There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arab states which have recently seen constitutions approved through popular referendum, Islam is described as state religion, as source of legislation and as constraint upon law as well. Nobody reasonably aware of the region imagines that Libya and Syria (were the latter to develop into a democratic state) would reach a different conclusion respecting the role of Islam in the public order. While the details may well differ from one state to another, the principle of “constitutional theocracy” holds fast throughout much of the Arab world. The effect of this on religious minorities that are not Muslim is the subject of this essay, with particular reference to the one Arab state with which I am most familiar, that of Iraq.
In assessing how rising constitutional theocracies like Iraq happen to balance the priorities they afford Islam in foundational text with religious freedom, a value also invariably enshrined in the constitutions of emerging democracies in the Middle East, it is important to note that the going opinion is very much in favor of some form of protection for and tolerance of non-Muslim minorities. It is also important to note that in assessing any conflicts with shari’a, there is a great deal of nuance, indeed near incoherence, in understanding not only the precise impact which that body of rules is supposed to have as a legal matter in the modern constitutional theocratic state, but also what the rules of the shari’a are and how much reinterpretation of the historic content of the shari’a will be tolerated.
Where traditional rules of the shari’a have been all but abandoned by modern nation-states, particularly inasmuch as political equality as between Muslim and non-Muslim is concerned, it has been easier for the judiciary to advance notions of religious freedom and, perhaps more saliently, equality of citizens irrespective of religion. Indeed, Iraqi courts and legislators not only permit non-Muslim participation in legal and political affairs, but advance programs to ensure adequate non-Muslim representation in the legislature.
However, in contradistinction to political freedoms afforded to non-Muslim minorities, courts are more cautious when it comes to recognizing vital elements of religious freedom and religious equality if to do so would frontally challenge traditional understandings of shari’a where such understandings remain relevant in modernity. Hence, Iraqi courts outside of the autonomous region of Kurdistan have been remarkably unsympathetic to individuals who wish to convert from Islam to another religion, even when they were not born Muslim and even when their original conversion to Islam was involuntarily forced upon them by one of their parents, often over the objection of the other parent.
This paper will explore this unusual dichotomy, and further explore how courts in the Kurdistan region have managed to come to different results, in a manner altogether more promising for supporters of religious freedom.