Fingers Crossed on Afghan Constitution

Daily Times, Lahore
January 28, 2004



Afghanistan’s president, Hamid Karzai, has signed the agreed version of the constitution of Afghanistan comprising 12 chapters and 162 articles. When he did so, standing beside him were the old King, Zahir Shah, and the chief of the UN forces in Afghanistan. That was symbolic. Now the country is supposed to move to legal normalcy with the promise that a democratic order will be initiated in Afghanistan. The constitution is bicameral, with a presidency that has considerable leeway in conducting the affairs of the state.

The uncomfortable fact is that Afghanistan has to pass through a lot of ‘history’ yet to reach the level of general acceptance of the principles contained in the constitution. History clings to Afghanistan more firmly than to other Muslim states because its tribal regions were never properly introduced to modern times before they fell under the control of Afghan and Wahhabi upholders of fundamentalist Islam. However, some of the problems that the Afghans will face with the constitution are shared with the rest of the Islamic world: how to reconcile law with the edicts of Islam as understood and interpreted by a ‘taqleedi’ clergy which is not without the physical power to destabilise the state.

In particular, the article that decrees that women would be deemed equal to men in the eyes of the law will be undermined by the provision that says that ‘no law would be contrary to the beliefs and provisions of divine and sacred religion of Islam’. This is especially feared because the draft constitution originally contained the more liberal phrase ‘principles of Islam’ rather than ‘beliefs and provisions of Islam’ and was changed after much haggling at the Loya Jirga.

Clearly, Afghanistan will soon go into convulsions about democracy and what it means in the light of what the Muslims think of Islam. The judiciary, unless it is manned by enlightened individuals, is likely to reproduce the version of Islam introduced by the Taliban and throw women back into the same inferno that the mullahs did after conquering Kabul. A glimpse was already available after the endorsement of the constitution by the Loya Jirga. Ten days after the passage of Afghanistan’s new constitution, the Supreme Court of Afghanistan violated the new constitution’s word and spirit. Acting ‘suo motu’, and basing its decision on no existing law, the court declared on January 14 that a performance by the Afghan pop singer Salma on Kabul television was un-Islamic and therefore illegal. “We are opposed to women singing and dancing as a whole and it has to be stopped,” said the deputy chief justice, Fazl Ahmad Manawi. Even though state television has refused to obey, the court’s ruling points to threats faced by democracy in Afghanistan. Therefore, like Pakistan, the judiciary is likely to interpret the provisions of the constitution in such a way that rights given with one hand may be taken away by the other.

Unfortunately, President Karzai himself is partly responsible for this problem. On the one hand, he is on record as saying that the Taliban creed had come from Pakistan and was not native to his country. Yet he has chosen to retain the chief justice of the Supreme Court, Maulavi Fazl Hadi Shinwari, an Islamic fundamentalist and former head of a religious seminary in Peshawar, who had been chosen for the job by an earlier provisional president, Burhanuddin Rabbani. Last year, judge Shinwari tried to ban cable television and coeducation in Afghanistan. He has put scores of unqualified mullahs on benches at all levels, and has created a ‘fatwa council’ in the Supreme Court to issue religious edicts. This fatwa council is clearly a throwback to the Taliban order and stems from the idea of contingent lawmaking contained in the principle of ‘amr and nahi’ as mentioned in the Hisba Act of the NWFP in Pakistan.

In Pakistan, while the NWFP strives to enforce the Hisba Act, a national commission for the rights of women has just recommended that Islamic punishments under ‘hudood’ may be abolished to check injustice done to women in the country. There is no such hopeful ambiguity in Afghanistan. Therefore we must keep our fingers crossed. *

Will Shehbaz Sharif ride again?

A refurbished Shehbaz Sharif has said in London that he is readying to return to Pakistan in the near future even if it means risking his life. It appears that this time around he is serious. The problem is that he was dead serious last time too while in the United States. He also tended in the beginning to set himself apart from his elder brother and his politics, which convinced some circles here that he could be coming back with some kind of ‘understanding’ with the establishment in Islamabad.

Shehbaz Sharif was indeed different from his brother — more pragmatic, result-oriented and definitely non-ideological — and was liked for that reason by people of all political stripes. He was not in favour of taking on General Pervez Musharraf and was not a part of the 15th Amendment imbroglio. But if he returns at this juncture he may have to stand at the head of all kinds of wrong political agitations going against his grain. The establishment too is less willing to give positive signals this time. Certainly, there is some ambiguity in Islamabad about how to deal with him. On the one hand, General Musharraf is on record as saying that the Sharifs left happily of their own accord on the basis of a deal and that therefore they cannot return to Pakistan. On the other hand, the prime minister and information minister have been saying that Shehbaz Sharif is welcome to return as a free man and face the cases against him.

This ambiguity is unnecessary. Mr Shehbaz Sharif should be allowed to return and re-establish his political credentials.

© Daily Times

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