The Language of Iraq's Draft Constitution

Melissa Block talks with Clark Lombardi of the University of Washington, an assistant professor who specializes in Islamic law and comparative constitutional law. Lombardi has translated the proposed Iraqi constitution from the Arabic; he says there are some surprises in the language.

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MELISSA BLOCK, host:

Clark Lombardi is an expert on Islam and constitutional law. He teaches at the University of Washington School of Law, and he's been reading through Iraq's draft constitution.

Welcome back to the program.

Professor CLARK LOMBARDI (University of Washington School of Law): Thank you very much.

BLOCK: When you were on this program two weeks ago, we were talking about the role of Islamic law, or Sharia law, in constitutions. How is this Iraqi constitution similar to or different from other constitutions that you've studied in the Muslim world?

Prof. LOMBARDI: Well, it's fairly interesting. It does something that many constitutions in the Arab world do, which is to say both that Islamic law will be a source of national law and then to either imply or here it states explicitly that national laws cannot be inconsistent with Islamic law in some sense. But what's unusual here is the language which they use, because many constitutions in the Arab world, including, say, the Yemeni or the Egyptian and some Gulf constitutions, say that the source of law that national law must respect is `Mabaria Shia,'(ph) which means the principles of Sharia. And here was they say instead is that no law can be inconsistent with--and the word is `thoavit pam al Islam.' What the word in the Iraqi constitution means is the established rulings of Islamic law, and that's been something of a code word in the mind of many people for traditional Islamic law.

Now it's not clear that courts will agree that that's what that language should mean, but it sounds like some of the people drafting the Iraqi constitution wanted to leave the courts the opportunity to say that all Iraqi law had to be consistent with a fairly conservative or we might say traditional interpretation of Islamic law rather than the very progressive interpretations of Islamic law that you see in, say, the Constitutional Court of Egypt.

BLOCK: As you read through the constitution, do you see any indication about who actually will be interpreting these laws?

Prof. LOMBARDI: Well, it's gotten less clear rather than more clear on this area. In previous leaked drafts, the constitution established that there would be a certain number of judges appointed to the Supreme Court and that there would be a certain number of non-judges who could be experts either in Islamic law or could be law professors. In this constitutional draft, the latest one, what you see instead is a provision that says simply that the Supreme Court will be staffed by either judges or by experts in law, Islamic or, you know, law professors. This leaves the entire question open to the future.

BLOCK: I don't know where in that equation the role for, say, clerics would be. Can you tell?

Prof. LOMBARDI: The cleric would be a non-judicial expert in law. They would be characterized the same way as a law professor. So presumably what's going to happen is after the elections, you know, if all goes well in the middle of December, the Parliament will have to sit down and one of the first orders of business will be to establish a law creating a court and saying who can serve on it.

BLOCK: Are you also seeing some signs that Islamic law, as it's implemented in Iraq, would be implemented in different ways in different parts of the country? Differently, say, in Kurdistan than it would be in an autonomous zone for the Shia in the south or the Sunnis in the center of the country?

Prof. LOMBARDI: I think that's definitely going to happen, and the reason is simply because this is an incredibly loose federal structure. The most remarkable thing about this constitution is how loose the connections between these regions are. It has a very weak national government. And most of the legislative power is going to reside with regional legislatures. So in areas, including areas of personal status, these are areas explicitly left to the regions.

BLOCK: Personal status might be something like divorce, child custody, inheritance, things like that?

Prof. LOMBARDI: Exactly, all of these things and marriage. And in all of these areas, it seems, based on my reading of the constitution, that the regions would have the right to enact their own laws and to ignore federal legislation. And I would suspect that the law in Kurdistan will look very different than the law in an autonomous region in the South.

BLOCK: If you step back and consider this charter, this constitution broadly, what are the surprises? Are you satisfied with what you're seeing, or are there things in there that you find disturbing?

Prof. LOMBARDI: Well, it's really not for me to be satisfied or not. I mean, this is a document that the Iraqis are going to have to live with. A lot of this is predictable, and the most predictable thing here is that many of the thorniest issues, the issues that really divide Iraqis, are not resolved in the constitution. And what that does is it gives--it pushes the decision-making down until after elections are held. But as I said, what was perhaps unpredictable is how systematically week the central government was going to be.

BLOCK: Clark Lombardi, thanks for talking with us.

Prof. LOMBARDI: It's my pleasure. Thank you.

BLOCK: Clark Lombardi is an assistant professor of law at the University of Washington School of Law, specializing in Islamic and constitutional law.

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