FOR IMMEDIATE RELEASE: March 7, 2005
CONTACT: Carmen MacDougall, 202/939-2319 or cmacdougall@CarnegieEndowment.org

In the coming months, Iraq’s newly elected National Assembly faces three critical tasks—writing a constitution, drafting personal status law, and establishing a security agreement with the United States. In each of these efforts, debates about the role of Islam, and more specifically Islamic law, will loom large. A new policy outlook by Nathan Brown, Carnegie Endowment senior associate, reviews each area, describes how the Islamic law known as Sharia may be applied, and its implications. The full-text of the policy outlook, Debating Islam in Post-Baathist Iraq, is available only on the web, at www.CarnegieEndowment.org/democracy.

Nearly all Arab states make explicit provision for Islam in their constitutions, but the practical effect varies. The debate in Iraq began with the current Transitional Administrative Law and centered around whether Sharia is “a” or “the” source of legislation. Constitution writers face the same question, but Brown says that the structures that implement the law will ultimately determine the impact. Egypt, for example, has a fairly strong formulation that the “principles” of Sharia are “the principal source of legislation,” but the constitutional court has allowed parliaments and the executive to interpret Islamic law as they see appropriate.

Although the constitutional case over Sharia is more symbolic than substantive, this is not the same for personal status law, guiding matters related to birth, marriage, divorce, and death. The progressive 1959 law now in force in Iraq is often presented as advocating women’s rights and freedom, in contrast to the supporters of Sharia and rigidity. Brown pokes holes in this position, describing how the 1959 law, while very favorable to women, also is perceived by some as authoritarian and imposing a single, officially codified version of Sharia, not consistent with other interpretations. Brown anticipates that the deep impact and intensity of the debate may have intimidated some Islamists into making personal status law a long-term, not immediate, target.

Finally, he writes that negotiating a security arrangement has mostly political, not religious, implications. But attempts to exempt foreign troops from the Iraqi legal process—as the United States would likely see in a security agreement—could be portrayed as placing foreign law superior to the law of a Muslim society. The U.S. previously attempted to negotiate a “status of forces agreement” (SOFA) and ended up with Order 17, a fairly generous agreement in terms of rights for the U.S. military but unstable and problematic in other ways. The U.S. would prefer a SOFA, but suspicions in Iraq abound, partly fueled by lack of clarity from the United States about its plans for a long-term troop presence.

Nathan Brown is a senior associate in the Democracy and Rule of Law Project at the Carnegie Endowment for International Peace. An expert on Arab constitutionalism, he has written several books on Arab politics.
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