Sistani the Big Winner; Kurds Furious

The United Nations Security Council on Tuesday unanimously approved a new resolution on Iraq granting legitimacy to the caretaker government of Iyad Allawi. The resolution gives the new Iraqi government substantially more sovereignty than had been envisaged by the U.S. in the initial draft, and the Bush administration essentially compromised in order to have an achievement for the election season.

The resolution will make it easier for the Allawi government to gain the Iraq seat at the UN and at organizations like the Arab League. It also constrains the U.S. from undertaking major military actions (think: Fallujah) without extensive consultation with the Iraqi government, and it establishes a joint committee of U.S. and Iraqi representatives to carry out those discussions. This military "partnership" was substituted successfully for a stricter French proposal that the Iraqi government have a veto over U.S. military movements in Iraq. Still, the language went far beyond what the U.S. had wanted.

That the U.S. and the UK had to give away so much to get the resolution shows how weak they are in Iraq. The problem is that they have created a failed state in Iraq, and this new piece of paper really changes nothing on the ground (see the next news item, below).

The resolution did not mention or endorse the Transitional Administrative Law (TAL) or interim constitution adopted last February by the Interim Governing Council and based on the notes of Paul Bremer. The Shi'ite leader Grand Ayatollah Ali Sistani had written Kofi Annan forbidding the UN from endorsing the TAL, on the grounds that it was illegitimate and contained provisions harmful to majority rule.

The Kurds on the other hand were absolutely furious that the UN did not mention the TAL, which they see as their safeguard against a tyranny of the Arab majority. It stipulates that the status quo will obtain in Kurdistan until an elected parliament crafts a permanent constitution next year this time, and that the three Kurdish provinces will have a veto over that new constitution if they do not like it. The Kurdish leaders threatened in a letter to President Bush on Sunday to boycott the elections this coming winter if there is any move to curtail their sovereignty or to rescind or amend the interim constitution. Ash-Sharq al-Awsat's Shirzad Abdul Rahman reports today that the Kurdish street is anxious about the future, feeling that it has been left up in the air.

This entire process is a big win for Sistani. It is now often forgotten that the Bush administration had had no intention of involving the UN in this way in Iraq. The original plan was to have stage-managed council-based elections in May, producing a new government to which sovereignty would be handed over by the U.S. directly. It was Sistani who derailed those plans as undemocratic. When the involvement of the UN was first broached last winter by Interim Governing Council members, the Americans were said to have been "extremely offended." It was Sistani who demanded that Kofi Annan send a special envoy to Iraq. It was Sistani who insisted that free and fair elections must be held as soon as humanly possible. It was Sistani who insisted that the UN midwife the new Iraqi government, and not the U.S. and the UK alone. It was Sistani who insisted that the UN resolution not mention the Transitional Administrative Law.

Al-Hayat reports demonstrations in favor of Sistani on Tuesday. Likewise there were rallies for the new prime minister, Iyad Allawi.

Readers have frequently asked me for a thumbnail sketch of Sistani's political philosophy, and the issue came up on one of my lists today. I reproduce here what I wrote.

Sistani's conception of the new Iraq is that it should have an elected parliament, which will represent the will of the Iraqi people. His language on this is almost a translation of Rousseau (one might have wished for more Locke or Jefferson and less Rousseau, of course). The parliament should consist of laypersons, not clerics. And, it should be pluralistic and represent politically all Iraqis, including Kurds and Sunnis.

This elected, lay parliament is one basic element in the good society according to Sistani.

The other is the approval of parliament and its legislation by the Marja`iyyah or Shi'ite religious leadership. Legitimacy thus has dual roots, in the will of the people and in the approval of the clerics.

I have compared Sistani's vision of Iraq to Ireland in the 1950s. There was an elected, lay parliament. But if it took up a matter such as divorce, which affected the interests of the Church, the Bishops intervened and usually were able to get their way. Likewise, Sistani expects a majority of members of parliament to be lay Shi'ites, and he expects them to conscientiously heed his fatwas on social issues. These rulings, however, will be issued from the seminaries of Najaf and come from outside the government. Sistani expects to have no official post, and discourages clerics from seeking such posts. The clerical role is played out in civil society, not within the state, for the most part.

