The George W. Bush administration has welcomed statements by Iraq's senior Shiite religious authority, Grand Ayatollah Ali Sistani, that he rejects the theocratic approach adopted by Iran's ayatollahs, in which religious authorities direct the entire government. However, it seems much less aware that Sistani and several other Shiite authorities are committed to ensuring that Iraq's constitution and legal system is based on Islamic law, as they define it, and that this poses major obstacles to President Bush's vision of establishing Iraq as a new paradigm of freedom in the Middle East.
If Iraq's currently debated "Fundamental Law," its interim constitution, continues to list only Islam as a "source of legislation," as it does now, ten days before it is due to be finalized, then Islamic sharia law will have an open door. This could mean that an undefined Islam, interpreted by unaccountable judges, could override any constitutional guarantees of equality, individual human rights, and democracy. And, because many sharia judges equate their own verdicts with divine law itself, those who dissent from their opinions may face blasphemy accusations that carry the death penalty.
The content of these versions of sharia can be illustrated by Sistani's website. As a Mujtahid, he examines "the holy Qur'an and the Sunnah of the Holy Prophet... (and) the authorities of law" to determine what the law is. Most of his judgments concern specifically religious questions, such as prayer or making the pilgrimage to Mecca, as well as ethical advice on medicine and entertainment.
But other decrees, especially concerning women, non-Muslims, and reformist Muslims, directly affect civil and political rights and democracy.
For example, on women's rights, he declares that a woman cannot be a judge or exercise authority over men, must receive half the inheritance given to a man, must wear a hijab, even against the wishes of her husband though "the matter ends in divorce," and "cannot leave the house without her husband's permission."
If a man agrees in a marriage contract not to marry another woman and yet still does so, the woman still has no right to divorce him, since divorce "is absolutely in the hand of (the) husband." He adds that, if a divorcing husband is ten years old, then this should be done cautiously, and he also discusses the protocols for divorcing a woman who has not yet reached nine years of age.
He commends temporary marriage, a practice that in Iran has become a euphemism for prostitution. Such a marriage may last only one hour, with a dowry of a "bunch of flowers," and be recontracted the following day. After it has ended, husband and wife "are as strangers to each other," and she need not receive any further support even if she became pregnant.
Any marriage of a Muslim to unbelievers "is absolutely forbidden." It is also an "obligatory precaution" to avoid permanent marriage with "people of the book," such as Christians and Jews, who have some genuine revelation. However, "there is no objection" to a Muslim man having a temporary marriage with them, though Muslim women are "not allowed to marry a non-Muslim man at all." If either party leaves Islam, then the marriage is automatically ended, no matter what the spouses wish.
Sistani discriminates in other major ways between Muslims and non-Muslims. A non-Muslim cannot inherit from a Muslim, even if he is the father or son, and a Muslim may receive, but not pay, interest to a non-Muslim. Non-Muslims must also pay extra tax if they buy land from a Muslim.
Unless a life is at stake, post-mortem on a Muslim is forbidden, though allowed on an unbeliever "provided his blood was spared during his life-time." An unbeliever whose "blood was spared" is one that, unlike the Bahai in Iran, no Muslim jurist has decreed may be killed without penalty. Among things ritually unclean (najis) are pigs, corpses, and "infidels," who are people who do "not believe in Allah and His Oneness," and deviant Muslims, who "deny any of the necessary laws of Islam." Their entire body is najis, though if "the child of an unbeliever is captured by Muslims, and his father, paternal grandfather or maternal grandfather is not with him..." then he is not unclean.
Sistani does not believe that people of the book, Christians and Jews, are najis, though he acknowledges that many other jurists do, and so, on balance, he concludes, "it is better to avoid them."
He no doubt has enough directly political reasons for refusing to meet with Coalition Provisional Administrator Paul Bremer or his staff, while agreeing to meet with United Nation's envoy Lakhdar Brahimi. But it may also be relevant that Brahimi is a Muslim, whereas Bremer is a Christian and may be unclean, and so "it is better to avoid" him.
Sistani is strongly in favor of the blasphemy laws that have been so useful to Middle Eastern despots in squelching political reform. He declares that the ruling on those who "slander Allah, the Prophet, the Imams, religion or schools of law (madhhab)... is death." This penalty could be imposed on any Muslim who "slanders," that, is criticizes, an Imam's interpretation of the law, as has occurred in Iran and Afghanistan.
In Sudan four months ago, 14 prominent religious leaders issued a fatwa declaring that anyone who "calls for application of a ruling other than Islamic sharia," such as calling for women's equality, "is an apostate," and that such people, and anyone who aids them, should be killed. In such an environment, any political debate, any challenge by a Muslim to a particular interpretation of Islam, could bring a death sentence. This is what happened to Sudanese reformer Mohammed Taha, perhaps the country's most famous religious teacher, and a devout Muslim, who called for debate about the role and content of sharia.
This underscores that religious freedom is the key issue in Iraq's bill of rights. It is not merely a matter of practicing rites and ceremonies, nor something only of concern to religious minorities: it includes protecting the rights of Muslims to debate, criticize each other's interpretations of their faith, and, hopefully for U.S. national interests, nurture a tolerant, pluralistic-minded, interpretation of their faith. In a region where religion and politics overlap, without religious freedom there can be no political freedom.
CPA head Paul Bremer has wisely said that he will block any interim constitution that would make Islam the chief source of law. He also needs to close any loopholes that would allow a reactionary version of Islamic law to override the constitution's individual human-rights guarantees. Otherwise, the rights of women, religious minorities, and moderate Muslims will be suppressed, and political and religious debate could become a capital offense.