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The New Afghan Constitution
Will It Respect Women's Rights? Will Its Mixture of Religion and Democracy Work?


Thursday, Jan. 15, 2004

Last week, headscarves and turbans took the place of powdered wigs as delegates to Afghanistan's Constitutional conventional approved a new Constitution.

The charter, which embraces democracy, human rights, and equality for women, holds the promise of taking this hobbled nation out of the Dark Ages toward modernity. Indeed, the American ambassador to Afghanistan, Zalmay Khalilzad, called it "one of the most enlightened Constitutions in the Islamic world."

Yet the old Enlightenment required the separation of church and state. And the new Afghan Constitution, in contrast, mixes democracy and religion, proclaiming an Islamic Republic of Afghanistan.

Observers herald the new charter as a blueprint for democracy in the Muslim world, especially Iraq. In much of that world, secularism is not viewed as politically viable. Accordingly, the Afghan charter is being cheered as the next best thing -- on the theory that a religious democracy is better than no democracy at all.

But is the new Afghan Constitution truly enlightened? In particular, should we worry that under this Constitution, women's rights will be given short shrift? Or should women embrace this Constitution as a new model for Islamic democracy?

On that score, I think we can be optimistic, but should remain cautious.

A Religious Democracy, Embodied by an Islamic Constitution

Afghanistan's new Constitution is unabashedly Islamic. The first Article declares Afghanistan an "Islamic Republic." Islam is declared to be the official religion of the state. And the Constitution expressly bars any law "contrary to the beliefs and provisions of the sacred religion of Islam."

Clearly the model is not that of the United States, where a judge can lose his job for hanging the Ten Commandments in his courthouse. In the Islamic Republic of Afghanistan, civil code must be consistent with religious code.

A Strong Emphasis on Democracy and Human Rights

At the same time, this Constitution is unflinchingly democratic and pro-human rights. The state is obliged "to create a prosperous and progressive society based on social justice," to "protect human rights," and to realize "democracy."

The Constitution also creates a specific mechanism for enforcing these ideals. It requires the government to monitor human rights abuses through a newly established Independent Human Rights Commission of Afghanistan.

How will human rights violations be defined? Again, the Constitution is specific. It expressly requires the state to "abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights." (Emphasis added.)

Enforcing the Convention on the Elimination of Discrimination Against Women

This is especially significant for women because Afghanistan acceded last year to the Convention on the Elimination of Discrimination Against Women (CEDAW). Thus, under the new Afghan Constitution, the Independent Human Rights Commission will be able to enforce CEDAW, among other "international conventions that Afghanistan has signed."

Significantly, CEDAW prohibits sex discrimination in both public and private realms. (Ironically, for this very reason, the United States has still not ratified CEDAW.)

Other Constitutional Provisions Affecting Women's Rights

Importantly, the Afghan Constitution also declares women the equal of men under Afghan law, and commits the state to take some affirmative steps towards women's equality. For instance, the Constitution obligates the state to promote women's education.

Perhaps most significantly, the Constitution adopts quotas for membership in Parliament, setting aside one quarter of the seats for women. (In another irony, soon the United States Congress, whose membership is currently less than fifteen percent female, will look much more like an old boy's club than the Afghani Parliament will.)

The Constitution Leaves Open Some Tough Church/State Questions

The good news, then, is that the Afghani Founders clearly believe that religion and rights can be reconciled. This, in itself, deals a sharp blow to fundamentalists who dispute such a claim. But practically speaking, the new Constitution offers little guidance for achieving this.

The result is that most of the tough questions will be left to the future Afghan Supreme Court. What, for example, if husbands decide their wives should not work based on conservative interpretations of the Koran? Or what if fathers prohibit their daughters from going to school, or force them into marriage? Will such actions violate the equal rights guarantees under the Constitution, or be upheld as consistent with Islam?

Under CEDAW, will these actions count as prohibited "private" discrimination? Or will there be a sphere of private action deemed to be too deeply private for the Constitution to reach?

The charter mandates a unified educational curriculum "based on the provisions of the sacred religion of Islam." Will this be interpreted as an obligation to provide education to men and women equally, or as a license to discriminate?

One provision upholds the interests of the family, calling for "the elimination of traditions contrary to the principles of the sacred religion of Islam." Would such traditions include women's right to work, or to an education? Or, more hopefully, would this require the elimination of oppressive cultural traditions that are inconsistent with the egalitarian aspirations of Islam? Again, the answers are anything but clear.

The Crucial Role the Afghan Supreme Court Will Play

The answers to many of these women's rights questions will turn in large part on who sits on the high court. The Afghan Constitution allows for judges to be trained in either civil or Islamic law. Either way, the way they may interpret the Constitution will be hard to predict. Judges trained in civil law might still offer fundamentalist interpretations, and judges trained in Islamic law may be progressive.

Unfortunately, elsewhere in the world, similarly ambiguous Constitutions (or other mixed governmental systems) have not proven advantageous to women. Countries such as India and Nigeria, for example, are progressive on women's issues, but in practice allow for deviations from the equality principle.

