Shortly after Afghanistan’s cabinet was announced in June, new chief justice Fazul Hadi Shinwari denounced the newly appointed women’s affairs minister, Sima Samar, for speaking “against the Islamic nation of Afghanistan.” Samar was formally charged with “blasphemy,” which can carry the death penalty. Her crime? Dr. Samar had allegedly told a magazine in Canada that she did not believe in sharia, or Islamic law. Fearing for her life, Samar ultimately declined her office, even though, under intense U.S. pressure, the charges were dropped.
President Bush has robustly affirmed the importance of human rights and democracy in America’s foreign policy. In his New York Times op-ed on September 11, the president declared that America would work “to extend the benefits of freedom and progress to nations that lack them.” One might think, then, that the political reconstruction of Afghanistan—entailing considerable American involvement and hundreds of millions of dollars in financial support—would present a clear opportunity for protecting the human rights the president championed.
Think again. Notwithstanding the endless news stories about girls being allowed to go to school, Afghanistan is in imminent danger of being reconstructed as an Islamic state under hard-line sharia law.
This hard-line rule differs from more common applications of sharia, which regulate mostly family and inheritance issues. Under the Islamist version of sharia, courts pronounce and enforce strict, all-encompassing codes of behavior supposedly based on a literal reading of the Koran and accounts of Mohammed’s life. Commanding their own police forces, the courts apply archaic rules of evidence and administer harsh corporal punishments. The final rulings of sharia criminal courts are considered to be pronouncements of divine law, and as such cannot be criticized or altered. The broad range of human rights—freedoms of expression, press, and religion; equality under the law; non-discrimination; the right not to be tortured—are typically denied.
In June, President Karzai appointed a politically diverse cabinet, including a number of moderates, to lead Afghanistan’s government in the current transition period. To head the supreme court, however, he appointed Shinwari, a man with a well-publicized commitment to implementing hard-line sharia. On January 24, for instance, Shinwari had told the international press that under the new government, adulterers would be stoned to death, the hands of thieves amputated, and consumers of alcohol given 80 lashes.
He is also opposed to the practice of Christianity. Reuters quoted him as stating: “The Islamic government, according to sharia, is bound to punish those who get involved in anti-Islamic activities. We can punish them for propagating other religions—such as threaten them, expel them and, as a last resort, execute them.” Shinwari told a National Public Radio correspondent that Islam has three essential rules. First, a man should be politely invited to accept Islam; second, if he does not convert, he should obey Islam. The third option, if he refuses, is to “behead him.”
Two weeks before his appointment as chief justice, Shinwari reiterated that the nation would continue as an Islamic state under all-encompassing sharia law. According to Agence France Presse, Shinwari insisted there would be no “Western-style government” in Afghanistan: “No one will accept it. Only an Islamic government is acceptable to the Afghan people.” The 70-year-old justice had lived in exile for nearly 40 years, mostly in Pakistan, where he taught Islamic law at a madrassa. Decorating the wall above his desk, according to the Associated Press, are a sword and a leather lash for flogging. They were left by the Taliban, but Shinwari keeps them up as symbols of the harsh sharia justice which he also endorses.
Not that Shinwari isn’t critical of the Taliban. Indeed, he never misses an opportunity to denounce them as “barbaric” for having carried out stonings and amputations as public spectacles in Kabul’s sports stadium, rather than in private. He has faulted them for pressing private doctors, and not special prison doctors, to implement sentences of amputation. He has deplored their rushing hastily to judgment, instead of methodically using appropriate procedures. But Shinwari has never backed away from the extreme sharia punishments, and has repeatedly and publicly asserted that he intends to apply them in the supreme court he now heads. “We are not eager to execute criminals or chop off heads,” he recently told the Washington Post, “but if all the conditions are fulfilled, [it] is required.”
