JURIST Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that recent decisions by the Federal Supreme Court of Iraq demonstrate the Court’s deference to the legislature over legal questions that implicate controversial areas of religious doctrine…

Recently, the Federal Supreme Court of Iraq issued two decisions pertaining to the role of Islam in the Iraqi Constitution [PDF] that deserve some attention. Both of these concern the extent to which the Court should play a role in ensuring that legislation is suitably Islamic, and both demonstrate a high level of deference to legislative authorities in this regard. The result seems to be a continuing determination on the part of the Iraqi Federal Supreme Court to construct the Iraqi Constitution in a manner that imposes precious few constraints on legislative and executive authorities to ensure that they conform with Islamic doctrine in performing their constitutional functions.

By way of background, Article 2 of the Iraqi Constitution prohibits the enactment of any law that is contrary to Islam’s “settled rulings.” The Federal Supreme Court has for years been reluctant to deal with this provision, avoiding it through the usual techniques available to any judiciary to achieve this — strict use of rules of standing, narrow interpretations of its own jurisdiction, and failing to raise constitutional objections as to pending disputes sua sponte, among others. In the one case until recently where the Court did rule on an Article 2 question, it was one that dealt with contracts. This was easy for the Court, in that it is an area of law in which, in almost every Muslim jurisdiction, the source of the law is European transplant and the influence of the historic rules of the Muslim jurists is at the vanishing point. To declare the jurists, including the important Shi’i jurists of Najaf in Iraq, to be wrong in their interpretation of Islamic law as it concerns contracts, which is implicitly what the Court did in Decision 60 of 2010, does not do much violence to the broad understandings of the role of Islam in the modern Muslim state. It is implicitly and broadly accepted by all groups, Islamist and secular, that commercial law should be generally immune from review on the grounds of compliance with Islam.

Yet these recent cases develop the Court’s jurisprudence further, because they involve patently “Islamic” legislation — specifically, rules relating to the administration of the Islamic charitable trusts known as the waqfs and rules relating to the law of the family. Here, it would be politically quite dangerous for the Court to depart from the accepted wisdom of the jurists and develop its own interpretations of how these areas of law are supposed to work based on sacred Islamic texts. This is particularly because in each of the cases, a violation of specifically Shi’i rules was alleged, and the Shi’i jurists of Najaf are deeply invested in questions relating to the administration of waqfs and the rules of family law in a manner that they are not in the state’s law of contract.

In the first case, a Shi’i woman from Kerbala, Fatin Muhammad Ibrahim, sought to execute what within Shi’i rules is described as “a divorce by agency.” Normally under Muslim juristic rules, Sunni and Shi’i, the only party with the power to divorce unilaterally is the husband, but a woman may negotiate to have that right given to her in the marriage contract. Sunni schools of thought usually refer to this as a right to “divorce by delegation” while the Shi’a routinely refer to such a divorce right as having been given through “agency,” or wakala. The original 1959 Personal Status Code [PDF] in Article 34 recognized both methods as valid. However, a sloppily drafted 1980 amendment, intended to ban the ability of a husband to give a third party the power of agency to issue a divorce, ended up appearing to ban all divorces by agency, though not by delegation, creating sectarian tension inadvertently and unnecessarily. Hence Article 34(1) indicates that a divorce may be issued by a wife through agency or delegation, and Article 34(2) then bans the use of agency in divorce. Fatin, having issued her divorce through agency in accordance with Shi’i rules, demanded that such rules be recognized because Article 41 of the Iraq Constitution gives each Iraqi the freedom to live by their own rules of religion and sect as it concerns personal law, including the law of the family.

The Court may have been tempted to side with Fatin, who after all was only seeking to execute the same right of divorce that her husband had. This is particularly because the right is available to women under Iraqi law, though they must claim it using Sunni terminology, an obvious affront to Shi’i women. At the same time, there is no doubt that the Court hardly wanted to put itself into the position of arbiter over Islamic doctrine, even if the Constitution appeared to entitle it to do so. It saw no need to engage in competition with Najaf on the matter and may have been able to foresee that as soon as one litigant was successful, hundreds more might come forward with other claims relating to Islam and the family law (the vast majority perhaps seeking changes inimical to women’s interests) that it did not wish to address.

As a result, the Court decided effectively to immunize the Personal Status Code from judicial review, at least as it concerned nonconformity with Islamic doctrine. The claims of the sort raised by Fatin, the Court indicated, required “detailed” and “specialized” review, with a view to enacting legislation written for all Iraqis, with all their diversity in religion and sect, in a manner that recognized that which religious authorities agreed upon, and reconciled those areas in which there was disagreement. Until such legislation was passed, however, the law would stand as it existed and the offending provision would remain in it. The Court did not suggest the provision was acceptable under Islamic law — to the contrary it very much hinted otherwise, but indicated it was not the institution to effect the necessary changes.

There is some constitutional basis for this, in that Article 41 of the Constitution, which grants to all Iraqis the freedom to live by their own rules of personal status according to their own “religions, sects, beliefs and choices” also makes clear that this freedom is to be “organized by law.” In some ways, the Court’s reading of Article 41 seems inevitable, in that surely no legal system could survive where any one person could craft rules based on highly individualized “beliefs” and “choices” and expect those choices to be treated as law. Yet at the same time, Article 2 of the Constitution (which Fatin does not appear to have raised) would seem to enable the Court to strike down the legislation if it did indeed decide, as it could have, that the denial of a wife the right to divorce by agency violated Islam’s “settled rulings.” That it did not do so is significant. It renders the Personal Status Code of Iraq, and the highly controversial Article 41, into subjects that only the legislature can address. That will transform the question of how Islamic to make the code from a constitutional question into a highly politicized one whose outcome will be determined by elected legislators, not judges or jurists.

The other case, the opinion in which was delivered earlier this year, takes matters even further. In that case, Decision 61 of 2011, a litigant sought to challenge a law that permitted the state administrative agency responsible for the administration of the waqfs, set up by private parties, to appropriate 10 percent of the value of the waqf to itself as an administrative fee. According to the litigant, this was specifically a violation of Article 2 of the Constitution, because Shi’i rules did not permit the assessment of any administrative fee against a waqf. The Court’s ruling was spectacularly similar to that reached in the case of Fatin Muhammad Ibrahim described above. It refused to alter or amend the law respecting waqfs but invited the legislature to do so after its “specialized” review, in a manner that would ensure conformity with Islamic dictate. While the administration of waqfs is also a matter to be “organized by law” under Article 43 of the Constitution, the Court does not rely on that but instead suggests that even Article 2 review for conformity with Islam is not available as for legislation that relies heavily on Islamic rules. According to the Court, the proper Islamic amendments to such legislation require detailed and specialized review that only a legislature can undertake.

Thus, in sum, where legislation is largely Islamic in its source material, it escapes judicial review for compliance with Islam because a legislature is better able to address it. Where legislation largely draws on transplanted sources, there is tacit agreement that Islamic doctrine is not relevant, and the Court will find an interpretation that upholds the legislation that exists. This leaves precious little by way of constraint in the Constitution on legislation so as to ensure its broad conformity with Islamic rules.

Haider Ala Hamoudi is an Assistant Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament, responsible for developing amendments to the Iraqi Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He is currently preparing a book on the drafting and subsequent evolution of the Iraqi Constitution to be published with the University of Chicago Press. He maintains a blog on Islamic Law

Suggested citation: Haider Ala Hamoudi, Judicial Review of Islamic Law Under Iraq’s Constitution, JURIST – Forum, Apr. 26, 2012, http://jurist.org/forum/2012/04/haider-hamoudi-iraq-islam.php.