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Afghan Clerics Want Power To Issue Legally Binding Fatwas

Islamic clerics on Afghanistan's Ulema Council have asked President Hamid Karzai to expand their clout by giving them the power to issue legally binding fatwas. (file photo)
Islamic clerics on Afghanistan's Ulema Council have asked President Hamid Karzai to expand their clout by giving them the power to issue legally binding fatwas. (file photo)

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Islamic clerics on Afghanistan's Ulema Council are the country's religious authorities, but their opinions on questions of Islamic law are treated as guideposts rather than legally binding decrees.

The Ulema Council wants to change that.

Clerics have asked President Hamid Karzai to establish a new Dar al-Ifta in Afghanistan -- an institute of Islamic scholars with authority to issue Shari'a-based decrees. Unlike the nonbinding declarations from the Dar al-Ifta in countries like Egypt and Saudi Arabia, Afghan clerics want their fatwas to be enforced by the courts and national police.

Mawlawi Abdul Rahim Shah Agha, one of the Ulema clerics asking Karzai for expanded powers, says the Dar al-Ifta must be independent from Afghanistan's government and foreign influence.

"Afghanistan's clerics want to prevent Afghans from being forced to ask foreign [clerics questions about Islamic issues] so that foreign clerics won't be issuing fatwas against Afghanistan's interests in the future," Agha says.

Constitutional Implications

It's not yet clear if Karzai has the power to expand the council's authority. Presidential spokesman Siamak Heravi told RFE/RL that Karzai must first consider the constitutional implications of the request.

Afghan President Hamid KarzaiAfghan President Hamid Karzai
Afghan President Hamid Karzai
Afghan President Hamid Karzai
"It needs consideration because the work of a Dar al-Ifta and the Afghan Supreme Court may overlap. The clerics know this, so they left it for the president to consider," Heravi said. "This issue will be discussed more in the future. But as for now, no decision has been made."

According to Afghanistan's UN-backed constitution, all laws in the country must be "in accordance with Islam." But the constitution also created a balance of power between lawmakers in parliament, judges in the courts, and the presidential administration.

Lawmaker Baktash Siyawash argues that empowering the Ulema Council with legally binding fatwa authority would transform the clerics into a powerful, unelected fourth branch of government.

"Afghanistan's government structure is based on three branches of government -- the legislative, judicial, and executive. The demand of the Ulema Council to create a Dar al-Ifta is an attempt to gain legislative powers," Siyawash says. "In fact, this demand would create another branch of government and we do not have any provision for this within our constitution."

Reminiscent Of Iran

Rights advocates say the move could put Afghanistan back on a path reminiscent of the Taliban era.

The clerics already have renounced Article 22 of the constitution, which says, "The citizens of Afghanistan -- whether man or woman -- have equal rights and duties before the law."

According to Ulema Council edicts issued in March, "men are fundamental and women are secondary," women should not interact with men in the workplace or in schools, and women must always be accompanied by a male guardian when traveling.

Shukria Barakzai: "This is not Tehran. This is Afghanistan."Shukria Barakzai: "This is not Tehran. This is Afghanistan."
Shukria Barakzai: "This is not Tehran. This is Afghanistan."
Shukria Barakzai: "This is not Tehran. This is Afghanistan."
Critics also warn that empowering the clerics could lead to a system reminiscent of Iran's powerful Guardians Council.

Under Iran's 1979 constitution, the Guardians Council serves as a constitutional court and must approve all proposed legislation in parliament. Since 1991, the Guardians Council also has been empowered to reject or accept all candidates for parliament and the presidency.

"These people are demanding a Dar al-Ifta within the Supreme Court. We tell them that this is not Tehran. This is Afghanistan," says Shukria Barakzai, a prominent women's rights activist from Kabul and a member of Afghanistan's lower house of parliament. "Our law is Islamic and it is our Supreme Court that issues fatwas."

'Stifle Dissent'

Analysts say the issue puts Karzai in a difficult position because he needs the Ulema Council's support to maintain his political base and its influence to advance the peace-and-reconciliation process.  

Wadir Safi, a law professor at Kabul University, says he worries that Karzai will ultimately agree to the Ulema Council's proposal, creating an institution that could reverse many of the internationally backed reforms achieved during the past decade.

"This suggestion was something the Ulema Council and the president had discussed before," Safi says. "Behind this request, there are political goals and they want to achieve these goals 1 1/2 years from now, when foreign troops have left Afghanistan. The Ulema Council wants to stifle dissent from everyone who opposes the government by using this power."

Reza Shah-Kazemi, a research associate at the Institute of Ismaili Studies in London, says the powers held by Afghanistan's Ulema Council will have major implications for democracy and human rights in the country after most foreign troops leave in 2014.

