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Mariam Ghani
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Round-up of opinion on CLJ - part three
Includes commentary from legal, socialist and religious freedom advocates.

FindLaw.com The New Afghan Constitution Will It Respect Women's Rights? Will Its Mixture of Religion and Democracy Work? By MADHAVI SUNDER Jan. 15, 2004 Last week, headscarves and turbans took the place of powdered wigs as delegates to Afghanistan's Constitutional conventional approved a new Constitution. The charter, which embraces democracy, human rights, and equality for women, holds the promise of taking this hobbled nation out of the Dark Ages toward modernity. Indeed, the American ambassador to Afghanistan, Zalmay Khalilzad, called it "one of the most enlightened Constitutions in the Islamic world." Yet the old Enlightenment required the separation of church and state. And the new Afghan Constitution, in contrast, mixes democracy and religion, proclaiming an Islamic Republic of Afghanistan. Observers herald the new charter as a blueprint for democracy in the Muslim world, especially Iraq. In much of that world, secularism is not viewed as politically viable. Accordingly, the Afghan charter is being cheered as the next best thing -- on the theory that a religious democracy is better than no democracy at all. But is the new Afghan Constitution truly enlightened? In particular, should we worry that under this Constitution, women's rights will be given short shrift? Or should women embrace this Constitution as a new model for Islamic democracy? On that score, I think we can be optimistic, but should remain cautious. A Religious Democracy, Embodied by an Islamic Constitution Afghanistan's new Constitution is unabashedly Islamic. The first Article declares Afghanistan an "Islamic Republic." Islam is declared to be the official religion of the state. And the Constitution expressly bars any law "contrary to the beliefs and provisions of the sacred religion of Islam." Clearly the model is not that of the United States, where a judge can lose his job for hanging the Ten Commandments in his courthouse. In the Islamic Republic of Afghanistan, civil code must be consistent with religious code. A Strong Emphasis on Democracy and Human Rights At the same time, this Constitution is unflinchingly democratic and pro-human rights. The state is obliged "to create a prosperous and progressive society based on social justice," to "protect human rights," and to realize "democracy." The Constitution also creates a specific mechanism for enforcing these ideals. It requires the government to monitor human rights abuses through a newly established Independent Human Rights Commission of Afghanistan. How will human rights violations be defined? Again, the Constitution is specific. It expressly requires the state to "abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights." (Emphasis added.) Enforcing the Convention on the Elimination of Discrimination Against Women This is especially significant for women because Afghanistan acceded last year to the Convention on the Elimination of Discrimination Against Women (CEDAW). Thus, under the new Afghan Constitution, the Independent Human Rights Commission will be able to enforce CEDAW, among other "international conventions that Afghanistan has signed." Significantly, CEDAW prohibits sex discrimination in both public and private realms. (Ironically, for this very reason, the United States has still not ratified CEDAW.) Other Constitutional Provisions Affecting Women's Rights Importantly, the Afghan Constitution also declares women the equal of men under Afghan law, and commits the state to take some affirmative steps towards women's equality. For instance, the Constitution obligates the state to promote women's education. Perhaps most significantly, the Constitution adopts quotas for membership in Parliament, setting aside one quarter of the seats for women. (In another irony, soon the United States Congress, whose membership is currently less than fifteen percent female, will look much more like an old boy's club than the Afghani Parliament will.) The Constitution Leaves Open Some Tough Church/State Questions The good news, then, is that the Afghani Founders clearly believe that religion and rights can be reconciled. This, in itself, deals a sharp blow to fundamentalists who dispute such a claim. But practically speaking, the new Constitution offers little guidance for achieving this. The result is that most of the tough questions will be left to the future Afghan Supreme Court. What, for example, if husbands decide their wives should not work based on conservative interpretations of the Koran? Or what if fathers prohibit their daughters from going to school, or force them into marriage? Will such actions violate the equal rights guarantees under the Constitution, or be upheld as consistent with Islam? Under CEDAW, will these actions count as prohibited "private" discrimination? Or will there be a sphere of private action deemed to be too deeply private for the Constitution to reach? The charter mandates a unified educational curriculum "based on the provisions of the sacred religion of Islam." Will this be interpreted as an obligation to provide education to men and women equally, or as a license to discriminate? One provision upholds the interests of the family, calling for "the elimination of traditions contrary to the principles of the sacred religion of Islam." Would such traditions include women's right to work, or to an education? Or, more hopefully, would this require the