That is a finding of the International Crisis Group (ICG), a Brussels-based think tank that has been studying the problems facing Afghanistan as it tries to draft a new constitution.
The ICG says rebuilding the justice system needs to be raised higher on Afghanistan's political agenda. It also is recommending the retirement of the current Afghan Supreme Court chief, Mawlavi Fazl Hadi Shinwari, on grounds that he does not meet the legal requirements on age and education.
John Sifton, an Afghan specialist and attorney working for the US-based group Human Rights Watch, told RFE/RL recently that Islamic fundamentalists in the country are trying to hijack the reform process laid out in the Bonn accords of 2001.
"Islamic fundamentalists are not just trying to have their voices heard in the debates that are going on about education and about the constitution. They are actually imposing themselves on the political scene in an attempt to become very powerful and take over the political apparatus of Afghanistan. That's cause for concern. We don't think Afghanistan as a multiethnic, multilinguistic and multidenominational country can have a theocracy period."
Two of the most powerful Islamic fundamentalists in Afghanistan Jamiat-i-Islami leader Burhanuddin Rabbani and Itihad-i-Islami leader Abdul Rasul Sayyaf are not members of Karzai's Transitional Authority. But they appear to be wielding significant power over the process of drafting a new Afghan Constitution through their representatives in the government, in the constitutional committees, and within the Supreme Court.
RFE/RL regional analyst Amin Tarzi, who specializes in Afghan constitutional law, notes that both Rabbani and Sayyaf fought against the Taliban. But both, he says, still want to see a conservative interpretation of Sharia law incorporated into the next Afghan Constitution:
"Mr. Sayyaf is the head of one of the most strict Islamist parties in Afghanistan. Granted, they are allies of Mr. Rabbani. And Mr. Rabbani himself is a very strict Islamist. These groups, these parties, believe in the strict implementation of the Sharia i.e., an Islamic state. And they are [in power] right now because they were part of the winning Northern Alliance. Mr. Rabbani's group, Mr. Sayaf's group, they believe in this. They fought for this."
Afghan Chief Justice Shinwari is a supporter of Sayyaf and a member of his Itihad-i-Islami party.
The International Crisis Group is accusing Shinwari of stacking the Supreme Court with political allies since his December 2001 appointment by expanding the number of Supreme Court judges from nine to 137.
Of the 36 judges whose qualifications are known, including Shinwari, the ICG says none has a degree in secular law as required by the current law of the land an amended version of the 1964 Afghan Constitution. The ICG also notes that none of the judges is a woman. Finally, the ICG complains that Shinwari is in his 80s, even though the 1964 constitution says the chief justice must be younger than 60.
The ICG report says: "Shinwari's actions, together with the re-emergence of a ministry to promote Islamic virtue, have added to fears that the judicial system has been taken over by hard-liners before the Afghan people have had a chance to express their will in a democratic process."
In a recent interview with RFE/RL, Shinwari said he would be willing to resign if the Afghan people reject his decrees on what constitutes violations of Islamic law.
Meanwhile, RFE/RL's Tarzi says the division between the moderates and religious conservatives in Afghanistan goes deeper than issues like the controversial bans on cable television that Shinwari has decreed during the past month.
Tarzi said those divisions are hampering the work of three committees set up in compliance with the Bonn accord to help create a new constitution the Constitutional Drafting Commission, the Judiciary Commission, and the Afghan Human Rights Commission. Tarzi explains: "What was envisaged in Bonn was that these three committees would work together in unison to form the constitution [that] the Constitutional Drafting Committee would consult, on a regular basis, with the other two commissions. Unfortunately, that has not happened. Specifically, the relationship between the Judiciary Committee and the Constitutional Committee has not been very good."
Tarzi continues: "There are two levels of problems. One is on the level of donors and supporters i.e., the United Nations and NGOs. There seems to be a turf war, and they don't talk to each other. The second issue has to do with the Afghan personalities within [the judiciary and constitutional drafting committee] and specifically on the leadership level. They seem to represent two different trains of thought. They are not talking to each other. They are not even making demands of each other. So there is basically not a concerted effort to put them together."
As for the third committee, Tarzi said it has a good record of trying to raise issues as part of the constitutional debate. But he said it has limitations of its own:
"The third committee is the Human Rights Commission. Although they have been consulted, their political power and their personal power is not as strong as the other two commissions. So while they are being listened to, it will be seen when the draft constitution comes out whether it will be just lip service to human rights or if the ideas this commission has will be incorporated."
Tarzi says the poor coordination between the commissions, as well as the lack of transparency so far in the process of drafting the constitution, is raising doubts in the minds of ordinary Afghans about whether a new constitution will help bring stability and peace or merely further entrench the power and interests of certain political factions: "[They must] include the public in the debate [about the draft constitution] so that people feel it is their document when it comes out. When that is not happening, and you see that they are all working in their own little corners, the doubts are there. Unless there is this interaction between these groups, the constitution will not be an inclusive document. You have to have the people of the area involved."
And Tarzi stressed that it is not enough for the Afghan people to be presented with a draft constitution as a fait accompli that gets rubberstamp approval from the Constitutional Loya Jirga that is due, under the Bonn accords, to take place by the end of this year. He says the entire process of drafting the constitution, as well as approving it as the law of the land, needs to be more open than it has been so far.
"It has to be explained today," Tarzi said. "Is it going to be happening within the local level? Village level? Within the provincial level? If the provincial level, how? Because in most provinces, there are warlords in control. How can the central government ensure that the people in that province, all the people, all ethnicities, all the different factions, are represented in whatever mechanism they have? And in the so-called Constitutional Loya Jirga, how would the people be chosen for it?"
The ICG report says that so far the three committees have achieved little. It notes that the members of a first Judicial Commission were linked either to ministries or to the Supreme Court. Thus, it became bogged down in bureaucratic and political rivalries and was disbanded after just three months.
It says the current Judicial Commission, appointed last November, appears to be more independent. But it started with an ill-defined mandate and has been handicapped by the fact that several critical laws were drafted or adopted in the intervening months when there was no Judicial Commission.
The ICG concludes that the United Nations and donor countries need to provide immediate technical and financial support to ensure that Afghanistan develops a legal system that protects all of its people and reduces the risk of a return to conflict.