WASHINGTON (ABP) — Some observers are worried that a new constitution for Afghanistan may do little more to protect religious freedom than did the oppressive Taliban government.
After months of negotiations among members of a constitutional commission, a draft of the proposed document was released Nov. 3. While setting up a government that mirrors the United States' system in structure — with three branches, an elected president and a bicameral legislature — it also declares Afghanistan an “Islamic Republic.”
The constitution names “the sacred religion of Islam” as the official religion of the country, according to a translation of the original Pashtu text.
While it follows that clause by saying, “Followers of other religions are free to perform their religious ceremonies within the limits of the provisions of law,” the proposal doesn't contain any provision separating mosque from state or explicitly ensuring neutrality between religious groups, as does the First Amendment of the U.S. Constitution.
The proposal also insists that no law in Afghanistan “can be contrary to the sacred religion of Islam and the values of this constitution.”
It allows political parties to form and operate only if the “program and charter of the party are not contrary to the principles of [the] sacred religion of Islam.” However, it also bans parties based on religion.
The document refrains from explicitly enforcing any particular school of sharia, or Islamic law, either, except when both parties involved in a court dispute are members of the same Muslim sect.
However, it does require that members of the country's highest court uphold an oath “in the name of God Almighty to support justice and righteousness in accord with the provisions of the sacred religion of Islam and the provisions of this constitution and other laws of Afghanistan.”
It also requires that appointees to the court be educated either in principles of secular law or “Islamic jurisprudence.”
Religious freedom was virtually nonexistent under the rule of the Taliban, a group of Islamic fundamentalists who held control over most of the country prior to the U.S. war against them in 2001. Although there are many in the ethnically diverse nation who subscribe to more tolerant strains of Islam, much of the country remains partial to the Taliban's conservative views.
And reports from the nation emphasize that many elements of the Taliban may be attempting to return to power.
A member of a U.S. panel charged with monitoring global religious liberty said the document does not ease her concerns.
“There's the potential risk of a judicial theocracy” developing under the current proposal's wording, said Preeta Bansal, a member of the U.S. Commission on International Religious Freedom.
In a telephone interview, Bansal also noted that the constitution does not protect basic human rights as sacrosanct in the same way as the U.S. Constitution or international human-rights declarations. “You have a situation where individual human-rights guarantees can be trumped by ordinary legislation, and that legislation is invalid unless it accords with specific teachings of Islam.”
Bansal is a visiting scholar at Harvard University's John F. Kennedy School of Government. She recently returned from a commission trip to Afghanistan where, among other things, she and other commission representatives met with the nation's chief judge.
The justice told the commissioners that Islam is compatible with most human rights — except for three critical ones. “All except freedom of expression, freedom of religion and equal rights for women,” Bansal reported the judge as saying.
“At one point when we asked him specifically about the constitution, he kind of made a general comment about how great the constitution was, but then he pointed to the Koran that was in the corner and said, 'This is our law,'” she added.
“That would be one thing coming from a lower judge, but this was the chief justice,” Bansal said.
Afghans from tribal and regional groups across the country will assemble in December in a traditional Afghan tribal council — called a loya jirga — to consider the constitution. Media reports said the proposal is unlikely to undergo significant alterations from the floor of the convention.