Constitutional Dilemma

Legal experts may struggle to draw up a constitution acceptable to both Afghans and their western backers.

Constitutional Dilemma

Legal experts may struggle to draw up a constitution acceptable to both Afghans and their western backers.

A committee set up to draft a new Afghan constitution is facing a tough task – how to respect Islamic law without offending the West.


When completed, legal code will mark a new era for Afghanistan, which has only recently emerged from more than two decades of conflict.


Committee chairman Nematullah Shahrani, the transitional administration’s deputy president, believes it will bring social justice to the country. "We hope the constitution will meet the hopes and needs of the people of Afghanistan," he said.


Speaking after the committee was named on November 3, the country’s former king Zaheer Shah said, “I hope that the commission will make a constitution which will be both democratic and Islamic."


The two issues, however, sit uneasily together, and some analysts are already accusing the constitutional committee of favouring western ideas over Islamic principles.


Of the nine legal experts on the body, five - including the chairman - have been educated at American universities or have lived a number of years in the West. However, most of them have also had training in Sharia law.


Debate is now focusing on how much importance the new constitution will place on Islam – as a secular one would be unlikely to be approved by the Loya Jirga or the population in general.


Representatives of western countries, which are pouring millions of dollars into rebuilding Afghanistan, favour a secular legal code, as they believe it would be more democratic.


Shahrani is heading a committee comprising Abdul Salam Azemi, Mohammad Rahim Sherzoi, Mohammad Qasim Fazeli, Mohammad Moosa Maroofi, Mohammad Moosa Ashhari, Mohammed Sarwar Danish, and the woman judges Mukarama and Asifa Kakar.


Kabul judge Abdul Saboor, who is the head of the Union of Afghan Specialists, a body of professionals and experts, told IWPR, "We don't have more intelligent people than these in Afghanistan. They are the most qualified in [the field of] constitutional law.


"I believe authority will be given to the legislature, executive, and judiciary - while political parties and the media will be granted independence and there will be a separate chapter for human rights.”


But Kabul law professor Mohammad Jafar Kohistani voiced doubts about the committee, telling IWPR, “President Hamed Karzai wants to make a government in Afghanistan which will not offend Britain and America.


"Priority should be given to Islam, otherwise people all over Afghanistan will burn their new constitution."


Shah Mahmood Kherad, president of the Afghan Lawyers Union, accused the commission of having “too many outsiders”.


"They might know about Afghan issues, but committee members were supposed to have come from inside the country and be very familiar with the difficulties here,” he said.


However, committee member Mohammad Sarwar Danish told IWPR that they will not be working in isolation. "We will take account of people’s views across the nation, and will be taking advice from other experts," he said.


In addition, he said the Loya Jirga "will be given the complete authority and independence to scrutinise the new constitution" and make amendments.


Abdul Aziz, president of the Sharayat faculty at Kabul University and deputy of the Loya Jirga commission, said, "We have to pay attention to society’s needs, and not ignore general Islamic principles.”


Karzai, who spoke briefly at Sunday’s ceremony, made only one small reference to religion in his speech. "We are grateful to God that we are able to open a new page in the history of Afghanistan and prepare a constitution which is according to the people's needs," he said. There was no mention of Islam.


Danish Karokhel is an IWPR reporter.


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