or Foam From a Camel's Mouth, Spewing and Subsiding
The Supposed Struggle to Succeed Grand Ayatollah Sistani
Those aware of Shi'i politics know there was been a great deal of buzz respecting a supposed attempt by Iran to groom a Grand Ayatollah, Najaf born and Qom trained Mahmoud Hashimi Shahroudi, to succeed Grand Ayatollah Sistani upon Sistani's death. I've seen pieces in Foreign Affairs to the New York TImes to the Associated Press about this. Some are simpleminded nonsense (if this happens, one report said, it will cement the hegemony of the juristic academies in Qom, Iran over those of Najaf, Iraq. Play doomsday music here.) But a fair amount is by folks who know Iraq (Reidar Visser being a leading Iraq scholar, one who knows the country very well and whose work I respect even when I disagree), and as such it is not right to dismiss this as ridiculous rumor mongering. That's how you characterize the theory that Iran is grooming Moqtada al-Sadr to be the next Supreme Jurist, the running theme a couple of years ago, which is as likely as Harvard Law School choosing Kim Kardashian as its next Dean. Even the most extreme anti-Iran figures should have seen the problem with that. You don't have to respect what the jurists do to understand that they believe themselves to be engaged in a serious scholastic exercise, and Moqtada neither has the intellect, the demeanor nor frankly the command of grammar necessary to do it.
But Shahroudi is not Moqtada, he has the skills, there really is little question about that, and he is Iraqi by birth, making the claim perhaps marginally plausible in my view, but highly highly unlikely. To understand why it is so unlikely, I turn to what separates Najaf seminaries in Iraq from those in Iran, and it is what has separated them for decades. It is what led Sayyid Muhsen Al Hakim to give Ayatollah Khomeini a bit of the cold shoulder, which later led Khomeini to castigate Najaf as "asleep" in the face of great indignities to Islam being committed by the West and its erstwhile allies, the Shah premier among them. It is also what led that Hakim to curb the activities of Muhammad Baqir al-Sadr on behalf of the rising Da'wa party, and what led to Najaf choosing, as the successor to Grand Ayatollah Muhsen upon his death in 1970, not Khomeini, but Grand Ayatollah Abul Qasim al-Khu'i, as close to an opposite to and a repudiation of Khomeini as can be imagined. It is what led Grand Ayatollah Sistani to refrain from dealing with Ambassador Bremer or sitting in a position of governance in the state. It is the Ultimate Wedge Issue, as abortion between the American political parties has been, the litmus test, the position which, if held, immediately identifies one as suspect and heterodox, perhaps more susceptible to the ideas of the other. It is the doctrine of Guardianship of the Jurist, or Wilayat al-Faqih. To summarize, Khomeini and Muhammad Baqir al-Sadr created it, Najaf rejected it, and it became the law of the land in Iran and the theory in Qom.
When he was asked about Wilayat al-Faqih, Khu'i, the guy chosen instead of Khomeini remember as Supreme Jurist, indicated of course there was such a thing. For when an orphan has no grandfather, and neither father nor grandfather has appointed a guardian for him, then the Jurist becomes guardian, hence "guardianship" of the jurist. Get it? (Those who wonder "wait, what about the mother" will have to wait for my casebook on Islamic law which is in its early stages. Suffice it to say for now, mothers can get custody, but not legal guardianship, as in making decisions on behalf of their kids. For later.) Khui's rebuke is as close to a spit in the face as a Najaf jurist ever gets--it's indirect, but very very clear. Khomeini's idea is so worthless I'd rather not waste breath talking about it is the import. And in my (many) trip to Najaf and speaking to Grand Ayatollah and rising stars in the academies alike, I've heard the mantra "the Jurists have no place in politics" so often it can get tiresome. Ask them then about Qom, and you get some polite indirection, indicating they don't share the view of their brethren out there.
So will Shahroudi continue to advance this theory of Guardianship to lead Najaf? He would then have about as much chance as a pro-life Republican winning the Republican primary in Mississippi. Does he drop it (again, more indirectly than a US politician can, indirection isn't the style in the US) and find he really didn't think much of it all along? Then he has the Romney Problem, except this time it's Romney not as a one term pro choice governor but as an ideological leader, or at least strong supporter, of the National Abortion Rights Action League, for 25 years, before two years ago discovering he actually really is pro life. Shahroudi didn't just dabble in Qom or study there for 5-6 years, it's decades we're talking about. I don't think that's easy to overcome.