elimination of oppressive cultural traditions that are inconsistent with the egalitarian aspirations of Islam? Again, the answers are anything but clear. The Crucial Role the Afghan Supreme Court Will Play The answers to many of these women's rights questions will turn in large part on who sits on the high court. The Afghan Constitution allows for judges to be trained in either civil or Islamic law. Either way, the way they may interpret the Constitution will be hard to predict. Judges trained in civil law might still offer fundamentalist interpretations, and judges trained in Islamic law may be progressive. Unfortunately, elsewhere in the world, similarly ambiguous Constitutions (or other mixed governmental systems) have not proven advantageous to women. Countries such as India and Nigeria, for example, are progressive on women's issues, but in practice allow for deviations from the equality principle. Discriminatory practices are justified, and may be upheld in court, on cultural or religious grounds. Thus, despite its Constitutional guarantees of gender equality, Nigeria recently underwent a long and painful episode where a woman was sentenced to death by stoning for adultery -- only to be saved at the last minute by a procedural ruling by a higher court. In Afghanistan, some find solace in the fact that the final charter avoids making any explicit reference to Shari'a, the traditional Islamic law that is often interpreted to discriminate against women. But women's groups say that it is still too soon to make too much of the omission. Disparagement of Female Constitutional Convention Delegates Meanwhile, if the treatment of women delegates to the three-week Constitutional convention is any indication, the calls for caution may be wise indeed. Women delegates lamented that fear and corruption surrounded the Constitutional process. And they repeatedly expressed concerns that their voices were being neither heard nor respected. A low point of the convention occurred when the chairman of the convention, Sibghatullah Mujaddedi -- who is considered a moderate -- reportedly told women delegates, "Don't try to put yourself on a level with men. Even God has not given you equal rights, because under his decision two women are counted as equal to one man." (Mujaddedi was referring to a contested provision of Islamic law that says that the testimony of two women is equivalent to that of one man in some cases.) Democratic Religion? A New Debate About the Meaning of Being Muslim In the end, though, all Constitutions are, without more, as Afghanistan's Hamid Karzai noted, just "a piece of paper." It is their interpretation over time and by new generations that gives them life. To that extent, perhaps the ambiguity on the question of "which Islam?" the Constitution embodies, or should embody, may be a good thing. Rather than proclaiming any one form of Islam as supreme, the new Constitution might be seen as an invitation to open up debate about what it means to be Muslim in Afghanistan today. Put another way, the future of religious democracy -- as represented by the Afghan Constitution -- just may turn on the acceptance of democratic religion. That is, the more democracy and debate we allow within religious communities -- allowing everyone, including women, to define religious law and identity -- the more representative Afghanistan's religious democracy will be. Over time, the people of Afghanistan should decide what laws are consistent with Islam by defining the people's Islam. This approach recognizes that Islam, too, like a Constitution, is subject to debate, interpretation, and change. The New Enlightenment: The Best Case Scenario for Afghanistan Call this, then, the New Enlightenment. The old Enlightenment demanded equality in the public sphere. But it left the private spheres of culture and religion in the Dark Ages of the ruthless imposition of power, and the triumph of unreason. The New Enlightenment goes the next mile, calling for enlightened approaches to cultural and religious identity, as well as to government. The core values of the Enlightenment -- reason, democracy, freedom of expression, and the call, in Kant's words, to "think for oneself" -- still remain. But in this New Enlightenment, they are also extended to the private spheres of culture and religion. An Islamic Model of Women's Rights It is becoming increasingly apparent that such movements for cultural reformation, or change from within, are crucial for attaining democracy throughout the modern world. The Nobel Committee recognized this when it awarded the 2003 Peace Prize to Shirin Ebadi. Ebadi is an Iranian woman who is a judge and law professor and who, since the Iranian Revolution, has been working within the framework of Islam to expand rights for women and children in her country. In recognizing Ebadi herself, the Nobel Committee also implicitly recognized the value of her approach. The 2003 Arab Human Development Report similarly calls for Arab countries to develop "an authentic, broadminded and enlightened Arab knowledge model. " Such a model, the Report stresses, must respect critical religious scholarship, activate interpretive religious jurisprudence, and perhaps most importantly, preserve "the right to differ in doctrines, religious schools and interpretations." The Constitution's Ambiguity on Free Speech/Free Exercise Issues To be sure, the realization of more democratic religion in Afghanistan's new religious democracy will turn on individuals' rights to dissent within their religion. Will these rights be recognized by religious institutions and figures? Will