Approval for Constitution's Islamic Content

Wednesday, 16 November, 2005

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Danish Karokhel

"If the constitution had not been based on Islam, people would have burnt the new laws in their villages and towns in protest," said Sayed Mohammad, a mason from Sar Qala in the De Sabz district, just north-east of Kabul.

Mohammad reflected the depth of feeling among many ordinary Afghans over a constitutional debate which reached a key juncture last week, with the unveiling of draft proposals that envisage the Muslim faith playing a central role in the running of the country.

The proposals, whose publication has been delayed for two months because the commission responsible for drafting them said it wanted to ensure full public consultation beforehand, proclaim Afghanistan an Islamic republic and Islam the official religion of the state - Article Three of the document makes it quite clear that no law can contradict the faith.

Devout Muslims and traditionalists had feared that the international community would steer the architects of the proposals towards diluting the role of Islam.

Like many, Ghulam Sakhi, who owns a transport business in Kabul, was relieved that the Afghan leadership avoided too secular an approach. "I have lost members of my family for the sake of Islam," he said.

For some of the country's intellectual and political elite, however, the proposals show that nothing has been learnt from the intertwining of religion and state in the past.

A pro-democracy women's activist, who did not want to be named, told IWPR that Afghans are Muslim to the core anyway, so they do not need so much emphasis on religion in the law.

"At present the fundamentalists want Islam to be used for political purposes, and they misuse it as they have misused it before," she said.

And she added that the fundamentalists will exploit the absence of a specific definition of an Islamic democracy to curb people's rights, "In the name of Islam they will seek to impose restrictions."

Like other people who favour a more secular constitution, she said that it was too dangerous to be identified in the current climate.

A poet, who also did not want to be named, complained to IWPR that the appointment of Professor Nematullah Shahrani - a noted conservative - as head of the commission in charge of drafting the constitution meant that those demanding an Islamic state had the upper hand from the start.

Indeed, Mohammad Sediq Patman, who sat on the commission, said that while many other issues were discussed at length, the role of Islam in the constitution had never been the subject of debate.

"Nobody gave the opinion that religion should be parted from politics, and I am did not witness such opinions," he said.

Some believe there will be bitter exchanges between fundamentalists and liberals at December's Loya Jirga, the national assembly which is to approve the final version of the proposals.

Habibullah Rafi, the author of a number of books on past Loya Jirgas, told IWPR that he believes the proposed constitution is better designed than previous ones, bringing together the needs of many different constituencies.

"The draft is made according to the Islamic soul, the Afghan nation's successful jihad values, national needs and the demands of the international community," he said.

Unlike the 1964 constitution, reinstated by the Bonn Agreement to serve until a new one could be approved, the draft preamble has several references to Islam, but it also acknowledges the United Nations Charters and the Universal Declaration of Human Rights.

Significantly, it grants people of other faiths the right to perform their own ceremonies and permits the Shia community to apply their version of Islamic law in some instances.

The religious freedom provision has been welcomed by members of the Hindu and Sikh community - the country's main non-Muslim group - whom IWPR interviewed.

Nirmal Singh, a shopkeeper in Sara-e-Banjara, a central market in Kabul, said, "I am happy because [such] freedom is good - I can worship according to my own religion."

But some minority community leaders complained that more could have been done to address their needs, citing for instance Article 17 about the development of educational and religious centres, which does not mention the temples where Sikhs and Hindus worship.

For a number of Sunni Islamists, however, the draft swings too far in favour of minorities.

Justice Khwaja Ahmad Sediqi, of the supreme court department responsible for imposing penalties, said that the religious freedoms offered by the draft may mean that members of other faiths will lead Muslims astray.

He also questions the recognition of the Shia school of law, saying it will create confusion in the judicial system.

Unlike the 1964 constitution, the new document allows Shia law to be applied in cases that are not already subject to the written body of law, and where both parties belong to the minority community.

For the majority Sunni population, cases where there is no specific law on the rulebooks will be judged by Islamic law according to the mainstream Hanafi school of jurisprudence.

Mohammad Daud Bakhtiari, director of research and studies at the supreme court and a Shia himself, pointed out that in a number of areas there is little difference between Shia and Hanafi law anyway.

Some Shia, such as Mohammadullah, a 50-year-old visiting Kabul on business from Balkh, believe there should be greater recognition of their laws, "We should have a judge and our jurisprudence should be official. If Shia jurisprudence is not officially recognised, this constitution worth no more than a piece of paper thrown in the dustbin."

Such debates are sure to rage on until - and of course during - the Loya Jirga which is to finalise the new constitution, but finding one of the 122,000 copies of the draft that are supposed to be in circulation is proving difficult.

Reflecting the frustration of many, Rahima, a primary school teacher, told IWPR, "I am happy that finally the draft of the constitution has come, but so far I have not been able to read it."

Danish Karokhel and Rahimullah Samander are local editor/trainers in Kabul. Staff reporter Farida Nekzad carried out additional reporting.