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.
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.
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
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.
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.