the government honor, protect, penalize, or be indifferent to their exercise? Under the U.S. Constitution, the Free Speech and Free Exercise clauses of the First Amendment prevent the government from punishing religious dissent. But on the other hand, the Establishment Clause also prohibits the government from protecting religious dissenters from expulsion or other punishments, as long as the expulsion does not violate the secular law. It also often prohibits courts from interpreting religious dictates to judge the validity of a given religious action, such as an expulsion; to interpret religious rules, courts have held, would too greatly "entangle" church and state. It is unclear what approach the Afghan Constitution will take on this issue. On the one hand, it provides for a right to profess a religion outside of the state religion of Islam -- creating its own limited version of a Free Exercise/Free Speech Clause. But on the other hand, the Constitution does not address rights to dissent within Islam. In sum, the Afghan Constitution is promising. It sets the stage for an historic, new, democratic era for Afghanistan, and possibly even more of the Muslim world. But even optimists must be cautious when it comes to the Constitution -- for it is the Afghan Supreme Court's interpretations that are likely to resolve its ambiguities, and set the tone. We can only hope the Court will recognize that to be truly successful, religious democracies -- such as the one the Afghan Constitution aspires to create -- must also encompass a right to democracy within religion. The truly hard work of laying the foundation for a new democracy through ongoing debate and dialogue is yet to come. Madhavi Sunder is Professor of Law at the University of California, Davis. A graduate of Stanford Law School and Harvard College, she specializes in women's international human rights and intellectual property.

US-imposed "democracy" in Afghanistan by: Mike Head 1/8/2004 WSWS.org After more than three weeks of cajoling, back-room haggling and standover tactics, the 502 largely unelected delegates to the United States-orchestrated loya jirga, or grand tribal council, in Afghanistan this week endorsed a constitution aimed at strengthening the crumbling position of Washington's handpicked interim president, Hamid Karzai. Following intense arm-twisting of faction leaders by US President George Bush's envoy and ambassador to Afghanistan, Zalmay Khalilzad, and UN special envoy Lakhdar Brahimi, the assembly-a huge tent full of representatives of warlords, mullahs and outright US stooges-rubber-stamped a constitution on January 4. While media reports presented the outcome as a triumph for democracy, the assembly was a travesty from start to finish. Karzai selected 50 of the delegates, while the various militia, religious and ethnic elites that have been complicit in the US-led military occupation, chose the others. Amid growing resistance to the puppet regime, they could only meet under armed guard. Even then, the proceedings were threatened by a series of rocket attacks on the site, including one last weekend. Perhaps the most revealing moment came when Malalai Joya, a 26-year-old female social worker from the rural province of Farah, stood up to condemn most of the jirga's committee chairmen as criminals. Instead of being given influential positions, she declared, they should be tried for their crimes. Joya was initially thrown out of the meeting, then allowed to remain and is now under UN protection from death threats. The crimes to which she referred were the widespread rocket shellings, torture, rape and mass killings of civilians committed by Islamic fundamentalist warlords-mujahideen, or holy warriors-from 1992 to 1996 before they were ousted by the Taliban extremists. The US and its allies are today relying upon the same thugs to rule Afghanistan. One of the most prominent delegates was General Abdul Rashid Dostum, whose Northern Alliance forces massacred thousands of Taliban prisoners in the desert near Mazar-i-Sharif during the US invasion in November 2001. So anti-democratic was the entire process that no vote was even taken on the final version of the document. Instead, at the urging of the chairman, most of those present simply stood briefly to signify their acceptance. Just three days earlier, the meeting had been suspended in disarray when some 40 percent of the delegates boycotted the first and only vote at the gathering. Led by former president Burhanuddin Rabbani, the coalition of minority ethnic factions, including his Tajik clan, Uzbeks and Hazaras, called for the appointment of a prime minister to restrict the sweeping powers allocated to the president. They also demanded official recognition of minority languages and called for a ban on ministers holding dual citizenship. The latter provision was primarily directed at those in Karzai's camp who are US citizens. Once Khalilzad and Brahimi stepped in to lay down the law, Rabbani and his allies quickly acceded to an autocratic presidency. The president will rule without a prime minister. He will have the power to appoint and dismiss ministers, key officials, judges and military, police and intelligence chiefs, as well as one-third of the upper house of the national assembly. He will be the commander-in-chief of the armed forces and can declare states of emergency for the whole or parts of the country. In return, Karzai and his backers made minor concessions. They added a second vice president to represent minority interests and gave the national assembly the right to approve some presidential appointments. Alongside