After months of painstaking deliberations, Afghanistan's draft Constitution was finally made public on November 3, 2003. However, the road to the final document would in all probability prove to be a daunting process as the formation of the draft was, and might end up being an inconclusive battle for supremacy between the liberals in charge of the country at present and the radicals who once called the shots.
The draft Constitution, drafted by a 35-member Constitutional Review Commission, reflects Afghanistan#146;s hopes for national unity after decades of strife. It includes some promising aspirations, with a preamble that calls for observation of the United Nations Charter and the Universal Declaration of Human Rights, and for a civil society with a 'deserving place in the international community'. The draft Constitution promises freedom of expression, the right to hold non-violent demonstrations and to form political parties, recognition of international conventions and measures for an open-market economy.
A plethora of divisive issues - such as structure and form of the government, distribution of power among branches of government, the role of the monarchy and the degree of Islam in the Constitution, religious and women's rights have sparked political wrangling between various factions resulting in two months' delay in the release of the draft Constitution. Contentions between groups both within and outside Afghanistan have posed a serious challenge to the making of the Constitution that aspires to combine the country#146;s deep-rooted Islamic traditions with democracy.
The role of religion has been one of the most sensitive areas in drawing up the draft, with Islamic parties, made up of former fighters of the mujahideen (holy warriors), arguing for a more conservative approach than moderates in the government like Hamid Karzai. The document describes Afghanistan as an 'independent, unitary and indivisible state', but in an explicitly religious context. The Constitution asserts Islam as the state religion and proscribes any law 'contrary to the sacred religion'. The draft contains the same language as the country#146;s 1964 Constitution to guarantee that 'In Afghanistan no law will be made, which will oppose Islamic principles'. Optimists take heart that Article 2 stipulates: 'followers of other religions are free to perform their religious ceremonies within the limits of the provisions of law.' But the document's language leaves much room, for suppression of speech and crimes against women. For example, Article 35 stipulates that the social and political organization, political parties and associations that Afghan citizens are 'free to create', must be constituted in keeping with the principles of Islam. The draft allows political parties to be established as long as their charters 'do not contradict the principles of Islam' and sets other conditions such as not having any military aims or foreign affiliation.
Notably, the draft Constitution does not call for a return to strict sharia, instead envisions the 'creation of a civil society ... based on the people#146;s will and democracy.' It says that 'no law can be contrary to the sacred religion of Islam…the members of the Supreme Court should be educated either in civil law or Islamic law'-- a provision that raises the possibility of more judges who base their rulings on the Koran rather than civil law.
Matters look much less specific when it comes to criminal and civil laws. By leaving out references to women, the draft signals a hands-off policy to parts of sharia that govern life in many Islamic societies and treat women differently from men. The United States Commission on International Religious Freedom (USCIRF), an advisory body to the US government, voiced strong objections to the draft's second chapter which allows 'provisions of law' to override the 'natural right' to life. Groups such as USCIRF, Amnesty International have strongly objected to language letting judges make decisions with Islamic law as a guide as it could allow for a religious orthodoxy to be officially imposed, stifling dissent within the Islamic tradition.
As the 500 deputies at a Constitutional grand council (loya jirga) are set to debate the draft on 10 December in Kabul, analysts have questioned the very efficacy of such a process. The prospects for the draft Afghan Constitution depend as much on strengthening the state's weak infrastructure as on its content. Barnett Rubin, who advised Afghanistan's drafting commission points out that Afghanistan is 'not ready' to produce a Constitution that represents a genuine political consensus within the society or to implement many of its provisions - and will not be ready until stable state institutions develop. Without a mass demobilization of militia troops or a means of training judges in Constitutional law, he pointed out, 'there's no reason anyone's behaviour would change as a result of a Constitution'.
Irrespective of the content of liberalism, which might end up being ingrained into the final Constitution, it is the enforcement of the Constitutional provisions that would writ large over the principles contained within. To quote Mariam Nawabi, Legal Advisor to the Constitutional Drafting Commission of Afghanistan, 'it#146;s one thing to write guarantees into a Constitution, quite another to make sure they are enforced.' As past Afghan history has proven it is not the language of the Constitution that will drive the reforms and implementation, but the capacity and willingness of other institutions, such as the judiciary, who need to support and guarantee those rights, what public support those rights get, and backing from the clergy who wield immense power in many communities.'
However, in times of competing ideological supremacy and the stage being set for the forthcoming elections next summer, the Constitution must not be allowed to be subjected to the political machinations of the interested parties with vested interests. Thus, the United Nations and the international community need to push for a language that ensures the protection of core human rights in this document. This Constitution must provide an enduring promise to all the Afghan people that their most basic freedoms are inalienable, not to be granted or withdrawn easily by a government, its courts or its religious leaders.
Shanthie Mariet D'Souza is a Research Scholar at American Studies, School of International Studies, Jawaharlal Nehru University, N.Delhi
The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.
PREV