Can it be? Perhaps. Is Iran trying? Perhaps, though perhaps they just want to build influence in a city where they actually have very little relative to their influence in Baghdad. Will it work? I think when you take into account Shahroudi's position on the Wilayat al-Faqih doctrine, and Najaf's consistent, repeated rejection of it over decades, it's a tall order indeed.
HAH
The New NDI Survey of Iraqi Attitudes
It was once said that the end of Iraq was near, seems to me if anything is dying, it's the notion of broad Iraqi federalism. It's a centralized state, with one asymmetrical region populated by the one of the three large groups in Iraq that legitimately refers to itself as a distinct people. It's called Kurdistan. There is no Shi'istan, nobody thinks of their nation as being Shi'istan, and if someone can find me someone from the Anbar who calls himself Sunnistani, you've managed something pretty extraordinary. "Sunni" or "Shi'i" is a religious allegiance, not a political one. Glad the NDI poll helps demonstrate that.
More on this in my recent Jurist article here. And much, much more on it when my book on the Iraq constitution comes out, ever nearer it comes.
HAH
Iraqi De-Baathification and Egyptian "Political Isolation"
What the demonstrators today are demanding is that the Law of Political Isolation-- (عزل سياسي) whoever wants to translate it better is welcome to--be given full effect by the courts. That law, from 2011, is meant to remove from positions of office particular high members of the former regime and call them to account. What we in Iraq call "de-Baathification".
Now I'll admit to some extent the comparison is provocative, at least if compared to the broad purge that the Coalition Provisional Authority, America's government on the ground in Iraq at the time, seemed to implement in its first Order after taking control of Iraq. But a great deal of the sound and fury surrounding de-Baathification in its later stages following legislative reforms has been with respect to people removed from electoral lists, most famous among them Saleh Mutlaq, for alleged ties to the party. It was removing him that led naysayers in Iraq to declare the democratic experiment dead, or at least dying. How could you just up and take out a leading contender because you didn't like his politics?
And yet, one could say the same of Ahmed Shafiq, the former Mubarak henchman, his last Prime Minister, and a top vote getter in the presidential election. He is at the very center of this demand to implement the law, a desire get him booted from the runoff election. In fact, one could quite favorably compare the two of them, Mutlaq and Shafiq. They both extol the benefits of security that come from a strong central government. They both describe the former authoritarian ruling parties as having been quite good for their respective countries. They both describe the former dictators in generally positive terms though both cautiously hedge that with vague indications that mistakes had been made. Clearly, they're both trying to hit the same constituency--people who kind of liked the way things were and want to go back to them and adding just enough distance to perhaps win over a few others interested in greater personal security.
Want to add insult to injury? That law, the Law of Political Isolation, it's not really a new law. It's an amendment to an old law, the Law of Treachery, No. 344 of 1952. (I'll translate غدر as treachery and again fix it if you think you have a better translation. Not treason though, you have to distinguish between غدر and the far more serious خيانة عظمى) Anyone remember what happened around then? Nasser came in just before, threw out the king and his henchmen, and in comes a law declaring particular members of the former regime as guilty of "treachery". Victor's justice.
Now I'm sure the massive demonstrations led by the very same youth that brought Mubarak's downfall do not believe themselves to be engaged in an exercise of victor's justice. I am sure they think they need to preserve the democratic experiment in Egypt, that it is fragile, and that particular threats are posed by candidates who look sound and feel like the former regime, because they might very well simply bring back the days of the old regime. And it's not like Shafiq does much to dispel those fears.
Then, again, neither did Mutlaq. And the Shi'a would insist just as today's Tahrir demonstrators would that they are engaged in precisely the same exercise--preserving the democratic state. They would defend the attempted prosecution of the vice president Tarqi Al Hashimi on precisely the same grounds. (The Hashimi prosecution is not just power grabbing by Maliki, the Shi'a approve of this action he took 82% to 17% by a recent NDI poll, far more than his general approval rating among the Shi'a). There is a genuine belief that he has supported terrorism. Whether or not true I leave to others, the point here is that just as the Tahrir demonstrators would not be thinking of themselves as merely engaged in a form of forcing their politics onto those they have vanquished, so the Shi'a parties would say they are only concerned with preserving the democratic state, not punishing Sunnis, and would point to any number of Sunni leaders with whom they disagree whom they haven't sought to prosecute.
And just as the Sunnis dismiss that as so much hogwash, I could virtually guarantee you that if Shafiq was disqualified, those who do support him will describe it as a deep affront to democracy, an attempt to sideline the political preferences of the vanquished. To "isolate" them, as it were. (Obviously more dangerous when the divisions line up on sectarian lines as well as political ones, so Iraq is in that sense more precarious, but that point is orthogonal to the one I attempt to make here, that people on each side see the efforts to remove the other from political office quite differently.)
