It is rightly observed that in the IC, fundamental rights are under the protection of Islam, which is considered the State religion. This should neither scandalize nor give rise for preoccupation.
In the first place, we must bear in mind that writing, for the Moslems, has a very particular significance. It is not just a simple means of communication, but the concretization of the presence of God in the world. The pages of the Koran, for the Moslems, are sacred in themselves, not only for their contents. Every piece of writing, therefore, returns, in the final analysis, to the original writings; to the pages of the sacred book, in which the divine presence of the world is realized. The reason for which, in the Islamic world, if one proceeds to put a principle in writing, one cannot but return to the source which legitimizes the act of writing itself, and that is to the Koran.
Furthermore, when one speaks of fundamental rights, from the Islamic point of view, one is not speaking of natural values which are independent of the religious truth. In some respects, this is also true for Christians, in whose faith, however, there is the central element of divine incarnation, which redeems the human being in his entirety and universality, rendering him, in a certain sense, free from God himself (a donated freedom is naturally not reversible, otherwise, the sacrifice and the resurrection would have been futile). Vice versa, in Islam, the dignity of man, to some extent, hangs by the will of God, who is unchallengeable and dominates all.
This emerges also from the juridical documents of contemporary Islam. The rightly famous Declaration of the Rights of Man in Islam of 1981, begins this way: “For fourteen centuries Islam has presented in form of divine law (the Shari’a – the Shariah) the ‘Rights of Man’ in their entirety and in their implications”. It goes on to affirm that Islam “the last (in the sense of definitive and perfect) of the messages come from heaven”. The declaration of 1990 (the Cairo) is nearer the western sensibilities, but we read, however, that the Umma is “the best community that God has created”(preamble) and that Islam is the “natural religion” of man.
The Islamic schools of law differentiate from one another in their ways of interpreting the Koran. None of them questions the sacred text. And this is strictly connected to the fact that in the Islamic civilization, the existence of a neutral space with respect to the revelation, is not recognized. The Shariah is observed not ‘in spirit’ but ‘to the letter’.
What is more, this literalness represents one of the principle guarantees of order in the public life of the Islamic countries. Whereas, if the Shariah is questioned, the results could be unpredictable. In fact, also in the contemporary Islamic juridical culture, there have developed, as in the West, realistic and dynamic interpretations of the law, centred on the re-dimensioning of the written regulations and tradition, in favour of the “law in action”. But this interpretation, which many felt was a déjà vu of the western influences on the formation of the young Islamic intellectuals during the first half of the last century, led to a violent radicalization of Islamic tendencies.
According to Sayyd Qutb, spiritual guide of the ‘Moslem Brothers’, the rebirth of Islam involves a sort of ‘zeroing’ of the tradition. In his opinion, one cannot think that in the situations in which Islam is oppressed and in the minority, the same rules can apply as when the Umma was still a complete entity and the Shariah was in full force. In certain respects, the Islamic thinker reinterprets also the noted concept of the “state of exception”. According to Qutb, the written rules and the tradition must give way to the reopening of the question regarding the original decision which institutes Islam: the subjection of the world to the divine will. If this decision is threatened by formal legality or by written law, it is these last that must be enclosed between brackets. It means that one is authorized to perform acts which are traditionally condemned by Islam – such as the massacre of women and children – in the name of the decision which constitutes the Islamic reality as such. In the final analysis, the source of the law is in the same activity of the “combatants” and the “martyrs”.
In short, modernization, in the Islamic world, does not necessarily mean the affirmation of positions of moderation and tolerance. In certain respects, reference to the Shariah, in all its literalness, could be a guarantee for political equilibrium.