In an absolute sharia state, only the judiciary holds power. Iran’s President Khatami has repeatedly complained that religious judges hold the real levers of power and do not allow him to usher in the civil liberties for which he was twice elected. Already in Afghanistan, Karzai’s justice ministry has ceded formal control of the central prosecutor’s office to the court, and a commission on judicial reform was dissolved after religious hard-liners obstructed it. If Shinwari’s vision of Afghanistan were realized, he and his colleagues on the bench would emerge as the country’s most powerful political figures. And the U.S. should not expect much in the way of cooperation from them. Shinwari has already said that he will be lenient with those involved in Afghanistan’s opium industry—a priority concern of the State Department—since, as he explained to the press, narcotics are not banned under Islamic law. Nor is it a good sign that he is given to referring to non-Muslims, even in public interviews, as “infidels.”
Shinwari’s role recently became still more troubling. In August, Afghanistan’s interim government established a religious law-enforcement apparatus, called the Accountability Department, functioning under the direct authority of the supreme court. The department is headed by a former mujahedeen figure, Mohammad Mustafa, who has a degree in religious affairs.
Because it hears appeals from lower courts that have yet to complete their first full year in session, the supreme court has only recently begun to hand down opinions. But even one of its early cases confirms human-rights fears. The supreme court backed a decision by the head of Kabul Radio and Television to ban the broadcasting of female vocalists and the airing of Indian films. “We totally oppose the idea of half-naked scenes or . . . women’s songs,” the court’s spokesman stated.
And if persuasion doesn’t work, the court will fall back on fines, imprisonment, and lashings. The new religious police has a staff of 200 to 300, including 50 women who are to visit girls’ schools to enforce Islamic behavior.
In September, President Karzai confirmed that sharia is the law of the land during a Q & A at the Council on Foreign Relations. He tried to give assurances that amputation punishments, at least, would not be applied: “There are strict, strict rules of earning that kind of punishment. Very strict rules . . . So I assure it will not happen.” But what if the new court were to dispense with the “strict rules”—as the old Taliban court did? Will critics of the court share Sima Samar’s fate and be charged with blasphemy? One of the problems with extreme sharia is that it allows no room for checks on judicial power. Karzai probably knows better, but he is under strong pressure from an Islamist defense minister, Mohammed Fahim, and the still well-armed leaders of the Northern Alliance. Iran provides a real-time demonstration of how and why extreme sharia law is difficult to reform, let alone remove. In early September, Hashem Aghajari, a leading voice in President Khatami’s reformist movement, went on trial for “blasphemy” after giving a speech in which he called for reforms of the sharia system. He could now face the death penalty. Scores of other critics of sharia law have been flogged and jailed in Iran in recent months, and some 60 dissenting publications have been shut down.
The stoning to death of women found guilty of adultery under the Taliban (and, more recently, in Africa) has prompted outraged editorials in the West. But the more fundamental problem of extreme sharia—that its all-powerful judicial apparatus precludes democracy and sharply reduces human freedom across the board—has been all but overlooked. When asked about the development of penal sharia in Afghanistan, a senior State Department official told me recently that State was concerned about Karzai’s security, not about sharia. They fail to realize that in a hard-line sharia state, with 7th-century laws and punishments, the supreme court is not merely another branch of government: It’s where the real power resides. Countries where religious judges directly command the coercive powers of the state are de facto theocratic. No president or parliament can override their decisions, no politician or journalist can criticize them; to do so would be blasphemy.
The United States may have a chance to prevent a theological iron curtain from again descending on Afghanistan. Last summer, the country’s legislative body initiated the year-long process of drafting a new constitution. In this drafting, it is crucial to the protection and expansion of human freedoms that the country not be defined as a sharia state, that the judiciary not be given control over law enforcement, that sharia jurisdiction not encompass criminal law, and that training in human-rights jurisprudence be a requirement for members of the supreme court. Certainly it is important that the United States protect Karzai’s life, but let’s not preserve him as merely a powerless figurehead.
This article appeared in the National Review.