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Afghan constitutional debacle

By Bruce Fein

Published December 9, 2003


The Taliban's wretched theocracy in Afghanistan succumbed to the U.S. military two years ago. Ordinary Afghan citizens wept with joy. But few shed the religious, tribal and ethnic based attitudes and practices that have defeated freedom, democracy and the rule of law in Afghanistan for millennia.

The draft Afghan constitution, released last month and fashioned under the guidance of the United States, celebrates religious intolerance and the supremacy of the Sunni sect of Islam. Benighted mullahs command greater constitutional standing than secular democrats.

The post-Taliban constitutional debacle should have taught the Bush administration a cluster of nation-building axioms: that political and social culture must be transformed before inaugurating popular elections and majority rule; that democratic-friendly cultural transformations require decades -- not years abbreviated by presidential politics -- of U.S. occupation and governance; and that tyranny by the majority is tyranny, not democracy.

But like the French Bourbons, the Bush presidency seems to forget nothing and learn nothing. Its Afghanistan folly has been repeated in Iraq, which each unfolding day there confirms.

The draft constitution denies equal justice under law to non-Sunnis and women. The preamble proclaims on behalf of the people of Afghanistan a belief "in the sacred religion of Islam." In other words, non-Muslims are subservient to the 85 percent Sunni Afghan majority.

Article 2 of the draft enshrines Islam as the official religion. Non-Muslims may practice their creeds only to the extent permitted under laws enacted by the Muslim majority in the National Assembly. The prospects of religious minorities are bleak. The history of Afghanistan is a history of religious intolerance. Shi'ite s, Christians, Hindus, Buddhists and other sects have been generally unwelcome and subjugated.

Article 3 condemns any law "contrary to the sacred religion of Islam." Accordingly, the Holy Koran, the Sunna and Sharia, as interpreted and applied by mullahs, are the supreme law of the land. A law that endowed women or non-Muslims with equal rights, for instance, would be unconstitutional.

Article 17 obligates the state to indoctrinate students in Islam, and to upgrade the "conditions of mosques, madrassasas and religious centers." Categorically rejected are the separation of church and state and evenhanded treatment of all religious sects embraced in the United States Constitution. Indeed, no popularly elected Afghan official or popular leader, past or present, has ever urged or praised freedom of religion in the manner of George Washington, James Madison or Thomas Jefferson.

Article 35 suppresses political parties which dissent from "the sacred religion of Islam." Accordingly, to organize and to demonstrate peacefully for the purpose of amending the constitution to dethrone Islam from its privileged aerie would be illegal. All politics must bow to Islam. Article 45 similarly insists on Islam as the North Star in the classroom. It directs the state to "devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam" and to "develop the curriculum of religious subjects in schools on the basis of the Islamic sects existing in Afghanistan." Article 54 further declares war against opponents of Islam by enjoining the state to eliminate family customs or traditions "contrary to the provisions of the sacred religion of Islam." The latter frowns on such Western commonplaces as freedom of marriage, working women and coeducation.

Article 62 requires an Islamic litmus test for all presidential candidates; and, the elected president must swear to "obey ... the sacred religion of Islam. ... " Ministers must also swear to the identical oath under Article 74.

The judiciary is also made an instrument of Sunni Islam. Appointed by the president for 10-year terms, judges are to have higher education in "Islamic jurisprudence" and to swear support for "the provisions of the sacred religion of Islam," according to Articles 118 and 119. Article 130 directs judges to "follow the provisions of the Hanafi jurisprudence" and to "render a decision that secures justice in the best possible way" in the countless cases not directly addressed by the constitutional text.

Religious over secular law is again saluted in Article 131. Courts are mandated to apply Shi'ite jurisprudence in personal matters involving Shi'ites and in other cases in which all the litigants are followers of the Shi'ite sect.

At present, more than 19,000 delegates are selecting 500 members of a loya jirga for amendment and ratification of the draft constitution. Generally speaking, delegates have protested that Sunni Islam is slighted by the crumbs thrown to women and Shi'ites.

They need not fret. Culture invariably trumps constitutional text. Afghan culture depreciates women like white culture disdained blacks during Jim Crow. The handful of women delegates among the 19,000 must wear Islamic head coverings. They are segregated and denied copies of the proposed constitution. They must be escorted by a male relative at all election events. As reported in The Washington Post on Dec. 4, a lone female candidate for the loya jirga from Gardez related: "In my district, none of the women knew anything about the loya jirga, including me, and none of us was given a chance to read the constitution."

Bruce Fein is a founding partner of Fein & Fein.

Copyright © 2003 News World Communications, Inc. All rights reserved.

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