“Laicism” and “clericalism”
two categories not to be used

The presence of the Shariah in the IC is also to be view with respect to the particular relation which exists in the Islamic culture, between religion, politics and national spirit. As it is said, the national sentiment of the Moslem corresponds to his knowledge that he belongs to the best possible community. There is no place for differentiations of an ethnic type in the Umma[. Certainly, they exist, and there is no lack of rivalry among the Arabs, Iranians and Turks. And many times, this rivalry – which has also had hostile consequences of no small proportion -- has become entwined with the Shiite/Sunnite contrast. And, yet, every antagonism, within Islam, is legitimized on the basis of Islamic universalism. So that, the definition itself of the national and political element, is placed on a religious foundation.
It is the opposite of what happened in Europe. The modern nation was born at the end of the Mediaeval Age - from the decline of bipolar(ism), papacy/empire, in which, for a long time, had been gathered almost the entire totality of the questions of European politics - and was in contrast with the Christian imperial universalism. In Europe, the lay state grew and developed, thanks to this very antagonism towards Christianity.
The nation for Islam remains the Umma. In this context, Turkey represents the exception which confirms the rule, insofar as it is, in every single respect, a Lay State. But Turkey has its own national roots, totally independent of Islam, also in the language and literary area. Something of the same kind also goes for the Balkan Islam, on which, however, hangs the long experience of communism. But in general, the legitimization of the political and juridical decisions in Islam has had, for centuries, and continues to have, a religious matrix. Not in the sense that it was, or is, the ulema who decides, and neither in the sense of the strict observation of the Shariah. The situation is much more complex. The power of the ulema gradually weakens as the area of government extends. So too, in the same phase of expansion, an enormous gap opens between the laws of the Koran and the concrete juridical practice. However, in this transition phase, the sultan exercises his authority through legitimate decisions, on the basis of interpretations of the sacred laws given by the religious representatives. In this way, a theological-juridical corpus is formed, which constitutes the basis of the subsequent decisions of the “lay” authority – an authority which represents, in concept, a real newness to the Islamic tradition. Nevertheless, it does not become the basis of a process of secularization. Therefore, the emancipation of lay power becomes possible, by a sort of hypostatization of the Christian element. The legitimization of the sultan’s power does not come from the caliph, but rather from his direct descent, who, in the past, had had the authority to exercise that power. In this way, the link between the religious and political dimension is brought out by clear visibility of the two terms:the one gives back to the other. It is this, the critical point of any western policy in the Islamic world. There is not a total identification between the political and the religious, but a polarity which creates an extremely strong magnetic field.

In conclusion, it is a mistake to look at the problem of the religious/political relation in terms of opposition between laicism and clericalism.
In many cases, it is the political power which uses the religious leaders and not, vice versa. But they do it simply in the name of religion, since the central value of this last, is in defence of the Umma. In the case of Iran, for example, we have total domination by the religious cast. While in the case of the Iraq of Saddam, we had the predominance of the political element. In the past, this induced various western analysts to consider the regime of Saddam Hussein more “lay” and, therefore, less dangerous than that of Iran. This was a hyperbolic error. In the first place, account was not taken of the different connotation of the relation between religion and politics respectively, in the Sunnites and in the Shiites. In the second place – and this is the decisive point – the fact was not understood that Saddam, even though, a little less than “pious” (some have made ironic allusions to the fact that he did not know how to kneel in the correct manner), was perfectly justified in the eyes of the faithful, in that he was defender of the interests of the Umma.


