Scholarship in “Plain English”: Noah Feldman on Constitutional Politics and Text in the New Iraq

By Cem Tecimer

Citation: Cem Tecimer, Review of Noah Feldman, Constitutional Politics and Text in the New Iraq: An Experiment in Islamic Democracy [75(2) L. Rev. 883-920 (2006) (with Roman Martinez)], Islamic Law Blog (Apr. 2017)

Narrative Summary

Written in 2006, this article seeks to explain the role Islamic law plays in the then-emerging Iraqi constitutional order. The article proceeds in three parts. First, Noah Feldman and Roman Martinez argue that the Islamic tone pervading the current Iraqi Constitution is not an entirely novel or outcome-determinative, post-conflict phenomenon. Rather it is a product of a long process reflected in other Islamic constitutional texts with similar histories. Even before occupation, strong Islamist, secularist, and pro-Kurdish sentiments existed in Iraq among forces unified against Saddam Hussein’s rule. After the United States-led forces intervened, these once-muted dissenting voices became more heard in Iraqi politics. The current constitution is a product of the many agreements and disagreements among these three factions that, at the time of the writing of the constitution, were united in their discontent with Saddam’s reign. Thus, even before the current Iraqi Constitution was drafted, there were Islamist factions under Saddam’s rule, who, although marginalized under Saddam, emerged as key players in Iraqi politics once Saddam’s regime was toppled. Second, post-occupation populist politics further strengthened Islam’s presence in the Iraqi Constitution. The Islamists were able to pursue their agenda with democratic arguments, often alluding to the Iraqi population being majority Muslim. For the Islamist faction, therefore, Feldman and Martinez succinctly sum it up this way: “more democracy meant more Islam.” Third and finally, after taking a closer look at the text of the Constitution in detail and its numerous references to Islam, Feldman and Martinez nevertheless caution their readers that the way “everyday political practice” operates will be as important as the text in determining the true role that Islam will play in Iraqi politics.

On Pre- & Post-Occupation Iraqi Politics & The Role of the Jurists

First, surveying the political arena prior to occupation, Noah Feldman and Roman Martinez point to a vibrant, yet disorganized dissenting political community even during the days of Saddam. This included the Shīʿī Daʿwā Party and the Supreme Council for the Islamic Revolution in Iraq (SCIRI). In addition to Shīʿī factions, the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK), represented a vibrant Kurdish community and “provided a consistent voice in favor of secularism” (p. 888). There was a third faction of secularists and independents. These all formed the Iraqi National Congress (INC) with the support of the United States during occupation. The Kurdish and Shīʿī factions dominated the INC. After occupation, the American-led Coalition Provisional Authority (CPA) formed the Iraqi Governing Council (IGC) and, in the latter, most factions forming the INC were represented. While IGC’s main task was to write a new constitution for the country, their attempts were unexpectedly challenged by Grand Ayatollah ʿAlī al-Sīstānī, “the most prominent Shi‘i cleric in Iraq” (p. 891), who issued a fatwā calling for elections, and a subsequent Constituent Assembly to draft a new constitution instead of the IGC. The Assembly was essentially a selected body, as opposed to an elected one.

Accordingly, elections were held and the Constituent Assembly met and drafted the Iraqi Constitution. Shīʿī factions dominated the proceedings, but at times had to give in to the demands of Kurds and other secularists. In addition to the role of Islam in the new constitution, surprisingly, federalism was an intensely discussed issue, with the Shīʿī factions and Kurds in support of it. Overall, “the core of the document reflected a political deal between the Shi‘is and Kurds,” somewhat to the exclusion of others, notably Sunnis. Moreover, “in the Sunni-dominated provinces of Anbar and Salah ad-Din,” for example, the constitution–which ultimately entered into force–was rejected “by over ninety-six percent and eighty-one percent of voters, respectively” (p. 900).

The Text of the New Iraqi Constitution of 2004

After surveying the political landscape and role of one prominent Shīʿī jurist prior to and after the occupation, Feldman and Martinez observe that in the text of the new Iraqi Constitution, Islam was declared, with little controversy, the official religion of the state, and a fundamental source of legislation. At the same time, they look at the rights and duties enumerated in the Constitution, showing that sometimes-secularist factions prevailed, as demonstrated through the constitutional recognition of rights to freedom of religious belief and practice as well as to freedom of thought, conscience, and belief. Finally, the structure of the Constitution also plays a role, including provisions on separation of powers, judicial review, and federalism. These provisions show how, at times, parties have chosen to defer some of the most contentious issues—such as the exact composition of the Supreme Court—to ordinary politics in order to avoid conflict.

In the end, Felman and Martinez caution their readers that the text of the Constitution may not be decisive. The contingencies stem not only from the text’s own ambiguities, but also because “Iraqi politics remains in flux” (p. 920).

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