Taliban Lite: Afghanistan's Draft Constitution
June 2, 2003
by Paul Marshall
In November, the Afghanistan government’s new proposed constitution – drafted under U.S. and UN auspices was unveiled.. It is a murky blueprint for a repressive state, what the U.S. Commission for International Religious Freedom calls "Taliban-lite."
The U.S. press has completely missed the story and reported the draft as an advance for liberally democracy. The New York Times, echoed by Reuters and Associated Press, wrongly stated 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. (Such Hanafi laws 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." This is a right merely to ceremonies, and there is no religion whose practice is limited merely to ceremonies. And even this narrow right is made subordinate to ordinary laws.
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...." 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.
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 (not necessarily consistently) 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" will be no defense against them.
The U.S. 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."
This was adapted from an article by Center Senior Fellow Paul Marshall that appeared in National Review Online.
Paul Marshall is a Senior Fellow with Hudson Institute's Center for Religious Freedom.