A conversation with Noah Feldman

In this interview, law professor and Islam expert Noah Feldman reflects on his experiences with two of the world's newest constitutional processes. He was an advisor to the State Department on religious liberty issues in the drafting of the Afghan constitution. In Iraq, he was a senior constitution advisor to the Coalition Provisional Authority from mid-April to July 2003. He continues to advise various members of the Iraqi Governing Council, and he consulted in the drafting of some of the interim constitutional documents.

(This interview appears in the March 2004 Issue of the State Department's electronic journal, Issues of Democracy. The Issue is titled "Constitutionalism and Emerging Democracies" and can be found at http://usinfo.state.gov/journals/itdhr/0304/ijde/ijde0304.htm).

Following is a transcript of the interview:

(begin transcript)

Question: In your book After Jihad, America and the Struggle for Islamic Democracy, you argue that Islam and democracy are not incompatible and that Islamic values and democratic ideals can co-exist in a successful society. What led you to that conclusion?

Feldman: There are several issues at stake here. First is that many, many people in the Muslim world say publicly they believe that democracy and Islam can work together well. Of course, there are Islamic countries that are democratic and relatively successful at democracy. Turkey is the most obvious example, but one could also look to Indonesia or Bangladesh as democracies that are finding their feet. In addition, there have been recent democratic reforms in a range of other Muslim countries-the new constitution in Bahrain, to give one striking example.

At a practical level, we see that Islamic democracies can and do exist, and at a theoretical level, a growing number of scholars and ordinary people in the Muslim world argue that the traditions of Islam and democracy aren't incompatible and can be made to work together.

Question: When it comes time to develop a democratic constitution in an Islamic country, what are some of the special considerations and specific challenges?

Feldman: Well, the first is at the theoretical level. People have to come to see the general approaches of the two as not incompatible. Some people think that because God is sovereign in Islam, the people can't be the ultimate decision makers in their governance. There might be a difficulty in resolving the political power of the people and the sovereignty of God.

But at the theoretical level, I think it's possible to respond that in Islam, although God is sovereign, God's laws are still interpreted by humans, and day-to-day governance happens by people, not by God. What's more, in democracy we believe there are some fundamental rights that transcend what the people might or might not think was right at a given point, like the right to life and liberty.

Then there is the practical process of figuring out institutions within the constitution that will mediate between Islamic and democratic values when they might appear to outside observers to be in contention with each other.

AFGHANISTAN

Question: In Afghanistan, what kinds of structural issues did the drafters face?

Feldman: Those kinds of issues are important in any constitution writing process. They don't specifically relate to the Islam-democracy question. You could have a strong executive branch of government in Islamic democracy or a weak executive. Those are very important questions for any constitution across the board.

What they had to deal with in Afghanistan was the fact that the constitution declares Islam to be the official religion of the state. But it also declares the Afghan state to be one in which there are elections and democratic values.

They had to deal with the structural question of when to apply Islamic law. They came up with a provision in the constitution, which originally appeared in the 1906 Iranian draft constitution, stating that no law made by the people shall be contrary to Islam.

They also created a constitutional court that presumably has the power to adjudicate whether a given law violates the values of Islam. Here we see an example of a place where they identified a potential conflict, and they adjudicated it. To be more precise, they created an institution to adjudicate the conflict.

Question: I understand that the high court is going to be a combination of secular law judges and Islamic judges. Are you optimistic that will work?

Feldman: It's an experiment. It has the possibility of working, but there are certainly no guarantees. It's an experiment with a body that will be able to mediate between those two different sets of values, and do it in a way that is perceived as legitimate by the rest of the Afghan people.

Question: Does Shariah [the body of Islamic laws] play any other role under the constitution, besides in the high court and in the part you just referred to stating that no law shall be made that goes against Islam?

Feldman: There is a guarantee that where Shariah is applied, the particular school of Shariah that a given person belongs to will be respected, so no one will be obligated to follow a branch of Shariah that is not their own branch.
This provision is guaranteed in the constitution. That is probably the most prominent place where Shariah plays a role. Interestingly, there is no provision saying specifically that Shariah is a source of legislation or the source of legislation in that constitution.

Question: Are there deliberate ambiguities or gaps in the Afghan constitution? For example, issues that couldn't be decided on or for which consensus and agreement couldn't be reached that are to be left to the future somehow?

Feldman: The constitution guarantees the equality of women, but doesn't address the question of what would happen if some particular provisions of Islamic law were seen to be incompatible with their equality.

Maybe the constitutional court will just interpret the Shariah to be egalitarian, and that would be one possible outcome. That issue isn't explicitly addressed. So, yes, there is a sort of gap, if you will, left there. It will be up to this court to deal with it.

Question: Women's groups have expressed a concern that the guarantee for women's rights in the constitution is not as clearly stated or as strong as they would have preferred.

Feldman: There is a specific [number of delegates] set aside for women in the legislature, and an express guarantee of equality for women in the constitution. There's also a guarantee that Afghanistan will abide by international treaty obligations, which include the [U.N.] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Those are three pretty strong guarantees, notably none of which are noted in the U.S. Constitution. We don't have a set aside for women in the legislature. We don't have an expressed mention of women as equal in our Constitution, nor have we ever ratified the CEDAW. It could always be better, but that's a good start by Afghanistan, I think.

IRAQ

Question: Let's move on to Iraq. The Iraqi Governing Council adopted a so-called "interim constitution" on March 8. What does this do, and how long will it be in effect?

Feldman: What it does in principle is that it creates a framework for government, first during the transitional period prior to national elections in January 2005, and also it provides a framework for what the government will look like once those elections take place. In reality, it still remains to be seen whether the constitution will go into effect as written, or whether it will be changed. As of right now, the Governing Council members have agreed to abide by it after June 30.