the two official languages, Pashto (spoken by ethnic Pashtuns) and Dari (Tajik), other languages will be recognised in regions where they are spoken by a majority of people. Apparently, Karzai agreed to learn Uzbek. There will no ban on dual citizenship, but the national assembly can reject individual officials who hold foreign passports. Karzai also struck a deal with hard-line Islamic fundamentalists to include a clause prohibiting any law from offending Islam. This means that, despite the lip service paid by the constitution to democratic rights, including equal status for women, reactionary Islamic precepts will prevail. Karzai had already appointed Fazal Hadi Shinwari as chief justice of the Supreme Court. In violation of the constitution, Shinwari is over the age limit and has training only in religious, not secular, law. He is an ally of the pro-Wahhabi, Saudi-backed fundamentalist leader Ustad Abdul Rasul Sayyaf, who was a committee chairman in the loya jirga. Shinwari has packed the Supreme Court with sympathetic mullahs, called for Taliban-style punishments and brought back the Taliban's dreaded Ministry for the Promotion of Virtue and Prevention of Vice, renamed the Ministry of Haj and Religious Affairs. It deploys squads to stop public displays of "un-Islamic" behaviour among Afghan women. Presidential elections are meant to be held under the new constitution by June, to be followed by assembly elections. But the deteriorating economic and security situation in the country makes that schedule unlikely. UN envoy Brahimi has already told the New York Times that assembly elections would be "well nigh impossible" because the threat of Taliban insurgents make large parts of the country inaccessible. For his part, Rabbani has made it plain that the conflicts that wracked the loya jirga have by no means receded. He declared that the backroom dictates issued in Kabul had only damaged the administration's credibility and warned that the strong presidential system could "push Afghanistan to a dictatorship". Despite the deeply reactionary character of the gathering in Kabul, UN secretary-general Kofi Annan praised the outcome as an historic achievement. President Bush welcomed the constitution, declaring that "a democratic Afghanistan will serve the interests and just aspirations of all the Afghan people". The major media outlets, including the erstwhile liberal press, dutifully echoed these remarks. The New York Times editorial called the constitution "enlightened" and said the Bush administration was "justifiably thrilled by the outcome". It endorsed ongoing US military control of the country, "to help provide the political support and military security to make presidential and parliamentary elections possible". No democracy To even speak of democracy in these circumstances is farcical. Washington has illegally conquered one of the most impoverished and ruined countries on earth, overturned its government and joined hands with notorious butchers to repress and intimidate the population. Around 12,000 US-led combat troops remain in Afghanistan, terrorising the population in the name of hunting down Taliban and Al Qaeda supporters. They are accompanied by 5,700 NATO "peacekeepers," which are mainly propping up the Karzai administration in the capital. Even the timetable for elections in Afghanistan is driven by the Bush administration's immediate domestic political considerations. It badly needs a symbolic show of success for its "war on terror" in the lead-up to the US presidential election in November. It is proceeding with its characteristic mixture of cynicism and short-sightedness. All that matters in Afghanistan is a public relations victory, regardless of the completely catastrophic reality. Many parts of the country are no longer safe for allied troops, or for that matter, UN officials, aid workers and ordinary civilians. Mounting guerilla attacks have forced international aid agencies to withdraw to Kabul, halting even elementary welfare efforts. On December 18, the World Food Program admitted that its food distribution program had been severely affected by the breakdown in security. The deteriorating situation was highlighted on January 6, when a truck bomb blast near a military base in the southern city of Kandahar killed at least 16 people and wounded 52, many of them school children. Despite the indiscrim inate terror employed by the insurgents, the methods being employed by the US seem to be simply increasing support for the Taliban fundamentalists. Heavy-handed repression by US troops is intensifying popular opposition and resistance to the occupation, particularly in the southern and eastern Pashtun regions. Last month, the US military launched its largest operations in Afghanistan since the overthrow of the Taliban, aimed at tracking down anti-government forces and quelling wider unrest in the lead-up to the loya jirga. Karzai's fiefdom is largely confined to Kabul, where US troops guard him around the clock. Elsewhere, private armies roam, with a total of half a million men under arms, some linked to drug barons and others to members of Karzai's government. There is no prospect that even the semblance of a democratic regime will emerge in Afghanistan under these hellish and neo-colonial conditions. Democracy is only possible through a genuine popular revolution, spearheaded by the working class, throughout the Middle East and Central Asia. Only such a movement could liberate the region from decades of great power domination and overcome its legacy of economic backwardness, warlordism and theocratic oppression.