I could go on, throw in the decision to throw out the electoral results in Algeria in 1991 after FIS won resoundingly, but it adds little to the analysis. Who is right in the end, Sunni or Shi'a, Shafiq supporter or Tahrir demonstrator, FIS Islamist or secularist certain that Algeria will devolve into "one person, one vote, one time" if FIS takes control?
Let's just be a bit forthright about this and admit that all of these efforts at isolation and removal, from de-Nazification all the way through to the Law of Political Isolation currently at issue in Egypt, arise from mixed motives. Certainly the defended motive--to protect the democracy from those who would seek to end it--is present. And it surely is not lost on those asserting it that they are removing political competition from detested adversaries at the same time. How prevalent one or the other happens to be just depends on what side of the fence you happen to be sitting on.
HAH
Misplacing Authority: Revisiting the Dow Jones Fatwa
To those who might be unaware, Islamic finance truly began to find its way in the equity markets after the issuance of the Dow Jones fatwa in 1998, and I think that fatwa manifests much of what I find wrong in Islamic finance generally and what passes for Islamic exegesis in our time specifically. So I thought I'd spend some time on it.
According to that fatwa, investing in equities became permissible so long as the underlying company did not have debt (or cash) that was greater than one third of its capital, or revenue greater than one third of assets. The fatwa is more intricate than that, and to understand its intricacies I refer you to the splendid work of Michael McMillen on the subject on SSRN, but I think it covers the gist of it. Effectively, due to the prohibition on interest that Islamic finance focusses on, if your debt to market capitalization is more than 1:3, or you had receivables that seemed to be only the type that would come not from assets but from lending (i.e. incoming is almost a third of your asset value), then the pious Muslim cannot invest. Otherwise, it's okay.
And where, pray tell, does this magical one third number come from?
The Prophet came visiting me while I was (sick) in Mecca. He said, "May Allah bestow His Mercy on Ibn Afra." I said, "O Allah's Apostle! May I will all my property?" He said, "No." I said, "Then may I will half of it?" He said, "No". I said, "One third?" He said: "Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others . . . .
Yes, and one third is too much. This is one of the more well known hadith on this subject, there are a few others to the same effect and as the statements of the Prophet Muhammad are sources of Islamic law, these have been taken among Sunni and Shi'a alike to restrict the ability to bequeathe to one third of a person's assets on death. The balance revert to heirs, who are either close family members or a combination of close family members and tribal agnates depending on if you are Shi'i or Sunni. Much more on that in an upcoming casebook, but it'll be a long while yet.
But the more pertinent question: What in the hell does this have to do with the debt to market capitalization of companies? "One third is too much" refers to that? Why? Does it also refer to how many periods of a hockey game I can watch (one of the three, and even that is too much). Or how much of Disney World I can see before I can call it a day (max one third, and after that get out I don't care if you've seen Space Mountain yet). How much of the guacamole sitting on my desk I'm allowed to eat right now (there one third surely is too much). You get the point, obviously unless the statement is taken at such a level of abstraction it is absurd it cannot possibly refer to debt to market capitalization ratios.
Ok it's a little silly, you say, but what do you want, you academic nag? The issue is if you say that you cannot invest in a single company if it takes or pays a dollar in interest, then effectively you are shut off from all commercial activity in the world. Everybody has a loan somewhere, and all these good folks are trying to do is draw a sensible line between Citibank and Facebook. Every socially conscious person who wishes to live in the real world does this, right?
The answer to that is yes, every socially conscious person does this. They decide where the line is and they try to live by it. But what they don't do is take words that are supposed to be sacred, sacrosanct, unchallengeable and throw them out to defend their particular line, thrusting into sin everything on one side and rendering pure everything on the other. And that's what this does, if you take it seriously, doesn't it? If you were to bequeathe, say, 35% of your wealth to people who aren't heirs under the Islamic system, wouldn't the pious person say you cannot do that, it's forbidden? 32% is okay, and 35% is not, and the difference, the true difference, has nothing to do with sociological or economic advantages (my friend Timur Kuran says in fact this whole system was economically disadvantageous), it has to do entirely with the fact that the Prophet permitted the one, and prohibited the other. Here too, the line is 33% based on this? Do we even know how many companies fit the profile and how many do not?
