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When the Afghanistan constitutional assembly, or loya jirga, decided on a new constitution for Afghanistan, everyone from the New York Times to President George W. 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 Timesop-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.

Shari'ah by any other name
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 Reuters. "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."

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January (Web-only) 2004, Vol. 48