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Afghanistan: Balance Between Islamic, Secular Law Seen As Key To Constitution

Afghan Transitional Administration Chairman Hamid Karzai is expected within days to release the official text of a draft constitution that will be debated by a Constitutional Loya Jirga in December. RFE/RL correspondent Ron Synovitz spoke about the draft with RFE/RL regional analyst Amin Tarzi, who is an expert on Afghan constitutional law.

Prague, 2 October 2003 (RFE/RL) -- Members of an Afghan panel tasked with drafting a new constitution say the draft document to be unveiled by Chairman Karzai within the next week aims to balance the demands of conservative religious leaders with the concerns of those who want a secular legal and political system.

The draft constitution will be debated and voted upon by a Constitutional Loya Jirga in December. The creation of the new constitution is a critical step in the internationally backed Bonn process, which calls for democratic elections on the country's political leadership in June 2004.

Amin Tarzi, an RFE/RL regional analyst and an expert on Afghan constitutional law, says the presentation of a draft document that balances the opposing concerns in the country is a matter of practical sense.

"It has to please, [first and foremost], the two extremes, and then [it also has to satisfy those in] the middle ground. The extremes [include, on the one hand,] the extreme religious conservatives in Afghanistan. They are very powerful. They have a lot of say. They are in government. They have money, and they are pouring money into this process. Also, unfortunately, there are some extremes on the [pro-]Western side that want to make Afghanistan look like Norway [for example]. Both of those sides may not get what they want. What they are trying to do is to put it somewhere in the middle where the language pleases most people," Tarzi says.

A key issue debated by the constitutional drafting panel has been how the final document can create a balance between Islamic law (sharia) and secular law.

Afghan officials this week said the draft envisions an Islamic state without imposing the full-fledged, strict interpretation of sharia law demanded by Afghanistan's religious conservatives.

According to a preliminary draft of the constitution obtained by "The Washington Post" last week, the panel has decided to adopt mild language stating that Islam is the religion of Afghanistan and that no law "shall run counter to the sacred principles of Islam." But "The Washington Post" says the preliminary draft does not enshrine sharia law.

Tarzi notes that Afghan scholars and political observers have been predicting such a formulation for months: "I'll make a prediction that the constitution will be very vague. The constitution of Afghanistan is going to be trying to please many people. It will have a lot of preemptive symbolic language, which could be a dangerous issue. But at the stage that Afghanistan is now, it will have [to be that way]."

Another important formulation in the preliminary draft is what "The Washington Post" calls a "semi-presidential system." Under that plan, a strong executive would be chosen in a popular vote. It says the president would then name a weaker prime minister, whose appointment would have to be approved by a vote of confidence in a two-tiered parliament.

Experts like Tarzi see the creation of both a presidential and prime minister's post as a way to avoid the kind of bloody factional fighting that occurred during the early 1990s between the forces of former President Burhanuddin Rabbani, an ethnic Tajik, and those of former Prime Minister Gulbuddin Hekmatyar, an ethnic Pashtun.

But Tarzi says the danger is that the document would be responding to the immediate problems posed by factionalism in the country without addressing important long-term concerns.

"We hear right now that the draft constitution will envisage a president with a prime minister. The reason is because I think they want to balance out the [powers of] Pashtun and Tajik [factions]. I think the constitution is not looking forward to the future of Afghanistan, but it is very short-sighted. I think the constitution is basically trying to patch up something and get the election done on the Bonn Agreement time frame and then see what happens. It is a hopeful constitution, rather than a plan to make something right," Tarzi says.

Tarzi says moderates will see the draft constitution as a victory for progressive reform if it does not make sharia the primary source of law: "I urge people to look at this from the Afghan historical perspective, and not thinking that the Taliban are gone and Afghanistan has just become a Western state in the form of the United States of America or some of the Western European countries. The country has not evolved over two years suddenly into a democratic state. Therefore, it is a victory that sharia is not the sole law of the land."

Still, Tarzi says it is absolutely essential that the new constitution recognizes and respects the importance of Islam within Afghan society.

"I think the constitutional history of Afghanistan has clearly illustrated that Islam is a central fact for the life of the Afghan people. And as such, it must be represented and respected in any constitution of the country," Tarzi says. "However, history also shows that Afghanistan's ethno-sectarian diversity requires a constitution that is balanced and sensitive to more than one school of jurisprudence in Islamic law. It has to have some symbolic references to Islam that allow the inclusion, and hopefully in the future, the total sovereignty of secular law. But that is in the future. Not right now."

Tarzi predicts that Islamic law will continue to be a factor in Afghanistan under the new constitution. But he says he does not expect it to become the basis of criminal law. Rather, he says, sharia will play a role in the resolution of family disputes, questions of inheritance and in matters of marriage and divorce.