What I think you should do, if you're out there trying to come up with a program for investing in Dow Jones while maintaining what you think are necessary bans on interest and speculation (no need to critique those here) is stop with the fatwas and be honest and forthright about what you're doing. Indicate that the issue is that there are real world constraints at work, and that Muslims inhabit that universe. Run a study showing how much indebtedness, or alcohol business, or speculative activity a wide span of companies engage in, and show how many are below a particular line (one third, one fourth, one fifth, whatever) and how you think that this particular line is sustainable, and God knows best. Accept like the rest of us you're trying to muck your way through the messiness of the world, and doing the best you can given the limitations. And then throw out a number, based on analysis, defend it, based on reason, and invite others to develop their own models and their own data. We'll get to a consensus eventually.
And then while we're at it, if we all agree this is supposed to be about achieving social justice and fairness (as per Prophetic command, and what are the Qur'an's stories if not parables of speaking truth to power), we can talk about compromises and uncompromisable principles there too, what might be possible and what not, where to bend and where to insist on improvement. More information, more argument, and then perhaps our piety will lead to the betterment of the Muslim poor.
Or we could just dig through the hadith compilations, grab a number, strip out the context, throw a guy with a turban and a beard out there to declare it, shake our heads solemnly as a discovery or at least our best guess of Holy Command and we've studied so we know best, and then hope the world doesn't ask too many questions. I guess that way is easier.
HAH
Facts and Abstractions
If you actually want to know whether or not people think it's a good idea to chop other people's hands off if they steal something, why don't you just run a poll asking them that?
Leave aside the Qur'an, leave aside juristic rules and exceptions, leave aside whether or not this is a proper, justified, applicable in our times Islamic punishment and just ask them what they think of amputation for theft, and see what they say. Instead you say "Qur'an", vast majorities of people express support, then you start drawing conclusions based on that on amputations, which you never mentioned in the question.
If you asked the same question respecting the relationship of law to the ten commandments in the United States right now, what answer do you imagine you might get? I suspect in some parts of the country you will have overwhelming support in favor of America being ruled by the ten commandments as a matter of law. May we on the basis of this begin to prognosticate as to what the effect of nursing homes will be, given that vast majorities now wish to have laws that enforce the dictate that we honor our father and mother? Should we predict that come November, there might be laws (as there are in many countries) establishing a financial obligation on individuals to care for their parents, even as they are under obligation to care for their children?
Or might we perhaps draw other conclusions, among them that lots of people support the ten commandments without knowing even half of them, that what they mean by being ruled by them, even strictly by them, isn't all that strict, that some feel that the moral injunctions contained in them aren't actually intended to be legal, or they feel that the commandments shouldn't be interpreted in the manner that would favor a massive change in policy and that to do so is a perversion of the commandments themselves.
The problem, it seems to me, to borrow from one of my favorite critics, Lionel Trilling, is a broad media commitment to the abstraction rather than the fact. (Trilling's memorable line from "George Orwell and the Politics of Truth"--read it if you haven't). "Do you want a government whose laws are based strictly on the Qur'an?" is an abstraction. To concretize it, you would have to know precisely the person's understanding of what the Qur'an requires, and how the law will go about achieving it. Otherwise, it sounds suspiciously like "Qur'an, what's your view, good or bad?" And much like if you asked the same question respecting the Ten Commandments (a question which would be another abstraction) to someone in a Christian society, a question like that to anyone devout has an obvious answer.
Of course, rather than the ten commandments analogy, the better one would be perhaps to asking Americans whether they wanted a smaller government. Overwhelmingly, they'll say yes. Anyone who takes that to mean that Americans want to cut social security and medicare is confusing the abstraction for the facts. The facts are that whatever Americans mean when they commit themselves to the abstraction of smaller government, they are not referring to those parts of the government that are by overwhelming margin its biggest.
So if you really want to know what's going to happen after the Arab spring, if you really want to know if criminal laws will change, or laws of public dress, or whatever, or more precisely if you want to know if the public wants these things, ask about them. That gets you facts. Asking the public of its commitment to religious law, or even whether or not the religion in some vague sense should play a role in the state, is all just abstraction.
HAH
A Visit to the Suleymania Court House
On my last visit back to Iraqi Kurdistan, I made a special trip to the new courthouse in Sulaymania. I have been visiting the Sulaymania courthouse ever since my graduation from law school in 2003 in order to meet with colleagues and observe court proceedings. The visit was always trying. Until recently, the courthouse was in the middle of the most crowded place in the city. It was dirty and small, unbearably hot in the summer and uncomfortably cold in the winter. My visits reminded me of my summer clerkships in that courthouse during law school and the long hot days trying to pay attention to the proceedings in the difficult conditions. Still, I looked forward to these visits each time to keep up with the administration of justice in my home country.
