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Islam, democracy, and human rights in Iraq
Posted: Wednesday, June 11, 2003

By Kamran Memon,

Two powerful forces are at work in Iraq. How they are handled will determine whether they blend harmoniously or collide in conflict.

One powerful force is many Iraqis' desire for democracy following decades of dictatorship. There appears to be a consensus among Iraqi and American leaders that Iraq should become a democracy. But it's not clear that both sides define democracy the same way. While the Iraqis, emerging from dictatorial rule, may understand democracy to mean primarily the ability to select leaders who would be accountable to the people, Americans undoubtedly understand democracy also to mean protection of civil rights (rights of women, ethnic minorities, and religious minorities).

The second powerful force is many Iraqis' desire for an Islamic state following decades of secular rule when religion was stifled. The vast majority of Iraqis are Muslim, and thousands of Shias and Sunnis have been in the streets calling for the establishment of a religious state. They view the U.S.-led war as a war of liberation from Saddam, not liberation from Islam. Religious leaders are the only established, indigenous authorities in Iraq today; in fact, U.S. invasion/occupation troops have been relying on those religious leaders to help re-establish law, order, and public services (trash collection, electricity, public transportation, etc.).

The call for an Islamic state concerns many non-Muslims who recall the Iranian hostage crisis, the Taliban, the treatment of women in various Muslim countries, and September 11, 2001. If democratic elections were held today, would Iraq elect a theocratic government that would disregard human rights?

The call for an Islamic state also raises many questions among Muslims, many of whom believe that no genuine Islamic state (a state governed by Qur'anic principles) exists in the world today; what would an Islamic state in Iraq look like? And how would it balance the needs of such a diverse Muslim community (predominantly Shia, but with a significant Sunni population) in Iraq?

Faced with a potential conflict, American and Iraqi leaders must immediately address the issue of how democracy and Islam will mix in Iraq in order to assure a smooth transition to a constitutional government that acknowledges Iraq's Islamic heritage and simultaneously protects democracy and human rights.

Clearly, there must be some accommodation. Neither side has a completely free hand. The democrats cannot simply dismiss calls for an Islamic state because a democracy implies that the will of the Iraqi people must be respected, and because America has promised self-rule. The supporters of an Islamic state cannot simply dismiss the concerns of the democrats because the U.S. will remain in charge in Iraq for the foreseeable future, and it will seek to exercise influence on the development of the future constitution.

Theoretically speaking, proponents of an Islamic state should not object to a democracy. According to many scholars of Islamic law, the ruler is viewed as an agent of the people, and a ruler cannot be imposed upon people. Rulers can only legitimately rule over people who accept them freely. People have the right to criticize the government and replace the government. In addition, the ruler must rule through consultation with the people. God, who refers to consultation (shura) in the same Qur'anic verse as prayer and charity (42:38), ordered the Prophet to consult with his people on significant matters, and the Prophet did so through open meetings at the mosque and through meetings with representatives of the people. Scholars have said that, today, the parallel would be for a ruler to hold public referendums or to consult with the people's elected representatives. The wishes of the people are binding upon the ruler, according to most scholars of Islamic law.

Turning to the concerns of democrats regarding an Islamic state, how can minority and civil rights be protected?

One option might be a pseudo-democracy like Egypt, with a kinder, gentler version of Saddam maintaining order and protecting minority rights. But this would probably be unacceptable to promoters of genuine democracy and to advocates of a religious state.

Alternatively, democrats might suggest the Turkish model of a Muslim-majority democracy, but that is unlikely to be accepted by proponents of an Islamic state. After all, Turkey restricts free exercise of the Islamic religion and free speech relating to Islam, and a few years ago, the Turkish military overthrew a democratically-elected Turkish government that was seen as "too Islamic."

Another model might be states such as Indonesia and Bangladesh, which allow secular and Islamic parties to participate in the political system. But democrats would remain concerned (as they were in Algeria where they allowed the military to prevent a democratically-elected government from taking power) about what might happen once an Islamic party won elections in Iraq.

Putting aside the question of upon what form of government is finally decided, how would an Islamic government in Iraq, applying Islamic law, deal with minority rights, women's rights, and civil rights?

Having represented many American Muslim women and men seeking redress for religious and national origin discrimination by the government and private entities (such as employers, airlines, stores, etc.) in the U.S., and having benefited personally from such civil rights protections, I can certainly appreciate the desire of women and non-Muslims to be similarly protected under Islamic rule. But Iraqi Muslims obviously don't have any experience with our Bill of Rights. So to what tradition can they turn for guidance on civil rights issues? Islamic civil rights precedents may provide an answer.