He says the Ulema Council also faces internal challenges over theological disputes between Sunnis and Shi'a and other issues that divide moderate and extremist clerics.
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Comment Sorting
by: Elaine Savage from: UK
November 29, 2012 03:19
I am lost for words, and find it hard to believe that there are people with views like this in the world today. Not a woman in the picture shown. What have our forces been fighting for and how many British lives wasted on this futile exercise. These people do not want change. Leave them in the dark ages. it would have been more fruitful instead of sending troops, to make it possible for all women to leave this awful place, so they would not have children there and perpetuate this evil regime and theocracy. It is the women who actually have the power, if they did but realise it. Without women, no more children could be brought into such an evil. How to resolve: Instead of troops, educate the women to the point where they would refuse to have any children to these bullies. The women should be given birth control and support on how to shape their own destinies, and not have any children unless they felt they were having a child with somebody that did not have these medieval, patriarchal and ancient, evil views. Without women giving birth this evil regime and theocracy would die out.
In Response

by: Margaret E. Lung from: USA
November 29, 2012 18:09
I cannot believe the path that Afghanistan and their present government seem to be taking. I lived there twice during the time of Zahir Shah and loved it. It breaks my heart to see what is happening. It is too bad that the religious leaders are so afraid of women. It seems to be "back to the Middle Ages" and President Karzai is going right along them. Islam is not supposed to be like this.
In Response

by: Eugenio from: Vienna
November 30, 2012 15:03
Margaret is saying: "Islam is not supposed to be like this". And how is Islam supposed to be? Please enlighten us all.
In Response

by: Eugenio from: Vienna
November 30, 2012 15:02
Elaine is saying: "What have our forces been fighting for and how many British lives wasted on this futile exercise? These people do not want change. Leave them in the dark ages."
I mean, Elaine, very frankly, what surprised me is that you took 11 years in order to understand that "these people do not want change" and that it was NOT ONLY a stupidity on the part of NATO to invade Afghanistan (after, the British should know better than anyone that any such adventure is doomed to fail miserably), BUT ALSO A CRIME against the civilian population of Afghanistan.
I mean, you have for sure heard of the US regualrly bombing peacefual Afghan villages with their unmanned drones, haven't you? So, how did you expect the Afghan people to react to this kind of "reeducational measures"? By espousing sme supposed "Western values" or something?? Please :-))...

by: Walkman from: Tajikistan
November 29, 2012 09:49
Who is that guy sitting in front in suit and tie? Seems he is from Tajikistan as I feel I saw his pictures somewhere. I only wish Tajikistan learn from this horrible practices of afghans and forget bringing such kind of horrible initiatives of uneducated people!
In Response

by: Eugenio from: Vienna
November 30, 2012 15:09
Hey, Walkman, you really don't know who "that guy sitting in front in suit and tie" is? It is Camel Anatürk from Kurdistan - he was paid by the RFE/RL in order to go to Afghanistan and attend this Jirga in order for him to learn from the Ulemas something useful, so that he would then make his contributions to this Forum yet more insightful :-)))))))))).

by: Bill Webb from: Phoenix Arizona USA
November 29, 2012 11:40
"men are fundamental and women are secondary," That statement could only have been dreamed up by a muslim man that needs reassurance that he is better than a woman, when everyone else in the world knows that's not the case.

by: Ayaz from: Pakistan
December 01, 2012 12:57
The present move of the Ulema Council appears inspired by their dilemma of lack of power and legitimacy. Afghan society is presently having a dearth of enlightened and moderate people as most of them have been eliminated and silenced in the civil war that started as a holy war and ended (or for some continuing) as an unholy war with the fall of Taliban. A government that is sympathetic to the West is considered as a puppet and part of conspiracy against the larger Muslim society (Umah). Implementation of Shariah is at present a one point agenda of Taliban who present it as a panacea for all ills of the Afghan society. Hesitation in the implementation is presented by proof of the insincerity of the present Afghan government by the hardliners and conservative sections of the Afghan society.
The Ulema Council is asking for more political power to substantiate its legitimacy and power. As an organ of government it is facing incredulous suspicion by the conservatives who are asking for a stricter implementation of Islamic law (Sharia). Its status of advisory body is making it an effective organ in terms of its political power. It is asking for power in order to become legitimate. The desire might have a selfish motive as well. Those clerics who do not find a place in the political set up through ballot seek it through other means like selection into councils and boards.
After the withdrawal of the ISAF from Afghanistan, Karzai government would be under greater pressure and susceptible to compromises to the demand of the Talibans. The current demand s of Ulema Council is a move to prepare for that scenario. In this framework the Ulema Council would have silent consent of Karzai administration. This would be an attempt to win over the Afghan society to support Karzai after 2014 pull-out. As US also is eager to see Afghanistan remain stable for some years at least to present it as an example of the success of US foreign policy to the current war weary Americans, she would be happy with the current rapprochement with the Taliban insurgents. This demand of the Ulema Council appears to be given assent sooner or later, as the present political development is focused on the appeasement of Taliban so reconciliation take place ultimately. This increased weight of Ulema Council is also a mechanism of increasing the popularity of conservative elements who have more control than Karzai in the rural peripheries. We find Nadi Shah doing the same in 1929 in Afghanistan when he succeeded Bacha Saqaw who shared many features of administration and ideology with the Taliban leadership. Nadi Shah did not continue the reforms of King Amanullah Khan but started with restriction on the liberties of women and minorities in the start. Afterwards when the ground realities permitted he went in snail paced manner with the reforms and his successors continued with the reforms in piece meal fashion. Karzai if hopes to do it in the style of King Nadir Shah, has many challenges as he lack the luxury of time which Nadir Shah had in earlier part of twentieth century. He would certainly face backlash from the international community and due to shameless hunger of Taliban for taking back the whole of Afghanistan, they would come up with some other propaganda tool or ask for more until they make Karzai make himself unpopular with the Afghans and international community, then they would sneak in and take their prey.
It is now upto Karzai to build on where the international community leave or to bow to Taliban and spoil everything and fulfil their agenda.

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