Over the last two weeks Iraq’s lawmakers have struggled to pass legislation that would create a Supreme Federal Court (SFC) to serve as the country’s primary constitutional platform, and is also required for endorsing the results of a crucial early parliamentary election scheduled for October.
A piecemeal approach was adopted by the country’s lame-duck parliament to vote on the bill, which was introduced by the government and backed by ruling Shia groups to avoid the lapse in the set election date after Kurdish and Sunni Arab members showed reservations about some of the controversial terms in the draft law.
The bill thrusts Muslim clerics into the unprecedented watchdog position of deciding on the constitutionality of all Iraq’s laws and their compatibility with Islamic Sharia. Iraq’s constitution states that “Islam is the official religion of the State and is a foundation source of legislation and no law may be enacted that contradicts the established provisions of Islam.”
Opponents to the bill say it violates other provisions of the constitution which clearly states that “no law may be enacted that contradicts the principles of democracy” or “contradicts the rights and basic freedoms stipulated” in the document. They fear it will effectively turn Iraq into a theological state modelled on the Islamic Republic in Iran.
Under Iraq’s constitution, which was ratified in 2005, the FSC will be made up of a number of judges, experts in Islamic jurisprudence, and legal scholars, whose number, the method of their selection, and the work of the court shall all be determined by a law enacted by a two-thirds majority of the parliament.
However, no such law has yet been enacted and experts in Islamic jurisprudence and legal scholars have not yet been incorporated into the operation of a caretaking court established by the post-invasion Coalition Provisional Authority. The panel has been put on hold after the death and retirement of several of its members, depriving it of a quorum.
Since the beginning of the month the 329-member parliament has voted on several provisions of the SFC draft law but delayed its decision on the disputed articles, unlocking a partisan path for political deal making. In a marathon session that went past midnight Monday, the assembly worked out most of the provisions in the draft bill and adjourned for Tuesday night for a final vote.
For weeks, parliament’s mainstream groups have been involved in horse-trading over the disputed legislation.
For Kurdish MPs, the new law could be an opportunity to let parliament approve the annual state budget which has been held up by the Shia groups’ opposition to the Kurdistan Region Government‘s (KRG) provisions. The KRG wants higher allocations in the federal coffers and to share oil exports.
Kurds also hope that they can extract more concessions on Baghdad’s demands to transfer customs duties and taxes, implementing federal laws and resolving long-term issues that remain hanging between them, including an energy law which will give Kurdistan free reign in exporting oil drilled in the region.
Iraqi Kurds are mostly Sunnis and their ultimate goal is to break away from the rest of Iraq and while it will be difficult for Baghdad to impose a Shia version of Islamic law on them, instability and disruption caused by political chaos could help them to advance their independence agenda.
The SFC law is also a painful reminder to Iraq’s Sunni Arabs inability to come to terms with Shia empowerment in the post-Saddam era and feel alienated by attempts by the country’s Shia factions to push for an Islamization programme coloured with Shiasim which threatens their religious identity.
Most Sunnis boycotted the referendum on the post-Saddam constitution on the grounds that encourages confessionalism and was a recipe for the end of Iraq as a unified state but Sunnis today are deeply fragmented and many of their political leaders have joined Shia alliances and depend on their support for their political survival.
Attempts to revoke the secular features of the Iraqi state started immediately after the US invasion in 2003 which removed former dictator Saddam Hussein from power. The first such attempt came in December 2003 when Abdel Aziz Al-Hakim, a leading Shia member in the US-installed Governing Council abolished Iraq’s Personal Status Law with the intention of placing family matters in the hands of religious authorities.
The unilateral decision by Al-Hakim, a leader of the then Supreme Council of the Islamic Revolution in Iraq, during his rotating presidency of the Council, caused an uproar among Iraqi women, liberals, Kurds and rights activists forced the then US civilian governor Paul Bremer to cancel it.
A push for state-sponsored Islamization, however, has continued as part of the ruling Shia groups’ drive to implement and apply laws based on Islamic interoperation. For example, the predominantly Shia Council of Ministers in 2014 proposed a draft Personal Status law for Shias which aimed to leave a religious mark on the country’s legal system.
Under the bill, Iraqi Shias would resort primarily to Islamic Sharia law and to Shia courts to conduct personal status affairs, such as marriage, inheritance, child care and women’s affairs such as work and education, which they can only do with male permission.
The move would have automatically created Sunni personal status courts and weakened or even abolished Iraq’s long-standing civil law judiciary, pushing the country deeper into Islamization.
The law which would have allowed men to marry girls as young as nine did not go to parliament because of opposition by secularists, the United Nations and world human rights groups for fear that it would further worsen the situation of the rights of women and children in Iraq.
Yet many Iraqi Shias now resort to clerics for conducting marriage and other personal status affairs with rules especially on age and free consent sometimes not followed. In 2019, a BBC investigation uncovered a secret world of sexual exploitation of children and young women by Shia religious figures. The clerics were using Shia Sharia marriage laws to exploit women for profit, all with seemingly total impunity.
Other aspects of forced Islamization in recent years include the rise of religious institutions and practices. Political and militia groups say they are intent on enforcing specific religious strictures at a time when governmental authority is fragile and weak.
Though selling and drinking alcohol is legal under existing law, off-licenses have closed in most of cities and towns in the predominantly Shia south while in Baghdad they are constantly targeted.
The enactment of the SFC law will certainly further empower Shia groups to pursue their Islamist agenda with many fearing that the court will play a role similar to that of the Guardian Council and Expediency Discernment Council of the Regime in Iran with supervisory powers over all branches of government.
Clearly, the issue cuts to the heart of tensions in Iraq between the rise of Iran-backed groups within state and society and the anti-establishment movement which has been protesting for more than a year to reject sect-based polices and Iran’s increasing influence, demanding a secular system and a civil state.
The future of the SFC, therefore, has deep implications for Iran whose leaders have repeatedly talked about exporting Iran’s Islamic revolution to other countries in the region and cloning their Islamic state structure and its revolutionary model.
Iran has already emerged as the dominant force in Iraq through allied Shia politicians and paramilitary groups expanding its influence beyond political and security efforts to commercial, business and cultural ties and the imposition of strict religious norms in its neighbouring country will be seen as a step towards the establishment of an Islamic system of government.
While Iraq’s confessional factions could succeed in striking a compromise deal to pass the bill, in ways small and large, the new version of the legislation can hardly be seen as aiming to plug up entry points for Islamisation in the lives of Iraqis.
With all these and other tough challenges, the road for Iraq’s Shia Islamists to declare the country an Islamic State may not be a smooth one, but they will certainly never stop trying. Yet that chilly prospect could be the maelstrom that will bring out the very end of Iraq.
*A version of this article appears in print in the 18 March, 2021 edition of Al-Ahram Weekly