Discriminatory practices are justified, and may be upheld in court, on cultural or religious grounds. Thus, despite its Constitutional guarantees of gender equality, Nigeria recently underwent a long and painful episode where a woman was sentenced to death by stoning for adultery -- only to be saved at the last minute by a procedural ruling by a higher court.

In Afghanistan, some find solace in the fact that the final charter avoids making any explicit reference to Shari'a, the traditional Islamic law that is often interpreted to discriminate against women. But women's groups say that it is still too soon to make too much of the omission.

Disparagement of Female Constitutional Convention Delegates

Meanwhile, if the treatment of women delegates to the three-week Constitutional convention is any indication, the calls for caution may be wise indeed. Women delegates lamented that fear and corruption surrounded the Constitutional process. And they repeatedly expressed concerns that their voices were being neither heard nor respected.

A low point of the convention occurred when the chairman of the convention, Sibghatullah Mujaddedi -- who is considered a moderate -- reportedly told women delegates, "Don't try to put yourself on a level with men. Even God has not given you equal rights, because under his decision two women are counted as equal to one man." (Mujaddedi was referring to a contested provision of Islamic law that says that the testimony of two women is equivalent to that of one man in some cases.)

Democratic Religion? A New Debate About the Meaning of Being Muslim

In the end, though, all Constitutions are, without more, as Afghanistan's Hamid Karzai noted, just "a piece of paper." It is their interpretation over time and by new generations that gives them life.

To that extent, perhaps the ambiguity on the question of "which Islam?" the Constitution embodies, or should embody, may be a good thing. Rather than proclaiming any one form of Islam as supreme, the new Constitution might be seen as an invitation to open up debate about what it means to be Muslim in Afghanistan today.

Put another way, the future of religious democracy -- as represented by the Afghan Constitution -- just may turn on the acceptance of democratic religion. That is, the more democracy and debate we allow within religious communities -- allowing everyone, including women, to define religious law and identity -- the more representative Afghanistan's religious democracy will be.

Over time, the people of Afghanistan should decide what laws are consistent with Islam by defining the people's Islam. This approach recognizes that Islam, too, like a Constitution, is subject to debate, interpretation, and change.

The New Enlightenment: The Best Case Scenario for Afghanistan

Call this, then, the New Enlightenment. The old Enlightenment demanded equality in the public sphere. But it left the private spheres of culture and religion in the Dark Ages of the ruthless imposition of power, and the triumph of unreason.

The New Enlightenment goes the next mile, calling for enlightened approaches to cultural and religious identity, as well as to government. The core values of the Enlightenment -- reason, democracy, freedom of expression, and the call, in Kant's words, to "think for oneself" -- still remain. But in this New Enlightenment, they are also extended to the private spheres of culture and religion.

An Islamic Model of Women's Rights

It is becoming increasingly apparent that such movements for cultural reformation, or change from within, are crucial for attaining democracy throughout the modern world.

The Nobel Committee recognized this when it awarded the 2003 Peace Prize to Shirin Ebadi. Ebadi is an Iranian woman who is a judge and law professor and who, since the Iranian Revolution, has been working within the framework of Islam to expand rights for women and children in her country. In recognizing Ebadi herself, the Nobel Committee also implicitly recognized the value of her approach.

The 2003 Arab Human Development Report similarly calls for Arab countries to develop "an authentic, broadminded and enlightened Arab knowledge model. " Such a model, the Report stresses, must respect critical religious scholarship, activate interpretive religious jurisprudence, and perhaps most importantly, preserve "the right to differ in doctrines, religious schools and interpretations."

The Constitution's Ambiguity on Free Speech/Free Exercise Issue


To be sure, the realization of more democratic religion in Afghanistan's new religious democracy will turn on individuals' rights to dissent within their religion. Will these rights be recognized by religious institutions and figures? Will the government honor, protect, penalize, or be indifferent to their exercise?

Under the U.S. Constitution, the Free Speech and Free Exercise clauses of the First Amendment prevent the government from punishing religious dissent. But on the other hand, the Establishment Clause also prohibits the government from protecting religious dissenters from expulsion or other punishments, as long as the expulsion does not violate the secular law. It also often prohibits courts from interpreting religious dictates to judge the validity of a given religious action, such as an expulsion; to interpret religious rules, courts have held, would too greatly "entangle" church and state.

It is unclear what approach the Afghan Constitution will take on this issue. On the one hand, it provides for a right to profess a religion outside of the state religion of Islam -- creating its own limited version of a Free Exercise/Free Speech Clause. But on the other hand, the Constitution does not address rights to dissent within Islam.

In sum, the Afghan Constitution is promising. It sets the stage for an historic, new, democratic era for Afghanistan, and possibly even more of the Muslim world. But even optimists must be cautious when it comes to the Constitution -- for it is the Afghan Supreme Court's interpretations that are likely to resolve its ambiguities, and set the tone.

We can only hope the Court will recognize that to be truly successful, religious democracies -- such as the one the Afghan Constitution aspires to create -- must also encompass a right to democracy within religion. The truly hard work of laying the foundation for a new democracy through ongoing debate and dialogue is yet to come.

Madhavi Sunder is Professor of Law at the University of California, Davis. A graduate of Stanford Law School and Harvard College, she specializes in women's international human rights and intellectual property.

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