In the following essay, Amy Phillips writes that the rights of women, in addition to religious minorities, will not be treated as equal to others' rights under post-war Afghanistan's planned "democratic" constitution.

A version of this essay appeared at Ms Phillips' Web site, The Fifty Minute Hour.

-- Tim Machesney

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Any Creed You Want, So Long As It Is Islam

By Amy Phillips

"There are some things in which you cannot make women equal, such as in
marriage, divorce, testifying in court, inheritance, and even leadership
of the nation."

Those are the words of an anonymous member of the committee that drafted Afghanistan's recently unveiled draft constitution (PDF). The constitution has been designed to combine democratic principles with the demands of powerful religious elements inside the country, trying to create the world's first Islamic democracy. It declares both that Afghanistan "is an Islamic Republic," where "no law can be contrary to the sacred religion of Islam," and that the government should be "based on the people's will and democracy." The question is, what happens when those two principles come into conflict?

During the war in Afghanistan, Secretary of State Colin Powell declared that once the Taliban fell, "the rights of the women in Afghanistan will not be negotiable." However, it is clear that his promise has been broken, since the rights of women were among the most negotiated issues of the constitutional debate. The committee was keenly aware of threats by warlords who still control much of the country that they would not be subject to a government that did not acknowledge the supremacy of their religion, and they knew that the country would not survive with such divisiveness. For that reason, they made several compromises that threaten the freedom of Afghanistan's beleaguered female population.

First and foremost, the constitution does not acknowledge women. Although rights and privileges are extended to all citizens, it is not explicit that women are citizens, and in fact, many Muslim extremists in the nation do not consider them citizens. Moreover, the constitution does not repeal laws restricting women's freedom of movement, employment, education, and power in their family lives. In September of this year, Women for Afghan Women organized a conference of 45 diverse women leaders from across Afghanistan. There, they drafted the Afghan Women's Bill of Rights, which demands that the constitution recognize the full and equal rights of Afghan women. Their demands included a bans on discrimination against women, forced and underage marriages, and the trading of unwilling women between families. They insisted that any constitution must recognize full rights of marriage, divorce, employment, education, voting, inheritance, and property. None of those provisions exists in this constitution.

Women are not the only at-risk group if the government of Afghanistan is established under this constitution. Because of the explicit supremacy of Islamic law, any groups whose aims may be contrary to the aims of religious leaders have reason to fear. As Preeta Bansal, a member of the U.S. Commission on International Religious Freedom stated, "You have a situation where individual human-rights guarantees can be trumped by ordinary legislation, and that legislation is invalid unless it accords with specific teachings of Islam." For example, while the constitution recognizes the rights of non-Muslims "to perform their religious ceremonies within the limits of the provisions of law," it does not mandate freedom of religion and religious tolerance. So while Christians are free to perform weddings, they may be barred from talking about their religious beliefs and can be forced by the state to endure Muslim rituals at public gatherings. There are also no provisions to protect non-Muslims from harassment and attempts to convert them, nor do they have a delineated right to raise their children in their faith. In fact, the constitution calls for the state to adopt "necessary measures to ensure physical and psychological well being of family, especially of child and mother, upbringing of children and the elimination of traditions contrary to the principles of sacred religion of Islam." Such traditions could be held by the courts to include baptism of children, infant bris ceremonies, and other non-Muslim family rituals.

Political groups are also denied protection under the constitution. While "the citizens of Afghanistan have the right to form political parties," the government also has the right to suppress any party "based on ethnicity, language, religion and region." In fact, the state has total control over which political parties are allowed to exist, and can ban a political party if they believe its aims to be "contrary to the principles of sacred religion of Islam." That means no political parties demanding total equality for women, no "Christian Rights Party," and no "Keep Stores Open on Friday" party. Under such broad provisions, the ruling government could ban virtually any party it didn't like. If the state declares that its laws are identical with Islamic law, it could ban any opposition at all.

Even if opposition political parties are allowed to exist, their candidates may be ineligible to hold public office. Government ministers, before taking office, must swear an oath "in the name of God Almighty to support the provisions of the sacred religion of Islam... and consider God Almighty present in performing all my responsibilities." The very presence of an oath to God excludes some adherents to religions which ban the swearing of oaths, but the specific wording of the oath also rules out atheist or polytheist government officials.

The court system of Afghanistan will be, as it was under the Taliban, explicitly religious, with a charge to rule on issues before them "within the limits of this Constitution in accord with the Hanafi jurisprudence." According to that school of Sunni Islam, "a woman has almost no grounds for obtaining a divorce provided her husband has consummated the marriage. She cannot be divorced from him even if he fails to support her, abuses her, or is imprisoned for life." Some forms of Hanafi law also say that a woman's legal testimony should have only half of the weight of a man's testimony. Hanafi is considered to be a form of Sharia, the brutal law imposed by the Taliban, and although it is unlikely that the new government would be that oppressive, the mere fact that the constitution endorses this form of law is highly suspect.

Other disturbing provisions of the proposed constitution include:

* Mandatory taxation which may be used for "development of religious education, organizing and improving the conditions of mosques, madrasas and religious centers."

* A provision to prevent forced labor contains an exception "in times of war, calamity, and other situations threatening lives and public welfare."

* Although the constitution does not permit the holding of public office by those who have been convicted of crimes against humanity, most of the high-ranking members of the Taliban who carried out atrocities in Afghanistan have never been tried or convicted. Any of them would still be eligible for public office, and they have wide public support in many regions. This means that the legislature could become controlled by extremist Muslims who desire to impose Sharia law.

* Supreme Court members do not have to have higher education in law if they are educated in "Islamic jurisprudence."

* The constitution mandates different laws for different people based on religion. "Courts will apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law."

* Not only will Afghanistan be an Islamic republic, but it will be an Islamic republic in perpetuity, regardless of the religious beliefs of the Afghan people, because the constitution does not allow amendments to "the provisions of adherence to the fundamentals of the sacred religion of Islam..."

Ultimately, the problem with this constitution is the same problem that has kept constitutional scholars in business in nearly every country that has ever had a constitution: it is extremely vague, and leaves much up to interpretation by the courts and the government. In most countries, that ambiguity is advantageous, because it allows the country to grow and change to meet the needs of its people. However, when the firmest principle of the constitution is that all concerns, including the rights of the people, are subject to religious law, room for interpretation could mean room to interpret the constitution as demanding adherence to draconian religious rules. The legislative and judicial branches of government are likely to contain a Muslim majority, and armed with a mandate to enforce "the sacred religion of Islam," they have the power to take away any of the rights of the people as they see fit.

This constitution outlines a republic in the form of the United States, with a President, a legislature, a court system, and federalism to allow for some local control. However, in the hands of men who believe that their highest duty is to God, and that their duty to respect the rights of the citizenry is secondary, the broad strokes of republican government are not enough. Islam is not incommensurable with freedom and democracy. But a state which declares that the people may not decide the destiny of their nation if religious leaders don't approve will likely not flourish into what any of us would consider a free society.

The people of Afghanistan deserve better; they deserve a chance to be free.