A project of integration

In light of what has been said about the peculiarity of the Islamic relation between religion, culture and politics, we should consider the anti-individualistic and vaguely community-oriented tendency that is present in the IC.
The constitution establishes that “the State guarantees the reform of the Iraqi economy in accordance with modern economic principles, so as to ensure full investment of the resources, the diversification of the sources and the encouragement and development of private sectors” (IC. Art. 25). As far as private property is concerned, this is “protected” and owners can benefit from them “within the limits of the law” (IC. Art. 23), while “public property” is “most sacred” and its protection is the “duty of each citizen” (IC. Art. 27).
This evident disparity of treatment between private and public property could be disconcerting. But it is necessary to keep in mind that, here, we are in the presence of a project of national and social integration, which looks, not so much, at the Anglo-American experience, as at the European-Continental one and, in particular, at the two German republics, Weimar and Bonn and the Italian republic, which are characterized by the configuration of state activity as a re-equilibrating social factor.
On the other hand, in the IC, the centrality of the State works as a support to the organizing of the public powers, which reflects the Islamic vision of social life. In
Art. 29, IC, one reads, for example, “the family is the foundation of the society and that the “State guarantees the protection of maternity, of the infants and the aged”.
These rules could make lovers of the liberal orthodoxy turn up their noses. It is obvious that the individual is not left completely free to decide his own destiny. His “environment” is the State. Besides, individualism of the liberal kind is a child of the Christian tradition. It is often said that Islam and Christianity are united by monotheism. It is a simplification. Islam and Christianity are, if anything, divided by monotheism. The Islamic concept of “unity” is static and adheres to an impersonal representation of the divinity. The Christian one is dynamic and is resolved in the doctrine of the trinity, foundation of the western theory of the supremacy of the person and of the fundamental rights.
These two different theological formulations are incompatible, but not necessarily in conflict, in the sense that each one of them can work as a support to respective forms of “tolerance” as well as “intolerance”.
The case of Tunisia is significant. Already, in 1861, in this country, certain liberal constitutional principles were introduced. On the other hand, Islam has always remained the religion of State (Art. 1. of the Constitution of 1959) and the President of the Republic is legitimized on Islamic bases (Art. 38). Nevertheless, it is guaranteed “the liberal exercise of faiths” (Art 5). But also the experience of a country like Morocco should be kept in mind, where the king descends from Mohammed and where, as it has been observed, and it has been in force for two years, “a statute on the citizenry respectful of women, which guarantees a series of rights which, not even the Moroccan feminists expected to see recognized”. (Emma Bonino in “The Shari’a is not always integralist”, interview by V. Nigro, La Reppublica, 21st August, 2005) Many other examples could be made.
Moreover, the most enlightened Islamic reformists have always been convinced of this compatibility. The great Islamic politician and scholar, Khérédine who, after having held many prestigious posts in the European courts, became Grand Vizier of Sultan Abdelhamid in 1878 at Istanbul, was, in fact, convinced that among the principle reasons for the western social and economic development was the constitutional culture. However, he sustained that the path of the Islamic world towards constitutional democracy should be followed within the limits of the Islamic religious identity, seeking to adapt the Shariah to the needs of modernization and respecting the Islamic expectations of social integration.
It is in this way that the following should be interpreted, the fact that the IC establishes the right to work and a “decent” life(IC. Art. 22) and pledges the State to guarantee “the reform of the Iraqi economy in accordance with the modern economic principles, so as to ensure full investment of its (of the State) resources” IC. Art. 25).
We have still to see how the role of the State is securely central, but not to the point of being placed as the source of rights. In this sense; reference to the Islamic law, as a fundamental source.
The expression “the State” occurs, a good 47 times. After having established that the recipients of modest salaries are exempt from paying taxes, (IC. Art. 29), the Constitution assigns to the State, the task of preserving the family, “the foundation of society” and to protect mothers, children and the aged, as well as, to guarantee health and housing assistance (IC. Arts. 30-31). The State, furthermore, not only must guarantee the exercising of the right to education, (IC. Art. 34), but must also protect the handicapped, (IC. Art. 32), and concern itself actively with the safeguarding of the environment and the preservation of the biological diversity, (IC. Art. 33).
Only after having established the tasks of the State, it goes on to list the liberties, with a priority reference to “dignity”, which, as in the Treaty that institutes the European Constitution, it is placed as the foundation of fundamental rights,(IC. Art. 35/A).
We feel that Art. 35 is of particular importance:
“All forms of psychological and physical torture and any inhuman treatment are prohibited. Whatever confession obtained through force, threats or torture shall not be relied on. A victim will have the right to compensation established by the law for material or moral damage suffered. / The State guarantees the protection of the individual from intellectual, religious and political cohesion. / Forced services (unpaid work), bondage, traffic in slaves, slavery, traffic of women and children and sexual traffic are prohibited. / The State promotes institutions and cultural activities in conformity with the Iraqi history and culture. It will have care to keep in proper consideration the cultural tendencies of Iraq”. (IC Art. 35).
It is, nevertheless, to be seen how the role of the State is securely central, but not to the point of being designated as the source of rights. In this sense, the reference to the Islamic law as a fundamental source, has a guarantor significance. (IC. Art. 2). The role of the State is that of intervening for the protection and promotion of rights in themselves valid, with the objective of filling the negative liberties with positive contents. Certain perplexities arise over the fact that the liberties of expression, the press and public meetings are mention only after a premise which refers to “public order” and to “morality”, (Art. 31). Also the “monitoring” of the communications is expressly forbidden (IC. Art. 38) and the rights of criticism and opinion are guaranteed. (IC. Arts. 39-40).
The picture becomes problematic if one connects the above mentioned social norms with those relative to the Islamic identity of Iraq.
Assuming that Islam is the “official religion” of the State and a “fundamental” source of legislation, no law that contradicts the Islamic principles can be promulgated (IC. Art. 2. co. l/A). Only after having established this principle, the promulgation of laws which contradict the principles of the democracy (IC. Art. 2. co.1/B) and of the fundamental liberties (IC. Art. 2. co. 1/C), is prohibited.
The fact to note is that the fundamental rights come after the democracy. We think the sense of this order can be clarified by the subsequent norm, where the following is guaranteed; “the Islamic identity of the majority of the Iraqi population”, together with the liberty of faith for the other religions (IC. Art. 2. co. 2).
Therefore, this combined provision of articles 2 and 34 could result in a threat to the liberty of teaching. By the same token, the possibility of such threats is present in all the constitutions with strong identity characteristics. One thinks, for example, of the United States, where, in some States, ultra-conservative movements are able to use the constitutional regulations to oppose the teaching of scientific theories which they retain are contrary to biblical revelations.