Sistani rejects Khomeini's theory of the guardianship of the jurisprudent (vilayat-i faqih) in governmental affairs. He does not want to see a faqih or supreme jurisprudent in Iraq similar to the position of Ali Khamenei in Iran. But he does speak about wilayat al-faqih fi al-masa'il al-ijtima`iyyah, or the guardianship of the jurisprudent in social affairs. The mechanism for such a guardianship is the issuance of fatwas or considered jurisprudential rulings.

Sistani would also like to have shariah or Islamic canon law form the basis for as much as possible of Iraqi civil law. Certainly he wants personal status law to be shariah for Muslims. This was the system in Iraq under the monarchy, and obviously it does create a shariah bench for clerical judges appointed by the state, where the clerics can have a voice in civil affairs. (This system was introduced in Pakistan under General Zia ul-Haq, of which Sistani is well aware because one of his key colleagues is Bashir Najafi, a Pakistani grand ayatollah).

So, Sistani is not a secularist by any stretch of the imagination. If he gets what he wants, religious law will have a vast influence on Iraqi society and politics, and women's rights will be rolled back. The ayatollahs in Iraq will have as big a megaphone as the Catholic bishops did in 1950s Ireland.

On the other hand, Sistani is not a dictator or a Khomeinist. He is much more analogous to Jerry Falwell in the U.S. – a major religious voice who wants to move the society in a certain direction through weakening the separation of religion and state, without himself seeking political office.

I don't actually think there is anything "immoderate" about Sistani's vision in a contemporary Middle Eastern context. It is not what the Bush administration wants, or what most educated Iraqi women want, or what the Kurds (and probably most Sunni Arabs for that matter) want. Attempting to implement the second part of it (ayatollah influence on legislation and social issues) will cause trouble with the other communities, potentially. But Sistani has all along been a Najaf pragmatist. He has constantly spoken of the need to assuage the feelings of the Sunni Arabs and Kurds. He will try to accomplish as much of his vision as seems practicable, and no more. His tools are not militias, guns, and bombs, but persistent persuasion and discourse. Occasionally he may bring peaceful crowds into the streets to demonstrate for some law or policy. It is in that discursive practice that his "moderation" lies.

My estimation of Sistani's potential influence is that it is generally positive given the situation of contemporary Iraq. It is important for traditionalist and even activist Shi'ites to hear praises of parliamentary governance and communal harmony. His potential impact on social legislation is reactionary, of course. But even he admits that the religious Shi'ites are likely to form less than 50% of parliamentarians, and that it is a little unlikely that he can get everything he wants any time soon. And he is willing to be patient about his goals, as long as they are met minimally.

The one point on which Sistani's stance raises some alarms in my mind is that he seems completely unsympathetic to Kurdish demands for safeguards as a minority, and wants to remove their veto on the new constitution to be hammered out next year this time. The potential for Kurdish-Shi'ite violence is substantial in the coming years.

Al-Hayat quoted Sistani's letter to Kofi Annan about the just-passed UN resolution on Iraq as follows:

"It has reached us that some are attempting to insert a mention of what they call 'The Law for the Administration of the Iraqi State in the Transitional Period' [i.e. the interim constitution] into the new UN Security Council resolution on Iraq – with the goal of lending it international legitimacy. This 'Law,' which was legislated by an unelected council in the shadow of Occupation, and with direct influence from it, binds the national parliament, which it has been decided will be elected at the beginning of the new Christian year for the purpose of passing a permanent constitution for Iraq. This matter contravenes the laws, and most children of the Iraqi people reject it. For this reason, any attempt to bestow legitimacy on it through mentioning it in the UN resolution would be considered an action contrary to the will of the Iraqi people and a harbinger of grave consequences."

This is the exact opposite of what the Kurdish leaders wrote to Bush.