A little more than a year ago, I first passed by the planned new courthouse (it was not finished yet), and immediately realized it was going to be quite different from the existing courthouse. It was outside the city, much larger and at least from the exterior it seemed quite impressive. So when I went back to Iraq this March, I was very excited to hear that the new courthouse was functioning, with all personnel and casework having been transferred to it from the old courthouse. I then contacted one of my friends and asked her if I could watch her in her active cases and also observe other pending matters taking place there. She was delighted to help.
As the taxi stopped in front of the courthouse, I saw two check points before walking in to the building. One was for men, and the other for women. As I was waiting for my turn I observed the male line where my husband was standing. There was another person ahead of him smoking. The first thing the guard told him was that he is not allowed to smoke in the building and must throw away his cigarette. As per usual practice in Iraq, the man just threw his cigarette on the ground. The guard reacted angrily asking him to pick it up and put it in the garbage can out of respect for the environment and the courthouse.
This made me reconsider my previous articles on anti-smoking laws and the protection of environment in Iraq, where I criticized the laws for being entirely unenforced. These laws are not properly enforced by the government in all respects, but clearly there have been important steps that have been taken. I have never before seen anyone seek to enforce a littering law anywhere in Iraq. The efforts showed; the courthouse was visibly cleaner than most establishments in Iraq.
Walking to the new building was a new experience for me in Iraq. Not only was it clean, but it was organized and resembled a courthouse almost anywhere. The judges hold hearings in courtrooms that are designed purely for court proceedings. (In the old courthouse, the judge’s chambers were the courtroom). There is ample, comfortable seating for the public in the back, and in the front a wide, large judge’s bench, a court reporter’s desk with a computer in front of it, and separate tables for the plaintiff and the defendant. Behind the judge’s bench were two large flags, one on each side of the judge. The flag on the judge’s left was the Iraqi flag, and on the right was the flag of the Kurdish region.
One thing that still needs work is efforts at computerization. Despite the fact that the court reporter has a computer on their desk, it goes unused. The reporters still write out everything in longhand, and file all papers in file cabinets rather than electronically. Thus, there is no actual court transcript of the proceedings. Instead, the judge summarizes testimony before the witness and lawyers, and the court reporter transcribes the summary. It is also very hard to search for cases and decisions, because they are only filed in hard copy chronologically, which is not how anyone usually searches for useful precedent.
The first case I witnessed involved an effort by a husband to obtain a judicially ordered dissolution of his marriage from his wife. Though husbands are permitted to divorce their wives in Iraq and under Islamic law unilaterally through a process known as talaq, there are financial ramifications for doing so. The part of the proceedings I witnessed involved testimony from the husband’s father, who indicated that his wife had told him that the son's wife was particularly harsh with her, shouting at her frequently and dismissive of her concerns. The questioning was conducted entirely by the judge, who as is the case generally in civilian jurisdictions involved himself extensively in the proceedings. After he was finished, he informed each counsel that they could ask any clarifying questions if they wished, but nothing further than this. He also allowed the wife’s attorney to place on record the fact that the testimony was hearsay and therefore should be given lighter weight by the court. (Iraq does not have a prohibition against the use of hearsay testimony, but it is under the Law of Evidence supposed to be discounted).
The second case was a felony case that involved a very serious car accident, with the charge being something akin to reckless homicide. We did not have an opportunity to see a great deal of this case. The case was in its early stages, and as is typical in Iraq, relatives of the victim were sworn in to testify as to whether they were seeking compensation. (Under Iraqi law, criminal cases are often combined with tort cases, and thus claimants are given an opportunity to demand compensation during the criminal trial. If they decline, they are always free to initiate a civil claim later, though the findings of the criminal court will be binding on the subsequent court). The relatives were asked to swear on the Qur’an, and when the judge announced this, the entire room stood, as is custom in Iraq, when the Qur’an was presented for them to swear on. They then stated they would not seek compensation, and by the time this process was completed, we were forced to leave.
Other proceedings we had even less of an opportunity to witness. We did sit in on a complex commercial litigation, and just as we were beginning to understand the contours of the case, which involved the valuation of a business, the judge suspended the proceedings to appoint an expert to assist. We also saw a misdemeanors proceeding where a judge berated a defendant who insisted that he was not selling weapons but only had them for his own protection. The judge angrily gestured at the evidence, which was a fair amount of weaponry, and asked why anyone would need several automatic weapons to defend themselves. Unfortunately, the day and the court sessions ended, just after noon, before any final determination was made in the misdemeanors case.
Overall, I was encouraged. I am more optimistic that rule of law will have a better place in Iraq over time, and that Iraq will get over the obstacles that it faces every day if it continues on this course.