A problematic federalism


In short, one cannot ask an Islamic population to write an “essential” Constitution, regarding, exclusively, individual rights. Also because these kinds of Constitutions have long been considered inadequate also in Europe; above all, in the development phase of a mass society. Furthermore, one cannot expect that the Constitution of an Islamic country would not give a certain weight to the Shariah traditions, which constitutes a very strong identity element for the Moslems, equal to the national ones of the Europeans. It is obvious that we are not facing a liberal constitutional State, but a constitutional Islamic Republic of a social orientation. We feel, therefore, that it is more than a legitimate constitutional experience at a theoretical and practical level, and which, moreover, finds illustrious antecedents in Europe.
This does not mean that the constitutional text of Baghdad does not present some grave problems. These, however, do not regard the Koranic references, but the federal order of the State. The article 13, IC., states: “The Constitution shall be considered as the supreme and highest law in Iraq. It shall be obligatory throughout the country, without exception. No law which contradicts the Constitution will be approved; every passage in the regional Constitutions and any other passage which contradicts this Constitution will be considered null and void”.
Looking closely, we can see it is an anomaly from the western point of view. The constitutions are not written, in the West, to limit the power of the single local governments, but to protect these last with regard to the Federal State.
The 10th amendment of the American Constitution states, for example: “The powers which the Constitution does not attribute to the United States nor prohibits to the States, are reserved to the single States or to the people”. And it is this, the model of almost all the western forms of federalism or decentralization, including that recently proposed in Italy.
Vice versa, in the Iraqi Constitution, one starts from the fact that there are regional governments on which a Constitution must be imposed. One has the impression, therefore, that the ‘unified will’ does not proceed from the bottom towards the top, which is what normally occurs in federal procedures, but the other way around.
In this regard, we could observe that also in the European constitutional process, something analogous is happening, considering the progressive limitation of the national powers, in favour of those of the Union. On the other hand, this process in Europe has been happening over a long period of time. The possibility to work over a long period has allowed elasticity in the constituent process and also to interpret, in an historical framework, defeats like the French and Dutch failures. From this point of view, therefore, the comparison with Europe does not hold.
In the IC, the will for unification is questioned for the very reason of the rules which should rationalize the relation between centre and periphery.
We have four levels of government: central (Baghdad), regional, provincial and local. Besides Kurdistan, many other autonomous regions could be formed, through agreements among the various governors, (Art. 114, IC).
Concerning this, the most familiar references for western law are the Spanish Constitution of 1978 and the fundamental Norm of the German Federal Republic.
In the Spanish Constitution of the post-Franco Regime, the federation of “Comunidades Autónomas” are absolutely forbidden, and all the various forms of co-operation between the above named communities are subordinate to the authorization of the “Cortes Generales”, (Spanish Constitution of 1978, Art. 145). Vice versa, in the IC, it is established that one or more governors will have the right to organize referendum for the unification, (IC. Art. 115). So that, while the Spanish Constituent appears considerably worried over the possibility that the territorial communities join together to form many confederations, which could question the unity of the State, vice versa, the IC encourages the formation of large regional aggregations. This is not very surprising in consideration of the fact that the centrifugal stimuli in Spain are, and were controllable, everything considered. While Iraq seems to be continually, on the edge ofdisintegrtion.
In this sense, the IC is near the German one, where it is established that “the territory of the Federation can be redefined with the objective of consenting to the Länder the efficient performance of the tasks assigned to them, in function of their dimension and capacity” (Fundamental Norm of the German Federal Republic, Art. 29. co.1). As we can see, the German Constitution not only does not prohibit, but on the contrary, encourages the formation of new regional aggregations.
