Centre for Public, International and Comparative Law SEMINAR ON IRAQ’S INTERIM CONSTITUTUTION 2...
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Transcript of Centre for Public, International and Comparative Law SEMINAR ON IRAQ’S INTERIM CONSTITUTUTION 2...
Centre for Public, International and Comparative Law
SEMINAR ON IRAQ’S INTERIM CONSTITUTUTION
2 April 2004T C Beirne School of LawUniversity of Queensland
Dr Ann Black
The Ethnic Factor
Multi-ethnic society esp in the North– Arabs 75%– Kurds 18 %– Remaining 7% comprise:
• Assyrians - (Ashuri/Authori) *• Turcomen• Yazidi • Shabak• Armenians*
Iraqi Arabs
• Arab Conquest 634 AD – Khalid ibn al Walid
• Arabic language
• Muslim
• Tribal groups• Conversion did not negate tribal values &customs
Iraqi Kurds
• Descendants of the Medes –Zoroastrians
• Conversion to Islam in 7th Century• 22 million people in 6 countries - 10 million in
Turkey, 5.5 million in Iran, 3.5 million in Iraq and pockets of population in Syria, Azerbaijan and Armenia
• Homeland
• Speak Farsi variant.
• Tribal groups
Assyrians (Authori in Iraq)
Indigenous people of Iraq – 300,000 +
Speak Aramaic
Christian –Ancient Church of the East – also Chaldeans.
Promised Independence after WW1
Background on Islamic law & religion
• Adherence to Islam is inseparable from adherence to Islamic law.
• Syariah – Quran & Sunnah - was prescribed by Allah.
• Injunctions cover wide range– Embraces the spiritual and secular
• Fiqh – deducing, interpreting and developing the Syariah is the role of the jurist, not the judge & not the State..
• Secular law has a recognised role.
Divisions - Fiqh Madhhabs (schools of law)
• Recognise one Quran and sunnah
• Differences on the fiqh/ jurisprudence: – Shia (Jafari)*– Sunni
• Hanafi*
• Maliki
• Shafii*
• Hanbali
Why the divisions?
After the death of the Prophet in 632AD there were two issues:1.The practical implementation of the Islam
2.The succession and leadership of the Muslim community
Decision in favour of consensus over lineage
Shia
• Those supporting lineage - Shi’ate Ali • Martyrdom of Ali and defeat of Hussein• Belief that the prophet’s successor is a divinely
guided and infallible religious teacher – Imam.• Division as to the Imam after Ali. • Legitimacy of leaders is by descent from the
Prophet & through Ali.• Hierarchy of interpreters in the ulama of the Quran
– Mujtahid (legal interpreters) - Ayatollah (sign of God)– Ayatollah al-uzma (greatest sign of God)
Sunni
• People of unity and tradition
• The caliphs are the Prophet’s political
successors
• The religious successors are ulama
• Political leaders should submit and enforce the rulings on religion and law of ulama
• Sunni Islam was not monolithic
Legal Pluralism
Except Saudi Arabia & Iran, most Muslim countries have hybrid legal systems – European – derived legal codes law and Islamic
law– Syariah Courts typically administer family and
personal law– Syariah principles may be constitutionally
recognised
The Religious Factor
• Muslim – 95%– Shia – 60%
• Majority Arabs
• Small numbers of Faili Kurds.
– Sunni – 35%• Arab Sunni 12-15%
– Hanafi
• Kurdish Sunni 18-20%– Sufi orders, Shafi’i
– Christians, Yazidis and small number of Jews –5%
Political factors
• Exiles versus locals• Sunni domination
– Sunni Ottoman Empire maintained Iraq as a Sunni bulwark against Persian Shia
– Baathist Party, although secular, used Sunni Islam as part of its identity
• Harshly persecuted other Islamic movements – Wahhabism• Controlled Shia practices • Drew on Arab nationalism• By 1990 Shia included on Revolutionary Command Council
– Division within Shia
Shia in Iraq
Denied political power Shia retreated from political life (unless Baathists) + economic power
Religious leadership– Shia Shrine cities – Najaf & Karbala– Different perspectives – different visions for Iraq
• Ayatollah Ali as-Sistani• Ayatollah Mohammed Sayeed al-Hakim
– Assassinations in 2003– Ayatollah Abdul Majid Al-Kohei– Ayatollah Mohammed Baqir al-Hakim
– Attitude to Iran (Persian)
Kurds in Iraq
• Kurds make up majority in 3 northern provinces
• Aspirations extend further south to Kirkuk
• Want a high degree of self-rule
• Four main political groups – varied religious affiliation
• Future for Pesh mergas fighters
The tribes
• Tribal loyalties are not based on religion
• Tribal sheiks - often descendants of tribes that came across from Arabia - have been centers of power in Iraq.
• 150 tribes
• Sidelined from the process