Paktribune.com Afghan Constitution Provides Little Protection for Religion Saturday January 17, 2004 (1432 PST) LONDON, January 18 (Online): When the Afghanistan constitutional assembly, or loya jirga, decided on a new constitution for Afghanistan, everyone from the NY Times to President Bush applauded the document for outlining a Western-style democracy for the country. However, some religious freedom watchers were not so pleased, and say it may provide the basis for a government only slightly less repressive than the Taliban. The constitution, which isn't yet available online, sets up an elected bicameral legislature and a strong presidency, but it was criticized in its draft form by the United States Commission on International Religious Freedom. In February and April 2003 letters to President Bush, the commission warned of "troubling signs in the human rights situation in Afghanistan, including abuses against women and girls, torture and other human rights abuses committed by official agencies with apparent impunity, and public statements by the Afghan Chief Justice reminiscent of the Taliban period, including charging political opponents with blasphemy." In an October New York Times op-ed, members of the commission warned that the drafted constitution "does not yet provide for crucial human rights protections, including freedom of thought, conscience and religion." Because the draft enshrined Shari'ah (Islamic law), the commission worried that "Afghan citizens would continue to be in the hands of judges educated in Islamic law, rather than in civil law." Now that the constitution has been ratified, religious freedom watchers say they are pleased that some elements of the constitution have been improved, but overall it leaves much to be desired— especially if Afghanistan is to be a model for an Iraqi constitution. Reports that the constitution declares that "no law can be contrary to the beliefs and provisions of the sacred religion of Islam" trouble Nina Shea, director of the Center for Religious Freedom at Freedom House. "That means to me that Islamic law is the supreme law of the land," she said. "The provisions of Islam are left undefined, and the interpreter of what they are is left unidentified." Though the final draft removed references to Shari'ah, the restriction (called a repugnancy clause) may be a cloak for Islamic law. Shea said, "It's not going to be the secularists who claim the right to interpret. It's going to be the hard line Shari'ah jurists." Already, Shea said, Afghanistan's Chief Justice—the country's highest Islamic jurist—has ordered the execution of two journalists who questioned the compatibility of Shari'ah with democracy, and a female member of the interim administration has been charged with blasphemy. Shea said the U.S.-supported Karzai government has defended these actions and others. Jeff King, president of International Christian Concern, shares Shea's concerns. "The proposal doesn't contain any provisions separating the mosque from the state or ensuring equal rights among the religious groups," he said. "They're running the risk of establishing a theocracy." Afghanistan's ambassador to France denied the constitution set up a religious government. "There are always ways to abuse Islam," Zalmai Haquani told reporters. "If, by some great misfortune, Afghanistan were again under the Taliban, they wouldn't look at the constitution," Haquani said. Instead, said Haquani, Afghan jurists will use the Hanafi school of Islamic jurisprudence. "Hanafi is the most liberal jurisprudence in Islam," he told the news agency. "It allows a very wide range of interpretation according to where the law is applied." That's part of the problem, says Shea. Using any single interpretation of Islamic law inhibits religious freedom, which must be individual, she said. Simply because Muslims can attend a mosque does not mean they are free to worship however they choose. "It's the right of an individual to interpret the religion the way the individual wants to and not be put to death for blasphemy," she said. "If you don't want to go to prayers five times a day, if you don't want to go to church on Sunday, you should be allowed to interpret it the way you want." Robert Seiple, president and founder of the Institute for Global Engagement, believes we should be grateful for the freedoms the constitution does allow and be vigilant to make sure the country implements them. "It's doubly important to watch how this unfolds, and to make sure that there is no additional inkling of what we experienced under the Taliban." The constitution says that followers of other religions have