Question: Are there indications that there will be a lot of pressure to change the interim constitution?

Feldman: There is already pressure to change it. The very day that it was signed, Shia leader Ayatollah al Sistani said that he had issues with it. Other Shia leaders seemed to have echoed those concerns. The concern that Ayatollah al Sistani has spoken of expressly in a recent letter to the United Nations Special Representative, Lakhdar Brahimi was that the three-man presidency created by the transitional constitution is insufficiently majoritarian. His letter states that he hopes the U.N. Security Council resolution will not endorse the entire document as it stands, but will recognize that the National Assembly has the authority to amend this document. He specifically implied that he would like to see an amendment to the three-man presidency.

Question: So the structure of the government is a presidential rather than a parliamentary system?

Feldman: No, it actually is a parliamentary system with a prime minister, and then a three-man presidency which has some real powers, some veto powers, but which is not the primary executive.

Question: What does the interim constitution have to say about human rights and religious freedom?

Feldman: It guarantees freedom of religion, freedom of conscience, freedom of thought in language that is borrowed from the Universal Declaration of Human Rights. It also specifies a whole list of basic human rights familiar from international human rights documents: rights against torture, rights to equal protection of a citizen, rights to due process of law, and so forth.

Question: So it's close to being a complete Bill of Human Rights?

Feldman: I would describe it as an exhaustive bill of human rights. It guarantees equality for all Iraqis whether they are men or women, regardless of their religion or their ethnicity or national origin. It is very comprehensive list of rights, a remarkable document in that respect.

Question: Does it have provisions for women in government?

Feldman: It does. The Transitional Administrative Law states "The National Assembly shall be constructed in such a way as to ensure that 25 percent of the representatives to the National Assembly are women." Now, there is some debate over whether that is a strict quota or whether that is a target to aspire to. The language is somewhere in between, but I would say closer to an express requirement that the National Assembly be made of at least 25 percent women.

Question: Do you expect that there will be a wide public debate on the document?

Feldman: I do. The document was drafted without major public participation. That is a defect understood by all. There will now be a debate, first of all, about the character of the transitional law itself. I expect there to be a robust debate about that. And then, I expect there to be a further debate on the question of what aspects of this document should be altered or should remain the same in a subsequent permanent constitution which is to be both drafted and ratified by the National Assembly.

Question: In terms of political activity, does the transitional constitution prohibit, as the Afghan constitution does, political parties organized around regional or ethnic groups?

Feldman: It does not, nor could it have done so and remain consistent with the political organizations associated with Kurdish parties. The Kurdish Democratic Party and the Patriotic Union are both organized around Kurdish identity and come out of Kurdistan.

Question: If the constitutions in Iraq (eventually) and in Afghanistan enjoy some success and foster stability and new freedoms for their citizens, what impact do you think this will have on the rest of the region?

Feldman: I think it will throw into relief the lack of freedom and democracy in some of the neighboring countries. Iran had some very promising democratic developments which now seem to be short-circuited, and if you see Shia Clerics in Iraq calling for open, free elections, and Shia Clerics in Iran calling for limited election, it will have an influence on Iran, because Iranians will see even more clearly than they already do just how failed their system has become.

Similarly, in Saudi Arabia, people will see on satellite television, public debate over important constitutional issues, and they will see that those kinds of debates don't "bring the house down" necessarily, and that will increase pressure for opening and liberalization there.

In Syria as well, I think there will be an increased sense of the necessity of greater reform than has happened heretofore. I think it is going to have a positive effect everywhere in the region.

If democracy fails in Iraq, it's going to have a negative effect everywhere in the region. People who are advocates of liberalization and democratization will increasingly come to see and think that democracy is not a viable governmental structure in majority-Muslim countries. That would be a terrible, terrible shame.

Question: The question a lot of people ask is: "What happens if Islamic extremists are elected democratically?" You give a disturbing example of Algeria in your book.

Feldman: I think one thing to be clear about Algeria, despite what many people recall, is that it wasn't in fact the Islamists who drove the country into civil war. The Islamists didn't say they were going to abolish democracy. To the contrary, they said they were willing to participate democratically. They never got the chance to prove that one way or the other, though, because the military government called off the elections, and they are the ones who really brought about a loss of freedom in the country.

I do think that elections everywhere in the Muslim world, where they have been somewhat free in recent years, have led to Islamic parties doing very well. I would expect the same thing to happen in Iraq, and indeed in Afghanistan.

That's the general trend that one sees. That doesn't mean that those parties are necessarily going to act undemocratically. Turkey is an example where the party that is in power is a moderately Islamic party, but they don't go by that name. Turkey's official secularism dictates they can't, but they are. They have been governing very democratically.

Question: So, once they came to power, they kind of moderated themselves?

Feldman: In Turkey, they were relatively moderate when they were running for office. I think the reality of being in a democracy is you have to get re-elected. As long as you have to get re-elected, you can't govern in a way that is going to alienate large segments of the population. In Iran, by contrast, where the rulers came to power by revolution, they are able to get away with oppressive measures, even though the people profoundly reject them. There is obviously a significant difference between coming to power in a legitimate way and coming to power by force.

Noah Feldman is a professor at the New York University School of Law in New York City. A former Supreme Court clerk, he earned a doctorate in Islamic thought from Oxford University in England as a Rhodes Scholar. He is the author of. After Jihad: America and the Struggle for Islamic Democracy. He was interviewed by Leslie High.

The opinions expressed in this article are those of the author and do not necessarily reflect the views or policies of the U.S. government.
(end transcript)

(Distributed by the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)