Posted on 11/10/2003 10:34:10 AM PST by knighthawk
Fewer than two years after its liberation from the Taliban, Afghanistan is debating a new constitution for its future. The draft, prepared by an all-party committee, is expected to come into force next year after being amended and approved through a process of popular consultations.
Those who opposed the liberation of Afghanistan (largely because America played the central role in achieving it) have already dismissed the draft constitution as either irrelevant or as bad as what the Taliban had on offer. For their part, those who wished to see the back of the Taliban, virtually at any cost, have rushed to fudge the weaknesses of the proposed draft.
A closer examination, however, shows that the draft, while welcome in its broad outline, suffers from a certain timidity on the part of its authors.
This was a chance to make a clean sweep of all the despotic and medieval measures imposed on Afghanistan since 1977 under the communists and the Taliban. The draft partly misses that opportunity because its authors apparently underestimated Afghans' capacity to adopt modern ideas of political organization.
Critics of the proposal have already noted that the term "Islamic Republic" is used to describe the new Afghan state. In a sense, this is an oxymoron, because no republic could be Islamic or Christian or Buddhist.
A republic is based on the principle of a people's sovereignty regardless of religious or ideological considerations. In the case of Afghanistan, however, the term might appear more acceptable because almost all Afghans are Muslims and thus would not see the term "Islamic" as an imposition.
Nevertheless, the balance that the draft is trying to establish between religion and state is, at best, fragile, and, at worst, impossible to achieve.
The authors have dug deep into the experience of the Ottoman Empire in their effort to demarcate the private and public spaces. The result is a clever manoeuvre that might not be easy to pull off.
Under the proposed draft, issues of personal and private life -- marriage and divorce, inheritance, child custody -- are handled by the shariah (traditional Islamic jurisprudence). The public space, however, is managed through laws enacted by the directly elected parliament and carried out by a president of the republic who is also elected directly.
But most private matters in Islam are contractual, rather than "sacred" (as is the case in a Christian marriage, for example), so there will be ample opportunity for individuals to ignore the shariah rules through mutual consent.
For example, a Muslim man can take up to four full wives and numerous temporary ones. But any woman can demand her future husband forgo that right in a formal written marriage contract. Women can also demand equal rights in such cases as divorce, custody of children and inheritance -- all through contracts.
All the "Islamic" state in Afghanistan will demand is that no law is passed nor a contract concluded that contravenes the basic rules of the faith and the shariah. For example, no marriage contract could give a woman the right to have several husbands at the same time.
The application of the shariah to private matters is likely to remain widespread in the less-developed rural areas but is certain to gradually fall into disuse among the better-educated urban middle classes.
This is already happening in non-Muslim countries, notably India and Greece, which recognize the shariah as a private code for their Muslim minorities. In both cases, urban Muslim middle classes have all but abandoned the shariah and organize their private lives on the basis of the republican laws available to the non-Muslim minorities.
Nevertheless, the dual nature of the proposed Afghan law is likely to cause friction and may be used by radical elements to weaken the state.
The draft is partly designed to please the Americans. It borrows heavily from the U.S. Constitution, with a presidential system and a two-chamber legislature, with one modelled on the House of Representatives and the other on the Senate.
This causes at least two problems.
The first is that the Afghan draft ignores the federal structure of the U.S. government. Far from organizing Afghanistan as a federal republic, it emphasizes the powers of the central government in Kabul.
The second problem is that the Afghan people are not ready for the extreme partisanship of American politics. Unknown to European democracies, that level of partisanship leads to personal attacks, negative campaigns, commissions of enquiry and even lawsuits in the United States. In Afghanistan, it could lead to assassinations, gun battles and even civil war.
The American model, while a source of inspiration, is unsuitable for Afghanistan, where one either bows to the ruler or murders him. What Afghanistan needs is a system in which there is no need either to kiss the ruler's boots or to have his throat slit.
And this was precisely the goal of Afghanistan's two pre-communist constitutions, in 1923 and 1964. Both tried to divide power's mystique from its actual exercise. The mystique was represented by the king, who, provided he maintained his moral authority, could exercise immense power on behalf of the nation as a whole. The actual exercise of power was bestowed on a prime minister who, though named by the king, could do nothing without the advice and consent of the elected parliament.
This writer still believes that the Americans were wrong in vetoing the restoration of constitutional monarchy in Afghanistan. And a part of the proposed draft's weakness stems from the fact that it does not foresee a national institution that could stand above political, religious and ethnic factions to assure the endurance of the Afghan state.
As things stand, no politician looks likely to win the presidency with broad support among all the 18 ethnic factions that make up the Afghan mosaic. The current front-runner and Washington favourite, President Hamid Karzai, hopes to win by attracting enough support both from the Pushtuns, his own ethnic group, and the Tajiks, who dominate his administration. But such a Pushtun-Tajik coalition will be resented by the smaller communities, while the management of its internal contradictions would require all of Karzai's undoubted political talents.
Is it too late to amend the draft? If not, one could devolve more powers to the regions, and extend the authority of the directly elected chamber of the parliament. One could also imagine a bigger change: Provide for a ceremonial head of state to stand above partisan politics and ethnic considerations and act as an arbiter among rival parties and groups.
Even if none of that is done, the draft constitution must be welcome. It refers to the Universal Declaration of Human Rights as the new state's cornerstone. It cancels the gender apartheid under which Afghan women were shut out of most walks of life. It envisages regular elections and makes government accountable to the people, not to any metaphysical principle.
Two years ago, we had a bunch murderous fanatics who claimed that Afghanistan needed no constitution beyond the whims of the "emir al-momeneen" (Commander of the Faithful) Mullah Muhammad Omar, who represented divine power on Earth. The new draft acknowledges that all power belongs to the people.
And that, you may be sure, is a leap across centuries.
Amir Taheri is an Iranian journalist and author.; amirtaheri@benadorassociates.com
I'd much rather kiss Miss Afghanistan 2003 than the UN camel. She can feed her camel crackers in my tent anytime. ;-)
PS - Do the words UN and Human Rights used in the same sentence seem like an odd combination to you? Or is it just me?
btw, What kind of helis did you fly way back when? and how many holes did you collect in the birds you flew?
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