On the other hand, in Germany, not only are there no separatist tendencies, but such is the fragmentation that the federal government would be very happy if some of the little states would aggregate among themselves, so as to have a more homogeneous picture with which to work. Vice versa, in Iraq, it is to be expected that the governors will start processes of aggregation very soon.
And we can ask ourselves, at this point, what the most probable scenario will be.
We could think of a solution similar to the one adopted by Belgium, where there is now a Federation between three state entities: the capital, Brussels, Fiandre and Vallonia. Iraq could become a Federation of three states, with the Kurds to the North, Shiite Islam to the South and Sunnite Islam in the centre. However, the Belgium example, although reassuring, does not seem to be, in this instance, very valid. In fact, in Belgium, neither of the two components in question aspire to have control over the entire national territory, while, instead, in Iraq, there has been a long Sunnite domination, which has caused only conflict for the Shiites and Kurds.
To understand the possible risks of the Iraqi situation, it is necessary to refer to more traumatic experiences. For some aspects, one should remember the dissolution of the former Yugoslavia, where the ethnic conflicts fed the civil war. However, it was amply demonstrated that those ethnic conflicts were, for the most part, deliberate manipulated by the élite post-communist politics, in search of a new political role: in Bosnia-Hercegovina, for example, before the war broke out in 1992, the rate of ethnic mixing was very high.
It is, perhaps, much more useful to refer to Nigeria, a country which, until the year of independence in 1960, had experienced a situation of extreme conflict between the Northern Moslems and the westernized South. This perpetual conflict has led to appalling tragedies, right up to our times.
On the other hand, the Iraqi situation, compared to the Nigerian one, is receiving an extremely wide and intensive international attention. The risk of the national disintegration, due to the formations of new regional entities in conflict among themselves, can be avoided. This can be achieved through politics which make wise use of the competence of the central government in matters of the re-balancing of the resources and of social integration.
Like all federal constitutions, the IC establishes a list of matters which are the exclusive responsibility of the central government, one being of exclusive responsibility of the states and one of concurrent matters.
The central government has exclusive responsibility for: foreign policy and diplomatic representation, commercial policy, beyond the limits of the federation, foreign economy relations, and tax policies (IC. Art. 107).While the concurrent matters are: customs policy, public health and public education. (IC. Art. 110).
It is established that the federal government and local governments must manage in common accord, the petroleum and the gas extracted from the ‘current fields’ and to see that all parts of the country, especially those less fortunate, participate in the benefits of the extractions. (IC. Art. 109, co.1).
Incidentally, the reference to ‘current fields’ leads us to foresee the possibility that future discovered fields will be managed autonomously by local governments. We would mention, however, that the management of the petroleum resources, these last underlined many times for their national character, will be finalized expressly to benefit the social development of the nation.
The picture, at a federal organizational level, presents a certain instability. In fact, it is provided that all the responsibilities expressly reserved for the central government, will be attributed to the regions or to the governorships not organized in region (IC. Art. 111). Now, one asks what could happen in a crucial matter, which is not mentioned either among the exclusive responsibilities of the central government, or among those of the local governments, like the aviation, for example. A foreign airline that wanted permission to fly over Iraq would find itself in a rather embarrassing situation. It is obvious that questions of this sort will find practical solutions of an administrative or ordinary legislative kind. But, in any case, the lacuna reveals the complexity of the federal question in Iraq.