Sara Burhan Abdullah
What the House of Islam Might Learn From Europe
We equate a secular state with modernity, but this is a Eurocentric vision, based on the fact that Europe found itself decimated by endless religious wars over heresy and orthodoxy. The Muslim world is different, and has a different history. Therefore, the lessons applicable to Europe are not applicable as to the Muslim world and we should stop trying to insist that they are. Not every place needs to develop its state model on European lines.
It's a fairly common theme, by no means a ubiquitous one, but something like it is commonly expressed in defense of the religious nation state. Personally, I'm not as concerned about the House of Islam historically, though we've spilled a fair amount of blood over religious questions too. More, less, who knows, the historians can tell me.
My own incredulity relates to how anyone living in our times could credibly come to this conclusion. Are you watching the news? The Arab world rises in democratic fervor, demands are made related to national citizenship, to government reform, to democratic participation, and do you want to know where they falter? I can tell you. They end where the sectarian fault lines begin. It is there where the dictators survive, their hegemony unaltered absent the extraordinary act of American invasion as in Iraq. For however appealing the demand of the "people" to alter the government, however romantic the attachment to democratic and popular rule, however emotional the sights and smells of Tahrir Square, they don't hold a candle in a raging debate over whether Omar or Ali was the better caliph 1500 years ago.
Am I wrong? Find me a Sunni mosque, even a progressive one, even in America, where the right of the Bahraini people to demand the fall of the regime is mentioned. You'll hear Syria, you'll hear Libya, you'll hear Egypt, but you won't hear Bahrain. In fact, you might even hear as I have in social gatherings that we have to intervene in Syria or we will lose it to Iran "just like the mistake we made in Iraq." In Iraq, America intervened to create democratic rule. In Syria, it refrains from doing so. The only way that the failure to intervene in Syria can be understood to be a mistake "like we made in Iraq" is in sectarian terms--both the intervention in the one and the lack of intervention in the other are prejudicial against Sunni interests. National citizenship and democratic participation founder on the shoals of deeply rooted sectarian animus, which rules wherever it rises. The person making the comparison probably didn't even realize he had reverted from democratic ideals into sectarian commitments, how easy the slide is for us.
And it works both directions, let's be clear. Find me a Shi'i mosque where the right of the Syrian people to change their regime is extolled. There you'll hear Bahrain and all about Sunni double standards, never mind that Hafez the butcher gets a pass despite human rights violations that are starting to make Qaddafi look a bit soft hearted.
I'm told that the Arab revolt succeeds where the army stands with the people and it founders where the army is willing to turn its guns on them. True, but look deeper. Why would a military composed of national citizens wish to turn their fire on their fellow citizens demanding and asserting their right to rule themselves? What causes them to think of such people as, to use Qaddafi's term, "rats" who deserve to be exterminated?
Easy, they don't see them as fellow citizens, they seem them as sectarian rivals. That woman isn't my fellow national aspiring to democratic participation, she's a Persian leaning Shi'i who wants Iran to take over my country, an Ali worshiping traitor. Shoot her, or rape her, or do whatever you want, the similarity of her passport to mine is of no moment. That 14 year old young man over there isn't part of the rising youth of my nation, its hope and its future, aspiring to great achievements. No he's a Sunni supremacist who is going to import Saudi type Wahhabism to repress us and deny us the ability to visit the graves of our Imams and their families. Put a bayonet through his filthy neck. The multisect societies that do exist democratically (Lebanon, Iraq) are better, yet they are racked by continual political crises and unable to form strong governments because of the perduring tensions.
We escaped Europe's dilemma? We are living Europe's nightmare. There's one way out, and that is to begin to realize that the state and affiliated political loyalties cannot and should not be defined in religious and sectarian terms, that to attempt to do it fails. (And, to be clear, the softer version of the Islamic state popular nowadays--declaring that a state should be governed by the "goals" of the shari'a? All my other well publicized problems with it aside, in the states that are composed of the two sects, that's just a nice way of demanding Sunni supremacy. It's judicial review based on amorphous Sunni medieval theories--just how do you think that goes down among the Shi'a?) If we dropped the religious affiliation, if we allowed that people will have their religious loyalties and they may be embraced, even with fervor, but as a form of political affiliation and as a means to project values onto the state, they will only lead to intolerance and bloodshed--if we did all that, then we might just take that next vital step toward successful, peaceful, economically prosperous societies.
But to do that, we'd have to learn from Europe's mistakes.
