Background: Sistani and the recent case of Iraq

In the midst of the invasion of Iraq, when it became clear that Paul Bremer and the Coali- tional Provisional Authority (CPA)¹ had intended to exert their exclusive control over the constitution-making process, Grand Ayatullah Ali al-Sistani issued the following fatwa:

These forces have no jurisdiction whatsoever to appoint members of the Constitution preparation assembly.

With complete destruction of the Iraqi government and state organs, and the indisputable fact of a belligerent occupation of Iraq, the main legal arguments revolved around the con­cept of constituent power, what embodied it, and which international law theory the United Nation Security Council (UNSC) was to adopt for the legal return of territory to its original sovereignty. Two major theories could be used in this context: debellatio, adopted for the case of Nazi Germany after the Second World War, which assumed full sovereignty for the oc­cupying power, including legislative and constituent powers; and Geneva IV in conjunction with the UN Charter and the right of self-determination, reinforced by the 1970 Declaration of Friendly Relations, which assumed a protected sovereignty under occupation for people, either maintained despite the dissolution of government or transferred back from the occu­pying power.³ The first theory would allow the belligerent occupier to author the temporary laws during the transition period and the future constitution, whereas the second theory disallowed such inclusive power of the occupying army.

It seems puzzling to a non-comparatist legal scholar to believe that Sistani, a traditionally trained high-ranking Shi'ite jurist, was capable of dealing with these issues. Nevertheless, Sistani’s juristic views turned out to be consistent with what the modern international law, and in fact UNSC, would require for the constitution-making process in Iraq. Whether it is because of the Sistani’s fatwas or the UNSC resolutions, the resultant constitution reflects more genuine autochthonous elements of the Iraq’s constitutional culture, with its own ver­sion of popular sovereignty, than what CPA originally intended it to be.⁴ Any bewilderment as to Sistani’s stance should be removed when one is reminded of the British colonial attempt in 1923 to impose yet another constitution in Iraq and the Shi'ite jurists’ much more militant opposition to it.

The main objective in an Islamic constitutional theory of state is to uphold the Divine sovereignty and implement laws that most authoritatively represent it. In other words, these are meta-constitutional principles that are antecedent to any political theory. The practical issue, however, is the legitimacy of state and the extent to which it is capable of striking a balance between the rights and duties of the government and people. In the Shi'i school, Imamate, with the exception of the Prophetic rule, is regarded as the most authoritative form of Divine representation and, thus, at the centre of any legal or political theory of state. However, as will be discussed, there is a gap between an ideal Imamate rule and the proxim­ity of the outcome of realpolitik to such a model. Thus, in dealing with the existing political power, Shi'i jurists have developed legal doctrines — most important of which being wilaya — that not only maintain and reinforce the theological nature of Imamate, but also react to the historical realities on the ground. Apparently, in Sistani’s view, absence of a constitutive role for people amounted to violation of those pre-constitutional principles and illegitimacy of any government that it would produce.⁵

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