Abdul Rahman, the man now on trial in Kabul for having abandoned the religion of his birth for Christianity, will be invited to reconvert to Islam, Judge Ansarullah Mawlawizadah told the BBC on March 20. And, if Abdul Rahman agrees, "we will forgive him," Mawlawizadah said, "because the religion of Islam is one of tolerance."
If he does not, he will be judged according to Islamic law. And under the Hanafi school of jurisprudence adhered to by Afghanistan's Sunni majority and privileged by the Afghan Constitution, apostasy -- the rejection of Islam in favor of another religion -- is a crime punishable by death.
In establishing the sovereignty of the people -- and not the sovereignty of God -- the constitution enables a reform-minded judge to interpret it as a fundamentally secular document.
That is a possibility that has prompted open criticism from abroad, with critics questioning how anyone in a democratic state can be executed for their beliefs.
Other international reactions have been cautiously optimistic.
The Contradictions And Ambiguities Of The Afghan Constitution
They have some reason to be optimistic. But so too do advocates of the death penalty, because, on this and other issues of religious freedom, Afghanistan's Constitution is inherently contradictory.
Islam is central to the constitution. Indeed, the document begins with the statement: "With firm faith in God Almighty… and believing in the sacred religion of Islam." The constitution also identifies Afghanistan as "an Islamic Republic."
The constitution also provides little legal guidance about how other faiths can live or operate in this Islamic republic.
While followers of other religions enjoy the right to freely exercise "their faith and perform their religious rites within the limits and the provisions of law," neither the constitution nor the country's law set those limits. For example, there is no law that makes it clear whether a church can operate in the country. The unstated understanding seems to be that churches can operate inside diplomatic missions or in military bases but not publicly.
The constitution also states that in "Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam." This confers extraordinary power on those interpreting the laws. And so, if an Afghan court decides that it is against the "beliefs" of Islam to have a church in the country, the constitution would -- if applied literally -- support such a decision.
But despite labeling the country "an Islamic Republic," Afghanistan's Constitution can also be read as a secular document. Pakistan's Constitution proclaims that "sovereignty over the entire Universe belongs to Almighty Allah alone." Iran's Constitution links the foundation of the Islamic republican regime to the "exclusive sovereignty of Allah." By contrast, the Afghan Constitution stipulates that "national sovereignty in Afghanistan belongs to the nation." In establishing the sovereignty of the people -- and not the sovereignty of God -- the constitution enables a reform-minded judge to interpret it as a fundamentally secular document.
And, in a clause of particular relevance to the Abdul Rahman case, the constitution stipulates that Afghanistan "shall abide" by the United Nations Universal Declaration of Human Rights -- which states that "everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief."
In other words, the case against Abdul Rahman could be unconstitutional or constitutional depending whether the judges are conservative or reformers.
A Muscle-Flexing Conservative Judiciary
Unfortunately for Abdul Rahman, at the moment, the judiciary is overwhelmingly in the hands of men from conservative religious circles. They view the judiciary as their prerogative and tend to view any encroachment on their turf, whatever the reason, as a challenge to their power.
Ever since the demise of the Taliban regime, conservative judges have used their power base -- which includes a large, strong section of the National Assembly -- to challenge Afghanistan's reform-minded government.
So far, these battles have mainly raged over the limits of press freedom.
The Abdul Rahman case, though, is more challenging for President Hamid Karzai. If he does not intervene, he will upset his Western backers. If he does, he will undermine his standing among conservatives, whose support he desperately depends on.
Karzai's administration will certainly be hard-pressed to openly support Abdul Rahman's case. The main source of the conservatives' legitimacy is that they are guardians of Islamic values and the country's interpreters of Islam, and they will presumably be determined to protect that legitimacy. Nor has there been any debate on the issue of apostasy that would at least have questioned the conservatives' position and, possibly, have undermined it. It is a position that is open to question by religious scholars because the Koran contains numerous passages that could be read as supporting freedom of religious choice. One verse (Surah 2:226) states, "let there be no compulsion in religion." In another (in Surah 16:82) Prophet Muhammad is instructed that his "duty is only to preach the clear message" for those who "turn away" from Islam.
The presidential office has indicated that Karzai will not intervene in the case, but he would no doubt welcome a face-saving solution to the crisis. Mawlawizadah's comment that, if Abdul Rahman does not abandon Christianity, the court will evaluate his mental state before passing judgment might just be that face-saving compromise.