The Missing Link

March 28, 2006

Afghanistan's Constitution

Andrew C. McCarthy is pretty unhappy with Afghanistan's constitution:

Here’s a riddle: What begins with words “In the Name of God, the Merciful, the Compassionate,� a formal Islamic salutation also commonly used by militants in their warnings, fatwas, and claims of responsibility regarding terrorist acts?

What extols the virtues of “rightful jehad� (also known as jihad) in its very first sentence?

What in its first article declares its sovereignty to be an “Islamic Republic,� and in its second installs Islam as the official “religion of the state�?

What, in its third article announces to the world that, within the territory it governs, “no law can be contrary to the beliefs and provisions of the sacred religion of Islam�?

What sets the national calendar by Mohammed’s historic journeys, requires the promotion of religious education, and even mandates that its national anthem must contain the battle cry “Allahu Akbar� (God is great!), most familiar to Westerners in recent times as the triumphant invocation of terrorists doing their dirty work?

What requires that same battle cry to be grafted onto its national flag, along with “the sacred phrase of ‘There is no God but Allah and Mohammad is his prophet’�?

What, in the formation of families and upbringing of children, requires the “elimination of traditions contrary to the principles of [the] sacred religion of Islam�?

What requires the nation’s president to be a Muslim, and to swear to Allah, at the beginning of the oath of office, “to obey and safeguard the provisions of the sacred religion of Islam�? What requires the same oath of all public ministers?

What permits its judges to be schooled in Islamic jurisprudence (in lieu of any civil legal training) and requires that, upon assuming their offices, those judges take an oath “to support justice and righteousness in accord with the provisions of the sacred religion of Islam�?

What permits its highest court, even if predominantly comprised of judges trained in Islamic law, to interpret for all departments of government the meaning of any law or treaty?

What requires, when no other law directly applies to a question, that the courts decide it “in accord with the Hanafi jurisprudence� (Hanafi being one of the four major schools of Sunni Islamic law), with the lone exception that Shia Islamic principles can be applied in legal cases exclusively involving Shiite Muslims?

What permits any of its terms to be altered with the sole exception that: “The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended�?

The answer, which will come as no surprise to followers of the Abdul Rahman apostasy trial in Kabul, is the Afghan constitution. This is the celebrated foundational law which came into force on January 4, 2004, to the ringing praises of Zalmay Khalilzad, then the American ambassador under whose kneading the drafting process was completed.

Ambassador Khalilzad — who would later bring this same magic touch to Iraq — cooed at the time that the new constitution “set[] forth parallel commitments to Islam and to human rights.� This was double-edged diplo-speak. If by “parallel,� Khalilzad meant there were some sonorous human-rights tropes in the document, that was surely true — enough to camouflage, at least for a while, the embarrassing fact that the Taliban itself could have ruled without much difficulty under the constitution’s terms. But if one takes “parallel� as it is normally understood — i.e., as connoting a sense of rough equality running along two related tracks — the State Department was deluding itself. Or deluding the rest of us.

American newspapers and television networks are in for a scolding too. I had no idea how extreme parts of the constitution are despite reading numerous stories about it.

Posted by Conor at March 28, 2006 01:13 AM