Clearly, people around the world are deeply divided about Islamic history. Was it tolerant or intolerant? Was it peaceful or violent? Was it just or unjust? As is often the case, the truth lies somewhere in the middle. Muslims, like all other religious communities, have had their good days and their bad days. The negatives have received much airtime since 9/11, in an attempt to understand the motivations of the hijackers and their supporters.

While many Muslims and non-Muslims may view Islamic law as a rigid, backwards, hostile, obsolete code with no present day relevance, it is, in fact, a work in progress that offers some hope for the future.

Islamic law has been a subject of great debate among Muslim scholars throughout history. One point of historical agreement has been that the foundations of Islamic law are the Qur'an (God's final revelation to humanity) and the Sunnah (the Prophet's sayings and actions). God commanded certain things and prohibited others, and Muslims agree that those rules must be respected. However, there has always been debate about how to interpret many of those commands, such as the Qur'an's broad guidelines regarding government (i.e. govern through consultation; promote good and forbid evil; etc.). Islamic scholars who have studied the Qur'an and the life of the Prophet have agreed that the ultimate purpose of Islamic law is to protect certain fundamental interests: life, faith, thought, property, family, and dignity. But they haven't always agreed on how to define or accomplish those objectives.

As the pendulum has swung back and forth between moderate and conservative scholars, there have been times in Islamic history when women have held positions of great influence and authority, and when their social rights and family rights and property rights have been protected. There have also been times when women have been oppressed.

As the pendulum has swung back and forth between moderate and conservative scholars, there have been times in Islamic history when the Islamic state peacefully co-existed with non-Muslim states in Africa and China that were tolerant towards Muslims. There have also been times of bitter international conflict.

As the pendulum has swung back and forth between moderate and conservative scholars, there have been times in Islamic history when the Islamic state granted religious freedom to religious minorities, including Christians, Jews, Hindus, and Buddhists; to varying degrees, they were permitted to practice their faith, keep houses of worship, and administer their own religious law within the Islamic state. There have also been times of religious intolerance.

As the pendulum has swung back and forth between moderate and conservative scholars, there have been times in Islamic history when the Islamic state was concerned about the needs of the poor, providing charity and refusing to punish thieves who stole out of hunger, not greed. There have also been times when the poor were disenfranchised.

Islamic civil rights have certainly had their ups and their downs, depending on the relative strength of moderates and conservatives. The controlling military power must be aware of the negatives of Islamic history, so they can avoid the mistakes of the past. But the occupying forces must be equally aware of the positives, so that they can build on them.

Is there any reason to assume that Iraqi Muslims can be tolerant today? One sign of hope is that churches were largely spared during the looting.

As an American Muslim civil rights lawyer examining Islamic civil rights law, my objective here is not to answer all the questions. Rather, the objective is to point out that there are many open questions in Islamic civil rights law. That is what is so intriguing about Iraq. The Iraqi people have an opportunity to develop Islamic law in any direction that the Iraqi people choose. Handled properly, this could be the beginning of a renaissance for Islamic civil rights law, a renaissance that could touch the entire Muslim world.

But can that happen with the U.S. government involved?

Many Muslims are suspicious of the U.S. government because of its long-standing support of Muslim dictatorships that rule over Muslims with an iron fist (including Saddam's dictatorship for several years), because of its pro-Israel/anti-Palestinian bias, and because of its thirst for Arab oil. Muslims around the world wonder whether the U.S. government has any genuine concern about what is best for the Iraqi people. One way to show good faith and to alleviate some of these suspicions would be for American and Iraqi leaders to tap into the expertise of North American Muslim scholars and lawyers who have studied Islamic civil rights issues.

But the clock is ticking. Iraqis are understandably impatient. They want to see results. The sooner that American and Iraqi leaders begin moving towards a deeper understanding of the potential for Islamic civil rights, the greater the chance that Iraq can have a peaceful future with both Islam and democracy. The alternative is more conflict, which is in no one's best interests.

[Kamran Memon is a civil rights attorney and a founder of the Muslim Bar Association of Chicago. He is a member of the National Employment Lawyers Association and the National Association of Muslim Lawyers. He graduated from the University of Chicago Law School in 1997.]

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