HAH
The Iraq Federal Supreme Court and "Islamic" Legislation
Just wanted to let everyone know about my latest post on Jurist, which isn't so much about the Iraqi Federal Supreme Court avoiding shari'a, as what it does when it's faced with Islamic legislation, meaning an area of law that is either codification of shari'a or at least draws significant influence from Islamic rules. If you think what they do is actually interpret shari'a, or subject the legislation to review to ensure compliance with shari'a, rest assured they don't. Article 2 of the Iraq constitution remains as ornamental as it has always been. For details, read the article.
HAH
The Iraq Federal Supreme Court Avoids Interpreting Shari'a--Again
Loyal readers of the blog know my longstanding contention (see link for a shorter scholarly article on the subject) that the Iraqi Federal Supreme Court will turn over heaven and earth to avoid the undertaking the interpretation of shari'a. The reason is that the court's position is from a legal standpoint somewhat precarious--technically it is a "caretaker" court, composed on the basis of a law that was enacted prior to the current Constitution, and the current Constitution clearly envisions the enactment of a new law in Article 92 pursuant to which a new court will come into being. Hence when it makes a decision that one faction does not like, as when it decided that Maliki could form the 2010 government post election rather than Allawi, this is pointed out to it, thereby translating that legal precariousness into one with political implications.
For the most part, the Court has managed to do a fairly good job burnishing its credentials despite these vulnerabilities--the above referenced complaint by Allawi ally Tariq Al Hashimi was easily brushed away given that Hashimi himself had come to the court not long before to demand his presidential council salary on the basis of his participation in an institution that preceded the constitution (and pursuant to a law that set the salary that likewise preceded the constitution). Other institutions that are far more controversial, for example the Accountability and Justice Commission (fancy ne official name for the de-Baathification Commission) have a harder time justifying their caretaker status. Still, the Court is aware of this.
In addition, there is Najaf. A famous commentator on the Egyptian Supreme Constitutional Court once told me that the Court when it interprets Islamic law always gets a view from the Azhar in Cairo, that pinnacle of Sunni learning, and always throws it away. Well if that's what they do in Egypt, it's certainly not what they do in Iraq. The Court doesn't need Grand Ayatollah Sistani as an enemy, it knows that, and it's not likely to provoke him by interpreting shari'a differently than he does. (One exception provided in the linked article).
But this post isn't about that, I say three paragraphs in burying my lead. It is instead a response to those, including not a few lawyers, who object and tell me the Court simply cannot avoid Article 2 questions on Islamicity and law because its jurisdiction is mandatory, unlike that of the U.S. Supreme Court, whose jurisdiction is basically discretionary. The Supreme Court decides to hear a case through a process known as issuing a writ of certiorari--the Iraq Federal Supreme Court is obligated to hear particular matters. There you go, they say, the procedure proves you wrong, they say.
And I say, oh, how cute, formalists! (Too smarmy? Maybe, sorry.) Anyway, the fact that a court doesn't have discretion to turn down a case doesn't mean it will decide it, it just makes it a little bit harder to avoid. But it still can be done, it is done with some regularity, in fact, everywhere. To illustrate, let us take a closer look at the Iraq Supreme Court in operation:
Decision 54 of 2010
Parents of a soldier killed in war want his apartment. It was given to his widow I think and the decree giving it to her (issued by the Ba'ath era Revolutionary Command Council, or RCC) stipulated it could not be inherited, it would go back to the state when she died. Allegation is this violates shari'a inheritance rules.
Decision: The parents took a sum certain pursuant to the same RCC decree. You can't take with one hand and then insist the decree violates Islam on the other. It's what those of us familiar with the common law and the equity courts would refer to as "unclean hands". Shari'a avoided.
Decision 39 of 2011
Husband divorces his wife unilaterally through the Islamic procedure available to husbands known as talaq. But he does so arbitrarily a lower court finds, and therefore holds him liable for alimony for two years after his divorce. He claims the relevant provision permitting this alimony violates shari'a because the jurists never suggested such a result, or any financial consequences for issuing a divorce like this for a good or bad reason.
Decision: The wife isn't the person who can defend the constitutional claim, it's not her claim, it's the state's claim to defend. Dismissed. Shari'a avoided.
[This actually isn't as crazy as it seems to Americans. In the U.S., it would be insane because the Supreme Court is the highest appeals court, so if you are challenging a statute, say a defamation statute as in New York Times v. Sullivan or Flynt v. Falwell, effectively you have to do it as a defense to the defamation claim against you, and take it up. The other side is a private party, that's who raises these claims. Naturally there's probably an amicus brief filed by the sovereign with the law, but they aren't really part of the case. But when you have a constitutional tribunal, the way it is supposed to work is the question usually gets certified by a lower court or maybe raised by a litigant, and it isn't unusual for the constitutional tribunal, which really only deals with that one issue, to hear it separately and involve the state. The French Constitutional Council for example did get the PM's view on its own defamation statute before ruling in 2011 that its existing defamation law was unconstitutional because it did not permit truth to be a defense more than ten years after whatever is being reported occurred.
