Since the draft became public on November 3, groups advocating different strategies have highlighted different elements in it. Supporters of United States President George W. Bush have emphasized its commitment to United Nations accords on human rights and its emphasis on Afghanistan as an "independent, unitary and indivisible state." These prioritize stability and central government. But they do so in an explicitly religious context. As many observers expected it would, the Constitution asserts Islam as the state religion and bans any law "contrary to the sacred religion." Optimists take heart that Article Two stipulates: "followers of other religions are free to perform their religious ceremonies within the limits of the provisions of law." But the document's language leaves room, advocates say, for suppression of speech and crimes against women.
The constitution, which a grand tribal council called a Loya Jirga is set to review and ratify in mid-December, seeks a fine balance. While expressing the primacy of Islam, it obliges the state to "create a prosperous and progressive society based on social justice." Ethnic harmony and "balanced development in all areas of the country" emerge as stated goals. Can these goals arrive when different Afghans view Islam and its legal applications in distinct ways?
Muslim scholars have long debated how democratic codes can conform to Islamic law. [For background see the EurasiaNert insight archive]. Some say that Islam tolerates any political system that respects human dignity. [For background see the EurasiaNet Insight archive].Fundamentalists argue that an Islamic state has to impose limits on women's freedom, based on a strict reading of the Koran. The Afghan draft constitution requires that women comprise at least one-sixth of the bicameral legislature's upper house. But some say it leaves the door open for fundamentalist practices.
The United States Commission on International Religious Freedom, an independent advisory body to the American government, voiced strong objections to the draft. Members noted that the draft's second chapter allows "provisions of law" to override the "natural right" to life. They also object to language letting judges make decisions with Islamic law as a guide. Such language, commissioners say, could "allow for a religious orthodoxy to be officially imposed, stifling dissent within the Islamic tradition." As a remedy, the commission urges an amendment asserting individual freedom of conscience and belief. This would be a much broader freedom than the freedom to conduct non-Muslim religious ceremonies (which themselves would be subject to national law).
The draft constitution does hedge against some fundamentalist tendencies. It insists that punishment for crimes must not transfer from one party to another, prohibits torture, and allows accused parties to hire lawyers. But the judges and lawyers animating these principles will work from unclear doctrine. The draft obliges the state to develop a "unified educational curriculum based on the provisions of ...Islam, national culture," and to reflect teachings of "Islamic sects." Opinions out of favor with such teaching may become the basis for punishment. While the draft stipulates that "every Afghan has the right to print or publish topics," it does not bar the state from tightly controlling media outlets.
The Gender and Law Working Group, an international body whose chairperson is State Minister of Women's Affairs Mahbuba Hoquqmal, has pointed out other potentially troublesome gaps. For instance, while the document asserts plainly and optimistically that "the state prevents all types of terrorist activities [and] production and smuggling of narcotics," it leaves out a blanket prohibition of human trafficking. The Working Group, in comments on the draft, proposes adding this prohibition. It also suggests obliging the state to provide prenatal and neonatal care and inserting language throughout asserting women's equality.
The structure of government, as laid out in the constitution, calls for broad and multiethnic representation. A President must have the majority of votes, which can arrive via a runoff of the top two candidates in a field. Presidents should be Muslims, citizens, "born of Afghan parents" and at least 40 years old. They cannot serve more than two terms. The president works with a bicameral legislature. The Wolesi Jirga (House of People) consists of 220-250 directly elected delegates; Meshrano Jirga (House of Elders) consists of appointees from provincial councils, from district councils, and from the president's list. Women must make half the pool of presidential appointees. Legislators have administrative say-so and can ratify treaties. The lower house can override vetoes.
The draft acknowledges Afghanistan's violent history. It allows the president to declare a state of emergency for up to two months, during which he can transfer some functions of the National Assembly to the government. If a national emergency occurs at the end of his term, he can hold onto power (and extra, emergency powers) for up to four months pending another Loya Jirga.
None of these powers will necessarily mean much if Afghanistan lacks a strong central authority. Security and warlordism remain major concerns for the country. Foreign Minister Abdullah Abdullah, who spoke at the Carnegie Endowment for International Peace on November 13, said the constitutional process could dispel the "perception of Afghanistan as [consisting of] ethnically divided groups that will go on fighting forever." Afghanistan needs upgrades in security before that question, and questions about the constitution's intent, are likely to undergo wide debate.