From the
New York Times (free sub required):
October 19, 2003
New Afghan Constitution Juggles Koran and Democracy
By CARLOTTA GALL
KABUL, Afghanistan, Oct. 18 — The question now facing Afghans is: how to devise a constitution that combines the country's deep-rooted Islamic traditions and its aspirations for democracy?
The answer Afghans find in the next few weeks will be closely monitored by Iraqis, who have to write a constitution of their own over the next year. In Afghanistan, the process has not been easy.
After months of tortuous discussion, consultations around the country and thousands of comments sent in by the public, a commission of lawyers and experts has drawn up a draft constitution to put before the Afghan people.
"This is a moment for Afghanistan to ensure its survival or go back to the darkness," said Prof. Muhammad Amin Ahmadi, a member of the constitutional commission. "The crisis of Afghanistan has its roots in illegitimate power. We must have legitimacy and responsibility."
Last touches are still being made to the proposed constitution at the insistence of President Hamid Karzai, who has followed the drafting closely. The final version will be published within days, his aides said on Saturday. That should allow six weeks or more for public discussion before 500 delegates convene for a constitutional loya jirga, or grand assembly, that is scheduled to convene here in Kabul, the Afghan capital, on Dec. 10 to debate and approve a final version.
The commissioners say they have found a balance between the need for guarantees for both democracy and Islam. The country will be named the Islamic Republic of Afghanistan. "If the name did not include Islam, people would not feel confident," said Professor Ahmadi.
The country will be governed by civil laws as long as they are in keeping with Islam. The draft contains the same language as the country's 1964 Constitution to guarantee that "in Afghanistan no law will be made which will oppose Islamic principles."
The chief justice of Afghanistan, Fazel Hadi Shinwari, an Islamic scholar and a conservative, said he was satisfied with the draft. "Previous constitutions have been in keeping with the Koran, and this one is, too," he said. "Afghans and Muslims living in Afghanistan will accept it."
But the fine balance may not survive debate at the 500-member grand assembly, commissioners conceded. Diplomats fear that Islamic hard-liners will try to force a stronger Islamic rule.
The commissioners, who will attend the assembly to defend and explain their draft, will argue that any constitution must recognize that Afghanistan cannot survive without international protection and assistance, and that the Western powers want to see democratic standards and human rights protected in the new constitution.
The constitution will set the parameters for national elections next summer. The commissioners said the draft called for a directly elected president, supported by a vice president and a prime minister, a strong central government rather than a provincial federation, a two-chamber parliament with significant representation for women and an independent judiciary.
There are guarantees protecting the human rights and civil rights of all citizens, democracy and pluralism, as well as recognition of international conventions and measures for an open-market economy with an independent central bank.
The former king, Mohammad Zahir Shah, will continue to hold the symbolic title of "father of the nation," but there will be no return of the monarchy.
"The spirit of this constitution will provide an opportunity for the country to move on the path of democracy," said Interior Minister Ahmed Ali Jalali after the draft was put before the interim cabinet and approved a few weeks ago.
A new constitution will be an important milestone. Since the fall of the Taliban, Afghanistan has been ruled under the United Nations-sponsored Bonn accords of December 2001. Those accords laid out a plan for a new constitution and national elections within two and a half years.
President Karzai was named leader of an interim administration and later approved by a traditional loya jirga for an additional two years, until June 2004.
The constitution will not solve all of Afghanistan's problems. Warlords, drugs and the Taliban remain serious threats. But the commissioners said the new constitution was a start.
"The country cannot go on in a legal vacuum," said Prof. Musa M. Maroofi, a constitutional lawyer at Kabul University, who was one of eight co-authors of a first draft. "There should be a constitution. There should be the rule of law."
Members of an expanded commission of 35 people have traveled around the country holding public meetings as they have reworked the draft. Nearly half a million questionnaires were sent out, asking people what principles should guide the state, what rights should be guaranteed and what system of government they wanted.
They received 100,000 questionnaires, 10,000 written opinions and 300 cassettes of ideas recorded by illiterate people, said Abdul Ghafoor Lewal, spokesman for the Constitutional Review Commission.
Standing at their elbow throughout the process were representatives from the United Nations and several foreign experts to advise them.
"People want peace and security, and a government that will stop the gunrunning, warlordism and other crimes," Mr. Lewal said. "Generally, they want Afghanistan to go toward government by the people."
People also expressed an overwhelming desire for Islam to rule their lives. "There was to be no compromise on Islam," said Fatima Gailani, one of eight women on the constitution commission.
There was widespread anxiety that Afghanistan would become a secular state, Professor Maroofi said.
"The collapse of the Taliban regime created the concern for a large number of people that maybe this government, or a future government, would be so secularist that they would completely make religion irrelevant," he said. "So people needed some kind of assurance through this constitution that Islam is still the official religion of the country."
"Afghanistan is a Muslim country that wants freedom, peace and food," said Anwar ul-Haq Ahady, chairman of the Central Bank and leader of Afghan Millat, a political party. "But never such a freedom or peace at the expense of Islam."
Many expect difficult arguments at the national assembly over the structure of government, in particular the powers of the president and prime minister and parliament, as well as ethnic issues like the choice of a national language.
The draft as it stands creates a strong presidency, with powers to appoint the prime minister and cabinet, and to preside over cabinet meetings.
"The reason for this is to create stability," said Professor Ahmadi. But members of the Tajik ethnic group, the second largest group in Afghanistan after the Pashtuns, are pushing to give more power to the prime minister.
The balance of power in Afghanistan is inextricably tied up in the ethnic groups, and language will be a very sensitive issue at the grand assembly.
Pashtuns, the traditional rulers of Afghanistan, will want Pashto named as the national language, even though that means little more than having the national anthem in Pashto. But the Tajiks, who dominate the present interim government, are insisting that the two main languages, Dari and Pashto, are both made official languages, and that the national anthem be sung in both.
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