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However, the same article says that Islam "is a fundamental source of legislation." But which version of Islam will be treated as a source, and who gets to say here what Islam is and what it requires? Will it be unelected Shiite or Sunni clerics?

Concern over this clause is tempered by the description of Islam as a, not the, source of legislation, which means that there will be other sources that could counterbalance an undefined Islam. Article 5, for example, says, "The people are the source of authority." But Islam is not only a source but a fundamental one, so its powers could be strong.

Similar concerns arise with Article 2's further requirement that "no law may be enacted that contradicts the established provisions of Islam." Here it is important to note that there may be a difference between a law that contradicts Islam per se and one that contradicts its "established provisions." The implication is that such provisions would require virtual unanimity; this may be a check on some excesses.

A more important check is that Article 2 goes on immediately to add, "No law may be enacted that contradicts the principles of democracy" and "No law may be enacted that contradicts the rights and basic freedoms stipulated in this constitution." This combined theme that nothing should contradict Islam or democracy or guarantees of rights and freedoms reiterates the balancing pattern of Iraq's Transitional Administrative Law (TAL), the interim constitution passed under American occupation. While the current draft is weaker than the TAL, it could provide similar protections.

More worrying is yet another provision in Article 2: "This constitution shall guarantee the Islamic identity of the majority of the Iraqi people and shall guarantee the full religious rights of all individuals in the freedom of belief and religious practice to the followers of the Christian, Yazidis, and Mandi Sabean religions." This has three problems. First, it excludes some religious groups, such as Baha'is and Jews. Second, it is not clear what "freedom of belief and religious practice" actually protects. It might mean only freedom to hold your beliefs and to have private worship services—a far cry from full religious freedom. Every religion calls for far more than beliefs and liturgy, including freely living out its beliefs in the society at large.

The meaning of the unusual and worrying provision guaranteeing "the Islamic identity of the majority of the Iraqi people" is not at all clear. It is a vague constitutional mandate of potentially unlimited scope.

Another concern is Article 39, dealing with personal status—marriage, custody, alimony, and inheritance: "Iraqis are free in the adherence to their personal status according to their own religion, sect, belief, and choice, and that will be organized by law." Most discussion of this has focused on its potential to undercut women's rights, but its effects can be far wider: People could be forced into a legal status dictated by a religious group whether they wanted to or not, and their individual religious freedom could be undercut, especially since many interpretations of Shari'ah give one set of rights for Muslim men, another for Muslim women, and quite another for non-Muslims. These provisions can further reinforce the second-class status of Iraq's already beleaguered Christian community, now roughly 3 percent of the population and rapidly shrinking.

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September (Web-only) 2005, Vol. 49