Still, you'd think the court could have sought the state's view, rather than merely see it wasn't present and then dismiss the case because of that. Still, as I said, not crazy, in fact depending on unpublished procedural details respecting how it got there quite plausible.]
Decision 99 of 2011
The Basra Appeals Court certifies the following question to the Iraq Federal Supreme Court. Does the Liquor License Law, No. 3 of 1931, violate the settled rulings of Islam as per Article 2 of the Iraq Constitution?
Decision: There's no pending reported case about this, so the Basra Court acted out of order and beyond protocol by asking this question. Dismissed, with costs to that court.
[Ouch. I honestly don't know what happened here. If I was in Basra right now, I'd find out. But since I'm not, I'll speculate. Iraqi judges have their foibles like all of us, but they are professional, serious, hardworking people I cannot believe three appeals judges sat around Basra drinking tea and eating baklava and thought to themselves, "Hey here's a question! Let's go ask the Federal Supreme Court about it, just for kicks." If they did, they deserved the Court's smackdown.
More likely, they just didn't include reference to the underlying case because they didn't think it important, or they were pressured by some Sadrist notable down there to issue the question despite there being no pending case, or they did mention it somewhere but it helpfully got "lost" on the way to Baghdad and hence the Federal Supreme Court ignored it. Something in the nitty gritty happened here, something not relayed in the facts, that made it helpfully easy to get rid of.]
Avoided, avoided, avoided. In each case, on plausible grounds. In each case, an alternative result was not impossible to reach. And that's how you do it when you don't have the power of cert.
HAH
The Early Elections Debate in Iraq
For those unaware, while the nation's business does move on slowly and fitfully (Iraq is never quite as bad as the pessimists say, its government and legislature do function), the state is insecure on any global measure, desperately needed legal reforms, particularly market related reforms, proceed at a snail's pace in the best of times, the government remains woefully unresponsive and inefficient and most importantly, we're in the middle of a political crisis, with Sunni leader and Vice President Tariq Al Hashimi in hiding in the Kurdish region because of allegations of terrorism, a dispute over the largely failed attempt by the PM to remove Sunni Deputy PM Saleh Mutlaq, and traded accusations of who has failed to implement the famed Erbil accords that are supposed to create some ground rules for the existing government and its operation. Given this, there has been talk of a national conference to address the outstanding issues (more particularly President Talabani has called for such a meeting, and everyone else agreed in principle), but they cannot seem to get beyond arguing over the agenda for the meeting, and so it has sat for months. Hence the popular frustration. It's not incipient dictatorship (a dictator who can't even manage to get his own deputy Mutlaq fired? You think Saddam had that problem?), but it is hardly a paragon of good governance.
But another damn election to settle the matter? How is that going to happen? Let me inform you of the results from now. Some number will vote for Maliki, accusing Mutlaq and Hashimi of treason, and insist the solution is to give him greater control. Some almost equal number will vote for Hashimi and Mutlaq supporters, and demand more accountability from Baghdad vis a vis the Sunni population in particular. Some more hardline Shi'a will vote for the Sadrists, who won't find either side appealing and the Kurds will have their representatives running around mediating. Know what that looks like? The current parliament.
I think Iraqis have managed to dupe themselves into thinking we are less divided than we are. You take your average Baghdad bread seller, he figures he sells to Sunnis, he sells to Shi'a, a few Kurds buy from him too, and so he has no difficulties with these guys. They cannot manage to get along in the government, he thinks, because they're just being unreasonable. We'll replace them, bring in some more reasonable people, and they'll do what we want, which is come together and solve these problems that have left everyone divided. (Come to think of it, maybe Iraqis aren't all that different than Americans in this regard).
Except we tried that, it doesn't work. The reason the bread seller gets along with the different Iraqis is because he doesn't talk politics with them, and has no control over those issues of dispute. If he was forced to sit down with someone of the opposite group and discuss, say, the Hashimi matter, they'd be just as divided as the people in the legislature. Which is why a new election won't change a thing, it'll just bring back the same divisions, perhaps with new personalities occupying the roles, but the same divisions, all over again. There's no new result from doing it over again, because the problem isn't the representatives, it's a problem in the nature of the society they represent, and the deep divisions that society has respecting the state they envision Iraq being.
HAH
