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March 01, 2004

Islamic Judicial Review

In Iran, the recent election of conservatives after the equivalent of a judicial court barred progressives from running in the election, and after that same body had blocked most reform legislation as counter to the Islamic nature of the constitution, highlights why odes to "judicial review" can be very dangerous-- if the Constitution requires that no law conflict with Islamic law, in the hands of the wrong judges, that could mean a whole range of democratic decisions may get overturned.

The just approved Iraqi Constitution inserted a provision that no law could be passed "against Islam." Who knows what that means? It may well depend not on the elections that will be held in the country, but on the unelected judges appointed to the courts.

And it is quite possible that women and other groups could win power in the elections, but lose it all by court fiat.

In Afghanistan, this is already happening. The courts there are now dominated by religious conservatives, led by Mullah Fazul Shinwari, Afghanistan's Supreme Court Chief Justice.

For decades, Shinwari taught at a Madrassa, or religious school. It was Shinwari's job to teach thousands of boys a militant and radical version of Islamic law, similar to that practiced by the Taliban.

Last year, Shinwari was brought from Pakistan to head the Supreme Court in Afghanistan. Within days of taking up his new post, he declared his intentions of using Taliban-style punishments to implement sharia law.

Nina Shea, a human rights expert in Washington, D.C., explained how the law works.

"There is a literal interpretation of moral code from the Koran and from the life of Mohammed that is then applied by the state, by a group of religious judges, using their own police force and using punishments that are considered cruel and unusual, if not torture," Shea said. "For example, 80 lashes for alcohol consumption, stoning to death for adultery, amputations for thieves."

Shea says religious zealots like Shinwari dominate the Supreme Court in Afghanistan and wield enormous power. "In an Islamic society, the judiciary is everything, that is the state, and that is also happening in Afghanistan," she said.

Many liberals will hear that the new Iraqi Constitution guarantees "judicial independence" but that may end up meaning the subversion of womens rights and other democratic rights in the name of judicial interpretation of their version of Islamic law.

Posted by Nathan at March 1, 2004 08:34 AM