the freedom to practice, but religious liberty watchdogs say context is key. Any non-Islamic religious practices, the document says, must be in accord with all other laws. "That means anyone could pass a law that says, no you don't have a right to exercise your faith," says Shea. "All the rights in this constitution are couched in that language." Though the constitution has significant problems, Seiple believes they can be addressed by continuing engagement with Afghanistan. "It's never a problem of: Do the words exist?" said Seiple, former U.S. Ambassador at Large for International Religious Freedom. "We certainly have enough laws on the books. The question really is, Will they follow them?" The U.S. ambassador to Afghanistan, Zalmay Khalilzad, told The Washington Times that Afghans will not be forced to practice Islam— something proposed by some in the loya jirga. "But the majority of the Afghans, as reflected during the loya jirga, seek [a] moderate interpretation of Islam," he said. "They spoke forcefully and courageously in support of that and challenged extremist interpretations of Islam—and rejected it." King disagrees. "It's a radical Muslim country whether the Taliban is in there or not. It's still a radical Muslim country with a fundamentalist mindset." Despite its radical tendencies, Seiple notes, "the fact that we have a constitution two years after a major conflict is pretty amazing. Though the constitution follows Islamic law, it is not the hard edge of Shari'ah." Shea, a member of the U.S. Commission on International Religious Freedom, says the Bush administration did not push hard enough for language beyond an allowance of religious exercise. "The U.S. government seemed to think that if you could go to church you were free," she said. "There was no concept that religious freedom means educating your children in the faith or being able to possess religious literature, Bibles, being able to designate your leaders, being able to meet with co-religionists, being able to carry out charities, being able to raise money, or to take collections." The U.S. government should be given credit, said Seiple, that the constitution has major improvements over its draft version. King agrees that the flawed constitution is a hopeful step. "You look at where it came from and it's definitely a step in the right direction," he said. "They put women forward. At least on paper they made them equal citizens. They included them in the legislative body. And religious freedom doesn't exist in a vacuum—it's part of a human rights picture." But even these gains may be temporary, says Shea. "[The constitution] says equality for women, but someone is going to have to interpret that in light of the provisions of Islam, which say that women have half the weight as men. Women's testimony in court has half the weight as a man's. A woman's life in a murder case is worth half the blood money as a man's. If you have an incorporation of the provisions of Islam and the incorporations of [human] rights, what prevails?" The U.S. government's approval of the Afghan constitution will have implications far beyond Afghanistan, warns Shea. If the U.S. is willing to set up an Islamic state in Afghanistan, it signals its willingness to do the same in Iraq—something all the more problematic now that spreading democracy, not finding weapons of mass destruction, is the declared rationale for U.S. invasion and occupation. "It's going to be tragic if we influence [the region] by creating an Islamic state, sending the signal that the U.S. is willing to establish and support and tolerate a repressive Islamic state," she says. However, Seiple believes that the problems with the Afghan constitution have encouraged more deliberation over Iraq's. "One of the reasons that people were jumping into the fray early on was because the Afghan constitution was so bad in terms of human rights." He said the State Department and the Pentagon are investing a great deal in Iraq's constitution. "History is being written, you only have one chance to get this right. I think you will see a great deal of involvement behind the scenes."


Posted By: mariam   September 30th 2004, 2004 3:34 PM



Kabul: Partial Reconstructions is an installation and public dialogue project that explores the multiple meanings and resonances of the idea of reconstruction -- as both process and metaphor -- in the context of present-day Kabul.

www.kabul-reconstructions.net is an online discussion forum, information resource, and medium for the communication of questions and answers about the reconstruction between people inside and outside the city of Kabul itself.