Union of Constitutionality:
A gap to fill


Another knot to be untied is that of the union of constitutionality, which is a fundamental element of the modern Rule of Law, but it is absent in the IC. When the role of the Constitutional Court is discussed in the area of the work constituent, the problem has been posed as to the legitimization of the decisions of the CC on a
Shariah basis. But a Constitutional Court cannot be tied to a religious truth. It was proposed, therefore, to render it responsible to Parliament. But it would have meant committing a profanity.
In fact, in the constitutional culture, the mechanism of weights and counter-weights is more important than the ground of legitimacy of each one of the “weights”; in the sense that the fundamental guarantee is given to the citizen, in the first place, by the fact that each power is limited by another power and no power has the possibility of “planning” its ‘will’ on a long or medium term, insofar as it must continually answer for the effects which its actions will have on the other powers. Only in a second moment, the guarantee comes from the fact that the legislative power – or also some aspects of the executive or judicial – has its last roots in the will of the people.
In short, the Constitutional Court is a counter-weight of Parliament and, therefore, cannot be dependent on it. Therefore, the Constitutional Court has not been included in the Iraqi Constitution and this represents a grave handicap for a rising democracy.



A miracle, considering the times

The fact is that the Iraqi constituents have had very little in which to work.
Other countries, analogous in many ways, like Italy and Germany, after the 2nd World War, Spain, after the Franco Regime, or the Eastern European countries, after the fall of communism, had all the time necessary to construct the constitutional transition, and, in addition, in a relatively calm climate, if one considers what is happening in Iraq today.
The lack of time is so much more serious if one considers that Iraq is without the experience of a real “constitutional landscape”. In the aforementioned transitions, it simply meant returning to the previous constitutional experiences, trying to lead back the respective anti-democratic regimes to a climate of substantial solidarity with the nearby countries and populations. Germany and Italy, for example, had behind them, not only the Weimar Republic and the reformism of the Giolitti epoch, respectively, but also the constitutional traditions which had been developed before these respective unification processes, starting from the first half of the 19th century, and in some cases, from the end of the 18th century. The executive classes of the democratic parties, in their turn, had at their disposal, jurist experts and technicians to evaluate, not only the technical efficacy of the constitution, but its political significance and its medium and long term consequences. This saw that in the constitutional negotiation process, the intertwining between political and technical questions contributed to create a solid, balanced and essentially legitimate text, or rather, accepted by the principle political components and national cultures.
Nothing of this kind has been possible in Iraq. Everything has been done very quickly and under stress. This is why the Constitution can be defined as a miracle. On the understanding, of course, that it should be considered as a starting point in the transition to democracy, and not as a finishing point or an unchanging acquired result.