government only after the adoption of a permanent constitution and the conclusion of free and fair elections pursuant to that constitution.2 To assist with the administration of Iraq, on July 15, 2003, the United States-in the form of the Coalition Provisional Authority (CPA)-appointed a twenty-five member Iraqi Governing Council, whose "most important task [was] to organize a constitutional convention to write a new, permanent Iraqi constitution,"3 after which the CPA would "return [ ] legal sovereignty to a government elected under the new constitution."4 The Governing Council was scheduled to announce a timeline for the constitutional process by December 15, 2003,5 with the United States aiming for the new constitution to be completed within six months thereafter.6

By the fall of 2003, with the Governing Council unable to produce a timetable, the CPA concluded that this schedule was unworkable and that a constitutional process would require much more time than the United States had planned for the occupation of Iraq.7 On November 15, 2003, the CPA announced an alternative plan in the Agreement on Political Process: it would abandon the position that a permanent constitution is a necessary precondition to Iraqi sovereignty, and instead transfer sovereignty to an Iraqi Interim Government (Interim Government) on June 30, 2004.8 The Interim Government would operate under a transitional law, subsequently adopted on March 8, 2004, called the Law of Administration for the State of Iraq for the Transitional Period (Interim Constitution).9 According to the Interim Constitution, by the end of 2004 the Interim Government will have held elections for a National Assembly, one of whose functions will be both to draft a permanent constitution, and then to present it to a national referendum.10 If the people of Iraq adopt the proposed constitution by October 15, 2005, elections would then take place pursuant to it by December 15, 2005, to form a new permanent Iraqi government by December 31, 2005.11

In order to consider the new Iraq successfully launched, the United States wanted Iraq to adopt a new constitution quicklywhile still incorporating all of the freedoms, rights, and guarantees of a democratic nation. This fast-track state was to be the first true democracy in the Arab world, with the new constitution as its hallmark.12 One major area of American concern for the new constitution, however, was the role of Islam.13 The United States warned that it would not tolerate an Iranian-style theocracy in Iraq, preferring instead a Turkish-style "Islamic democracy" as a model for Iraq.14

These U.S. ambitions and concerns evince a simplistic understanding of the role of Islamic law in Iraq's current legal system and what role Islamic law might play in a remaking of that system. First, Iraq is unlikely to be guided by the example of either Iran or Turkey. Among nations with predominantly Muslim populations, Iran and Turkey represent the two opposite ends of the spectrum of possible state structures: Islamic law is the supreme law of the land in Iran, where a council of clerics routinely invalidates legislation adopted by the elected Parliament on the grounds that it contradicts the clerics' interpretation of Islamic law, while the Turkish state is so ideologically secular that some expressions of religion protected even in the United States are illegal in Turkey.15 The Iraqi population's diverse political, religious, and ethnic affiliations suggest that agreement will come only through negotiation and compromise among many different views, making the prevalence of any one extreme view on the role of Islamic law in the new Iraq unlikely. …