Point-counterpoint: Iraq’s constitutional referendum

Pauli, Ben

The recent ratification of a constitution in Iraq is being touted by many in the Bush administration as a major victory for freedom and democracy in the Middle East. Unfortunately, the constitution is limited in the liberties that it provides to the people. In the case of Iraqi women, for example, the constitution states quite clearly that any law that violates Islamic law (or “Shariah”) shall be deemed unconstitutional. Such a concession to fundamentalist Islamic beliefs as are seen in much of Iraq has the possibility of having detrimental effects on its female citizens. Under such Islamic law women are not allowed to unilaterally divorce their spouses. Only with the consent of the husband can this be done. Furthermore, Shariah law would change custody rights, ensuring custody to the father and, in the case of a deceased father, the father’s family. Mothers would have no right to custody over their own children.
It is important to note that such a constitution would constitute a major step backwards for Iraqi women. The old Iraqi constitution, written in 1959, was one of the most progressive with respect to women’s rights in the Middle East, and had relative gender equity in regards to marriage, divorce, and child custody laws.
Another group of Iraqis adamantly opposed to the new constitution are the Sunnis. The Sunnis are opposed to the constitution for a number of reasons, although their opposition seems to center around the distribution of oil revenues in Iraq. For the Iraqi constitution to be rejected, it must have been voted down by a two-thirds majority in three of Iraq’s 18 provinces. This was accomplished in two Sunni-dominated provinces, with a third coming close to reaching the two-thirds majority needed.
Despite the majority of Iraqis that favor the new constitution, there is clearly a minority faction that opposes it. Unfortunately, instead of deliberation and compromise with this group to create a constitution that all favor, the Kurds and the Shiites decided to steamroll the minority. Such action is the very antithesis of what a constitution is supposed to accomplish. As James Madison articulated in “The Federalist Papers,” in a society of liberty it is necessary to protect the rights of the minority. Unfortunately, in Iraq all that the minority Sunnis have seen is that even with the right to vote they are still at the mercy of the majority.