National Review Online
November 7, 2003
by Paul Marshall
Earlier this week, the Afghan government made public its long delayed draft constitution. It is a murky blueprint for a repressive state, what the U.S. Commission for International Religious Freedom calls "Taliban-lite." You would never guess this from reading the American press.
The Washington Post headlined its story "Proposed Afghan Constitution Fits U.S. Model." Well, yes, if you mean that Afghanistan will have a president, a bicameral legislature, and no prime minister. But you don't need to be expert in the Federalist Papers to realize that there is rather more to our Constitution than this. It's not quite the U.S. model to declare, "no law can be contrary to the sacred religion of Islam" (Article 3).
The New York Times, echoed by Reuters and Associated Press, wrongly says that the draft has "no mention of Shariah, a legal code based on the Koran...." In fact Article 130 says that, in the absence of an explicit statute or constitutional limit, the Supreme Court should decide "in accord with Hanafi jurisprudence," one of the four main Sunni schools of sharia. (Some forms of Hanafi law give a women's court testimony only half the weight of a man's.) Supreme Court justices are required to have higher education "in law or Islamic jurisprudence" and, like the president and Cabinet members, must take an oath to "support justice and righteousness in accord with the provisions of the sacred religion of Islam."
The draft provides no guarantees of religious freedom and says only "other religions are free to perform their religious ceremonies within the limits of the provision of law" (2). This is a right merely to ceremonies, and there is no religion whose practice is limited merely to ceremonies.
Threats to religious freedom concern Muslims as well as non-Muslims, and lie at the heart of democracy. Already, as in Iran, the draft outlaws any political party "contrary to the principles of the sacred religion of Islam..." (35). If the state declares that its laws and decisions are identical with Islam, then any opposition can be punished as violating Islam. In Afghanistan, this is not a theoretical question.
When the cabinet was announced last year, Fazul Shinwari, the chief justice, denounced Sima Samar, the newly appointed women's affairs minister, for speaking "against the Islamic nation of Afghanistan" and she was charged with "blasphemy," which could carry the death penalty. This June the Afghan courts shut down the publication Aftaab and charged its editor, Sayeed Mahdawi, with blasphemy for criticizing the government's view of the role of Islam. Shinwari has threatened to kill those who criticize his version of sharia and refuse to "obey the laws of Islam."
While the draft outlaws discrimination on the basis of religion and sex, and professes adherence to international human rights standards, these provisions are subject to the stipulation that they cannot be contrary to an undefined "sacred religion of Islam...." The constitution does not say what the principles of Islam are. They will be defined at some later point by Islamic judges. But, whatever they are, they will be the law of the land and "ignorance about the provisions of laws" (56) will be no defense against them.
Most other rights can be exercised only "within the limits of the provisions of law." This could mean that the right will be limited when it is thought to violate sharia, or that it can be limited by statute. Both are dangerous. Serious constitutions hold that when laws violate rights, it is the law that is voided, not the rights. This is not foreign to Muslim countries: It is the constitutional language of Bangladesh, Malaysia, and Pakistan.
In his November 6 speech on promoting democracy in the Middle East, President Bush said that the constitutional draft recognizes Afghanistan's "Muslim identity, while protecting the rights of all citizens." In its present form it does no such thing. The administration needs to work with Afghani moderates to amend the draft when it goes to the Loya Jirga on December 10. After that it may be too late. Article 149 provides that the "provisions of adherence to the fundamentals of the sacred religion of Islam...cannot be amended."
Paul Marshall is a Senior Fellow with Hudson Institute's Center for Religious Freedom.
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